The Leveson Report in Full

The Leveson Inquiry
culture, practices and ethics of the press
AN INQUIRY INTO THE CULTURE, PRACTICES AND ETHICS OF THE PRESS REPORT
The Right Honourable Lord Justice Leveson November 2012

4 volumes not to be sold separately Volume I
AN INQUIRY INTO THE CULTURE, PRACTICES AND ETHICS OF THE PRESS

The Right Honourable Lord Justice Leveson November 2012 Volume I
Presented to Parliament pursuant to Section 26 of the Inquiries Act 2005 Ordered by the House of Commons to be printed on 29 November 2012
HC 780-I
London: The Stationery Office
250.00 4 volumes not to be sold separately
Crown copyright 2012 You may re-use this information (excluding logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/ or e-mail: psi@nationalarchives.gsi.gov.uk. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. Any enquiries regarding this publication should be sent to us at generalenquiries@levesoninquiry.org.uk This publication is available for download at www.official-documents.gov.uk ISBN: 9780102981063 Printed in the UK by The Stationery Office Limited on behalf of the Controller of Her Majestys Stationery Office ID P002525215 11/12 22930 19585
Printed on paper containing 75% recycled fibre content minimum.
The Leveson Inquiry

Contents
Volume I
Page
PARt A: the InquIRy

Chapter 1: the Announcement
1 2 3 1 2 3 4 5 6 1 2 3 1 2 3 Introduction Role of the Assessors Visits Setting up and preliminaries The gathering and presentation of evidence Challenging the evidence Other material Submissions Engagement with the public: the website Rule 13 of the Inquiry Rules 2006: the approach Rule 13 of the Inquiry Rules 2006: the practice The nature and standard of proof Scope Purpose Timing and content
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3
3 6 9
Chapter 2: the approach
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10 19 31 35 36 37
Chapter 3: Further issues of law
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38 42 43
Chapter 4: the Report
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PARt B: the PRess And the PuBlIC InteRest

Chapter 1: Introduction Chapter 2: the freedom of the press and democracy
1 2 3 4 5 6 1 2 3 4 Context A brief history of press freedom in the United Kingdom The importance of a free press: free communication The importance of a free press: public debate and holding power to account Press freedom within the rule of law and the role of statute The protection of sources and other legal privileges of the press Context Freedom of expression Personal autonomy and civil liberties Other public goods
i
53
55 56
56 58 61 63 65 68
Chapter 3: Competing public interests
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The Leveson Inquiry
Chapter 4: The responsibilities of the press

1 2 3 4 Context Press power and the impact on society Communication: truth, comment and assessability Press ethics and the role of a code of ethics
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76 76 78 81
PARt C: the PRess

Chapter 1: Context
1 2 1 2 3 4 5 6 7 8 9 10 11 1 2 3 4 5 6 7 8 1 2 3 4 Introduction Commercial pressure on the press Introduction News Corporation Associated Newspapers Ltd Northern and Shell Media Group Ltd Trinity Mirror plc The Telegraph Media Group The Guardian Media Group The Independent Group The Financial Times The regional press Magazines and periodicals Introduction Broadcasters The World Wide Web Blogs and other web-based commentary Social networking sites Other providers Enforcement Press photographers What is plurality and why does it matter? Approaches to securing plurality The history of media ownership rules in the UK from the 1990s History of the newspaper ownership regime
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Chapter 2: The press: history, governance structures and finances
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99 99 114 120 125 130 134 139 145 148 152
Chapter 3: Alternative news providers
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156 156 164 168 173 176 177 179
Chapter 4: Plurality
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180 181 183 190
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Contents
PARt d: stAndARds
Chapter 1: The historical background
1 2 3 4 5 6 7 8 1 2 3 4 5 6 7 Introduction The Royal Commission into the Press 1947 The Royal Commission of 1962 and the Younger Committee into privacy The Royal Commission of 1974 The first Report of Sir David Calcutt QC The second Report of Sir David Calcutt QC The death of Diana, Princess of Wales Conclusions Introduction The establishment of the PCC Current powers, operation and standards PressBoF Benefits of self-regulation Anti-harassment policy Complaints
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195 196 200 203 205 210 214 216
Chapter 2: Self-regulation of the press
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PARt e: CRossIng legAl BoundARIes: The CrImInAl And CIvIl lAw

Chapter 1: The legal framework Chapter 2: Police investigations start
1 2 1 2 3 4 5 6 1 2 3 4 5 6 Operation Reproof Operation Glade Introduction The genesis of Operation Motorman The search Prosecutions arising from Operation Motorman Publication of Parliamentary Reports in 2006 Conclusions Introduction The collection of evidence The prosecution strategy The outcome to the prosecution Subsequent operational decisions Police strategy for the aftermath
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251 251
Chapter 3: Operation motorman
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257 257 258 264 265 268
Chapter 4: Phone hacking: the expanding impact of Operation Caryatid
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270 273 294 307 308 325
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7 8 9 10 11 12 1 2
The reaction of the News of the World July 2009: The Guardian September 2010: The New York Times December 2010: The Guardian article and the aftermath The past unravels Conclusions: the police and the CPS Police Inquiries: Operations Weeting, Elveden and Tuleta The Management and Standards Committee
337 350 401 408 412 425
Chapter 5: A new approach to the allegations
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421 424
Volume II
PARt F: the CultuRe, PRACtICes And ethICs oF the PRess: the PRess And the PuBlIC
Chapter 1: Introduction
1 2 3 4 1 2 1 2 3 1 2 3 4 5 6 7 1 2 3 4 Overview Module One and the Terms of Reference Evidence in Module One of the Inquiry The structure of Part F of the Report The value and virtues of the UK press Some case studies Overview The complaints The harm Introduction Influence on culture at the News of the World Attitude towards individuals Intrusion Investigative journalism Approach to compliance Credibility of witnesses Introduction The Dowlers Kate and Gerry McCann Christopher Jefferies
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439 440 442 449
Chapter 2: Good practice
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Chapter 3: Complaints of an unethical press
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Chapter 4: Some practices at the news of the world
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493 494 504 509 526 528 537
Chapter 5: some case studies
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539 542 547 558
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Contents
5 6 7 8 1 2 3 4 5 6 7 8 9 10 11 12 1 2 3 4
The Rt Hon Gordon Brown MP and his sons illness Hugh Grant and the mendacious smear Sebastian Bowles Recent events: Royal photographs Introduction Lack of respect for privacy and dignity Unlawful or unethical acquisition of private information Breach of confidence and misuse of confidential and/or sensitive information Harassment Intrusion into grief and shock Treatment of children Representation of women and minorities Inaccuracy Financial controls and payments for stories Treatment of critics Complaints handling Introduction Possible causes The relevance of the internet The press response to this Inquiry
564 572 576 579
Chapter 6: Criticisms of the culture, practices and ethics of the press
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592 593 610 640 645 655 658 660 673 694 704 709
Chapter 7: Conclusion
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717 719 736 737
PArT G: The PreSS And The POlICe: The relATIOnShIP

Chapter 1: Policing with Consent: the role of the press
1 2 3 1 2 3 1 2 3 4 5 6 Introduction The purpose of the relationship and public confidence Tensions in the relationship between the media and the police Metropolitan Police Service: the Commissioners Other police forces Press departments Introduction The use and abuse of information Entertainment: an overview The perception of influence The problems of friendship Calibrating the harm: the views of Commissioners
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Chapter 2: The history of the relationship: different Approaches
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751 756 763
Chapter 3: Press and the Police: the harm and the response
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7 8 9 10 11 1 2 3 4 5 6 7 8 9
The question of corruption Independent Police Complaints Commission (IPCC) HMIC report: Without Fear or Favour Elizabeth Filkins review of the relationship between the MPs and the media Association of Chief Police Officers (ACPO) Introduction Tip offs Involvement of the press on operations Off-the-record briefings Leaks of information Gifts, hospitability and entertainment Media employment Corruption, whistleblowing and related matters Conclusion
933 943 948 960 966
Chapter 4: The press and the police: conclusions and recommendations
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980 983 984 985 987 988 990 991 994
Volume III
PArT h: The PreSS And dATA PrOTeCTIOn
1 2 1 2 3 4 5 1 2 3 4 5 1 2 3 Background The ICO: structure, governance and approach The investigation The ICO response: leadership The approach to the PCC What Price Privacy? The political campaign What Price Privacy? The reaction of the PCC and the editors Criminal proceedings in respect of journalists The use of regulatory powers Engagement with the industry: guidance and promoting good practice Engagement with victims Conclusions and the questions raised by Operation Motorman Introduction Personal information privacy and press practices Following up Operation Motorman
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Chapter 3: Other possible regulatory options
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Chapter 4: the ICo and the press today
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Contents
4 5 1 2 1 2 3 4
Following up the political campaign Phone hacking and the ICO The current views of the ICO A different perspective on the legal framework Too big for us? The struggle for a profile: political campaigning and the power of the press Independent regulation of the press: lessons learned Powers, governance and capability of the ICO: reflections of the future
1058 1059
Chapter 5: Issues about the legal framework
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1062 1065
Chapter 6: The relationship: the ICO and the press
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1097 1104 1106 1108
Chapter 7: Summary of recommendations
1111
PARt I: the PRess And PolItICIAns

Chapter 1: Introduction Chapter 2: The Conservative years
1 2 1 2 3 4 5 1 2 3 4 1 2 3 4 5 1 2 Prime Minister Thatcher: 1979-1990 Prime Minister Major: 1990-1997 The 1992 general election The 1997 general election Prime Minister Blair: 1997-2007 Prime Minister Brown: 2007-2010 Political news management Introduction and background Mr Camerons relations with the press whilst Leader of the Opposition Prime Minister Cameron: 2010-present Reflections Purchase of The Times and The Sunday Times Response to the reports of Sir David Calcutt QC Human Rights Act 1998 Data Protection Act 1998 Communications Act 2003 Introduction The plurality test and quasi-judicial procedure
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1117 1121
1121 1126
Chapter 3: new labour
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1134 1139 1143 1150 1155
Chapter 4: The Conservative revival and the coalition
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1164 1165 1209 1231
Chapter 5: Media policy: examples from recent history
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1233 1246 1262 1270 1278
Chapter 6: media policy: The BSkyB bid
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3 4 5 6 1 2 3 4 5 6 7 1 2 3 4 5
J une 2010 December 2010: The Rt Hon Dr Vince Cable MP and the Department for Business, Innovation and Skills 21 December 2010: Dr Cables comments and the transfer of function December 2010 July 2011: The Rt Hon Jeremy Hunt and the Department for Culture, Media and Sport News Corp and the Rt Hon Alex Salmond MSP Introduction The Deputy Prime Minister, the Rt Hon Nick Clegg MP The Leader of the Opposition, the Rt Hon Ed Miliband MP The First Minister of Scotland, the Rt Hon Alex Salmond MSP The Rt Hon Kenneth Clarke QC MP The Rt Hon Michael Gove MP The Rt Hon George Osborne MP Introduction The proprietors Too close a relationship Existing regulatory framework Recommendations for future relations between politicians and the press
1309 1335 1351 1407
Chapter 7: Further political perspectives on relationships with the press
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1414 1414 1416 1418 1423 1425 1427
Chapter 8: Conclusions and recommendations
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Chapter 9: Plurality and media ownership: conclusions and recommendations

1 2 3 4 5 6 Introduction Scope Measuring plurality Limits and remedies What should trigger a review? Who should be responsible for the decisions?
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Volume IV
PARt J : AsPeCts oF RegulAtIon: the lAw And the PreSS COmPlAInTS COmmISSIOn
Chapter 1: Introduction Chapter 2: the criminal law
1 2 3 4 5 Introduction The investigation of crime: complaints to the police The Investigation of crime: gathering evidence A failure of policing Police resources
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1480 1482 1485 1486 1488
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Contents
6 7 8 9 1 2 3 4 5 6 1 2 3 4 5 6 7 8
Public interest: a defence to crime Public interest: the decision to prosecute Public interest: other safeguards in the criminal process The future Introduction Civil proceedings: the present risk of litigation Litigation against the press The substantive civil law Damages Costs Introduction What the PCC did well Independence from the industry The alignment with industry The PCC as regulator Structural problems with the PCC Investigatory failures Conclusions
1489 1491 1494 1496
Chapter 3: The civil law
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Chapter 4: The Press Complaints Commission and its effectiveness
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1515 1518 1520 1530 1541 1544 1561 1576
PARt K: RegulAtoRy Models FoR the FutuRe

Chapter 1: Criteria for a regulatory solution
1 2 3 4 5 6 7 1 2 3 4 5 6 7 8 Introduction Effectiveness Fairness and objectivity of standards Independence and transparency of enforcement and compliance Powers and remedies Cost Accountability Industry acceptance of the need for reform The proposal: overview Governance and structures Complaints Standards and compliance Potential for growth Funding The Code and the Code Committee
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Chapter 2: The self-regulatory model proposed by the PCC and PressBoF
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9 10 1 2 3 4 5 6 7 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 1 2 3 1 2 3
The Industry Funding Body Incentives to membership Introduction Effectiveness Fairness and objectivity of standards Independence and transparency of enforcement and compliance Powers and remedies Cost Response of editors and proprietors to the PCC and PressBoF proposals Summary and conclusions Introduction A new regulatory body Functions and structures Should coverage be voluntary or mandatory? Incentives for membership Statutory recognition Statutory provision The Code Complaint handling Remedies and redress Sanctions Dispute resolution The role of the courts Costs and funding Protection and promotion of freedom of expression Protection of journalists The Press Council of Ireland and the Press Ombudsman Other models of press regulation: Europe and beyond Review of press regulation: Australia and New Zealand Introduction Regulatory options Regulatory tools
1610 1611
Chapter 3: Analysis of the model proposed by the PCC and PressBoF
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1614 1614 1623 1625 1632 1638 1641 1648
Chapter 4: Other proposals submitted to the Inquiry
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Chapter 5: International comparators
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Chapter 6: Techniques of regulation
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Contents
Chapter 7: Conclusions and recommendations for future regulation of the press

1 2 3 4 5 6 7 1 2 3 4 5 6 7 1 2 Introduction Options put forward A new system must include everyone Voluntary independent self-regulation Encouraging membership Giving effect to the incentives Summary of recommendations The issue The questions What standards should be complied with? What consequences should apply for breach? How should any consequences be applied? To whom should any provision apply? My views Introduction Recommendations to a new regulatory body
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Chapter 8: The alternatives
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Chapter 9: recommendations for a self-regulatory body
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PARt l: suMMARy oF ReCoMMendAtIons APPendICes

Appendix 1: Counsel to the Inquiry and the Inquiry Team Appendix 2: Submissions and correspondence statistics Appendix 3: Witnesses to the Inquiry Appendix 4: Legal materials Appendix 5: Evidence relevant to the generic conclusions on the relationship between politicians and the press: Part I, Chapter 8 Appendix 6: Bibliography
1801 1819
1821 1823 1827 1843 1955 1985
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parT a The inquiry
ChapTer 1 The announCemenT

1. Introduction
1.1 On, 13 July 2011, the Prime Minister made a statement to the House of Commons in these terms:1 In recent days, the whole country has been shocked by the revelations of the phone hacking scandal. What this countryand the Househas to confront is an episode that is, frankly, disgraceful: accusations of widespread lawbreaking by parts of our press: alleged corruption by some police officers; and, as we have just discussed, the failure of our political system over many, many years to tackle a problem that has been getting worse. We must at all times keep the real victims at the front and centre of this debate. Relatives of those who died at the hands of terrorism, war heroes and murder victimspeople who have already suffered in a way that we can barely imaginehave been made to suffer all over again. I believe that we all want the same thing: press, police and politicians who serve the public. Last night the Deputy Prime Minister and I met the Leader of the Opposition. I also met the Chairs of the Culture, Media and Sport Committee, the Home Affairs Committee and the Justice Committee to discuss the best way forward. Following these consultations, I want to set out today how we intend to proceed: first, on the public inquiry; secondly, on the issues surrounding News Internationals proposed takeover of BSkyB; and thirdly, on ethics in the police service and its relationship with the press. Before I do that, I will update the House on the current criminal investigation into phone hacking. I met Sir Paul Stephenson last night. He assured me that the investigation is fully resourced. It is one of the largest currently under way in the country, and is being carried out by a completely different team from the one that carried out the original investigation. It is being led by Deputy Assistant Commissioner Sue Akers, who I believe impressed the Home Affairs Committee yesterday. Her team is looking through 11,000 pages containing 3,870 names, and around 4,000 mobile and 5,000 landline phone numbers. The team has contacted 170 people so far, and will contact every single person named in those documents. The commissioners office informed me this morning that the team has so far made eight arrests and undertaken numerous interviews. Let me now turn to the action that the Government are taking. Last week in the House I set out our intention to establish an independent public inquiry into phone hacking and other illegal practices in the British press. We have looked carefully at what the nature of the inquiry should be. We want it to be one that is as robust as possible one that can get to the truth fastest and also get to work the quickest, and, vitally, one that commands the full confidence of the public. Clearly there are two pieces of work that have to be done. First, we need a full investigation into wrongdoing in the press and the police, including the failure of the first police investigation. Secondly, we need a review of regulation of the press. We would like to get on with both those elements as quickly as possible, while being mindful of the ongoing criminal investigations. So,
1
HC Hansard, 13 July 2011, vol 531, col 311-312
PART A | The Inquiry
after listening carefully, we have decided that the best way to proceed is with one inquiry, but in two parts. I can tell the House that the inquiry will be led by one of the most senior judges in the country, Lord Justice Leveson. He will report to both the Home Secretary and the Secretary of State for Culture, Media and Sport. The inquiry will be established under the Inquiries Act 2005, which means that it will have the power to summon witnesses, including newspaper reporters, management, proprietors, policemen and politicians of all parties, to give evidence under oath and in public. Starting as soon as possible, Lord Justice Leveson, assisted by a panel of senior independent figures with relevant expertise in media, broadcasting, regulation and government will inquire into the culture, practices and ethics of the press; its relationship with the police; the failure of the current system of regulation; the contacts made, and discussions had, between national newspapers and politicians; why previous warnings about press misconduct were not heeded; and the issue of cross-media ownership. He will make recommendations for a new, more effective way of regulating the pressone that supports its freedom, plurality and independence from Government, but which also demands the highest ethical and professional standards. He will also make recommendations about the future conduct of relations between politicians and the press. That part of the inquiry we hope will report within 12 months. The second part of the inquiry will examine the extent of unlawful or improper conduct at the News of the World and other newspapers, and the way in which management failures may have allowed it to happen. That part of the inquiry will also look into the original police investigation and the issue of corrupt payments to police officers, and will consider the implications for the relationships between newspapers and the police. Lord Justice Leveson has agreed to these draft terms of reference. I am placing them in the Library today, and we will send them to the devolved Administrations. No one should be in any doubt of our intention to get to the bottom of the truth and learn the lessons for the future. 1.2 The Terms of Reference were then the subject of further discussion both with the devolved administrations of Scotland, Wales and Northern Ireland and other interested parties. The Prime Minister returned to the topic on 20 July 2011, when announcing the appointment of the Assessors. He said:2 We have made some significant amendments to the remit of the inquiry. With allegations that the problem of the relationship between the press and the police goes wider than just the Met, we have agreed that other relevant forces will now be within the scope of the inquiry. We have agreed that the inquiry should consider not just the relationship between the press, police and politicians, but their individual conduct too. We have also made it clear that the inquiry should look not just at the press, but at other media organisations, including broadcasters and social media if there is any evidence that they have been involved in criminal activities. 1.3 Thus, the Terms of Reference of the Inquiry, as finally drafted, are: part 1 1. To inquire into the culture, practices, and ethics of the press, including:
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HC Hansard, 20 July 2011, vol 531, col 919
Chapter 1 | The Announcement
(a) contacts and the relationships between national newspapers and politicians, and the conduct of each; (b) contacts and the relationship between the press and the police, and the conduct of each; (c) the extent to which the current policy and regulatory framework has failed including in relation to data protection; and (d) the extent to which there was a failure to act on previous warnings about media misconduct. 2. To make recommendations: (a) for a new more effective policy and regulatory regime which supports the integrity and freedom of the press, the plurality of the media, and its independence, including from Government, while encouraging the highest ethical and professional standards; (b) for how future concerns about press behaviour, media policy, regulation and cross-media ownership should be dealt with by all the relevant authorities, including Parliament, Government, the prosecuting authorities and the police; (c) the future conduct of relations between politicians and the press; and (d) the future conduct of relations between the police and the press. part 2 3. To inquire into the extent of unlawful or improper conduct within News International, other newspaper organisations and, as appropriate, other organisations within the media, and by those responsible for holding personal data. 4. To inquire into the way in which any relevant police force investigated allegations or evidence of unlawful conduct by persons within or connected with News International, the review by the Metropolitan Police of their initial investigation, and the conduct of the prosecuting authorities. 5. To inquire into the extent to which the police received corrupt payments or other inducements, or were otherwise complicit in such misconduct or in suppressing its proper investigation, and how this was allowed to happen. 6. To inquire into the extent of corporate governance and management failures at News International and other newspaper organisations, and the role, if any, of politicians, public servants and others in relation to any failure to investigate wrongdoing at News International 7. In the light of these inquiries, to consider the implications for the relationships between newspaper organisations and the police, prosecuting authorities, and relevant regulatory bodies and to recommend what actions, if any, should be taken. 1.4 By letter dated 28 July 2011,3 as responsible Ministers under the Inquiries Act 2005, the Rt Hon Jeremy Hunt MP (then the Secretary of State for Culture Media and Sports) and Baroness Browning (then a Minister of State at the Home Office) appointed me to Chair the Inquiry pursuant to s3(1)(a) of the Act. On the same date, their appointment having previously been announced by the Prime Minister, acting pursuant to s11(2)(a) of the Act, the Ministers appointed six Assessors with a wide range of professional experience to assist the Inquiry.
http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Lord_Justice_Leveson_Redacted.pdf
These were Sir David Bell,4 Shami Chakrabarti CBE,5 Lord (David) Currie,6 Elinor Goodman,7 George Jones8 and Sir Paul Scott-Lee.9 1.5 From the day of the announcement of my appointment, it was necessary to identify appropriate support. A Director General with a legal background and experience at the Home Office, the Ministry of Justice and the Office of the Deputy Prime Minister, Rowena Collins Rice was an ideal appointment as Secretary to the Inquiry. Kim Brudenell, a senior solicitor from the Treasury Solicitors office was appointed Solicitor to the Inquiry; Amanda Jeffery (from the Judicial Office) and Rachel Clark (from the Department of Culture, Media and Sport and previously the Department for Business, Innovation and Skills) were appointed as Heads of Administration and Research respectively. With an eye on prudent financial management, suitable civil servants from across Government were recruited to staff the Inquiry and ensure that it could proceed expeditiously and efficiently. I also set about appointing counsel. With the assistance of the Treasury Solicitor, I selected Robert Jay QC to be Counsel to the Inquiry; with my approval he nominated David Barr and Carine Patry Hoskins as junior Counsel, later adding Lucinda Boon for Module 2 (concerning the relationship between the press and the police). Counsel were assisted by junior members of the Bar in relation to the necessary research for both preparing the examination of witnesses and the subsequent collation of the evidence. At the very beginning of this Report, it is appropriate to record my enormous gratitude to the Assessors, to Counsel and to the entire Inquiry team (whose names are set out in Appendix A to this Report) for their unstinting commitment to the Inquiry and the prodigious effort that has been put into ensuring that it proceeded smoothly, to budget and, most important, was able appropriately to address the Terms of Reference within a time frame that aIlows early consideration to be given by the Government and Parliament to the way forward.
1.6
1.7
2. role of the assessors

2.1 From the outset, challenges were mounted by a number of press interests to the way in which the Inquiry was set up and, in particular, to the experience, role and responsibility of the Assessors. Having obtained cross party support for their appointment, when identifying them by name,10 the Prime Minister said of them these people have been chosen not only for their expertise in the media, broadcasting, regulation and policing, but for their complete independence from the interested parties. At the opening session of the Inquiry, I spoke of the Assessors having a central role in the work so that the report would be a collaborative effort and that if a particular recommendation was not unanimous, I shall make the contrary view clear. It was argued that this would make the Assessors into members of the panel pursuant to s4 of the Inquiries Act 2005 and that they lacked balance on the basis that their number included nobody with tabloid or midmarket newspaper experience.
2.2
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http://www.levesoninquiry.org.uk/people/assessors/sir-david-bell/ http://www.levesoninquiry.org.uk/people/assessors/shami-chakrabarti/ 6 http://www.levesoninquiry.org.uk/people/assessors/lord-david-currie/ 7 http://www.levesoninquiry.org.uk/people/assessors/elinor-goodman/ 8 http://www.levesoninquiry.org.uk/people/assessors/george-jones/ 9 http://www.levesoninquiry.org.uk/people/assessors/sir-paul-scott-lee/ 10 HC Hansard, 20 July 2011, vol 531, col 918; see also columns 922, 941, 944
2.3
In a ruling of 17 October 2011,11 I rejected the view that the Assessors were a hybrid between assessors within the meaning of s11 of the Inquiries Act 2005 and members of the determining panel (as set out in s4). I set out the role for assessors in para 3 of the Assessor Protocol in these terms:12 An assessor will take such part in the proceedings of the Inquiry as the Chairman may request, and in particular the Chairman may at any time request an assessor to:
(a) Attend the whole or part of any hearing, seminar or briefing; and/or
(b) Chair the whole or part of any seminar in an area of his or her expertise; and/ or (c) Prepare a report for the Chairman on any matter relevant to the Inquiry within the area of expertise of the assessor; and/or (d) Provide to Counsel to the Inquiry suggested lines of questioning for witnesses, in respect of any matters within his or her expertise; and/or (e) Provide the Chairman with any other assistance, or advice, on any matter relevant to the Inquiry within the expertise of the assessor. 2.4 In the event that an Assessor prepared a report that I intended to take into account, paragraph 4 of the Protocol made it clear that it should be disclosed to the Core Participants (who could submit observations upon it) and thereafter published as part of the evidence. In the event, I have not asked any Assessor to prepare a report that I intend to take into account; there is no question of any providing me with evidence or other material which it is appropriate to share with Core Participants in order that they may make submissions about it. The extent to which the Assessors would take part in or impact upon my conclusions was also explained in my ruling which includes a description of their role and responsibilities in these terms:13 30. The assessors also bring an understanding of the practical implications of potential ways forward what may, or may not, work in the fields of their respective expertise. It is that to which I refer when I speak of being collaborative and striving for unanimity. There is absolutely no point in my suggesting a way forward (if different from the present system) that everyone decries as unworkable; if that were my provisional view, I would want to be told. The process I envisage would entail, amongst other things, seeking the assistance and advice of my assessors but, as I have also explained, I may also test out possible solutions in further seminars. Again, with fairness as my touchstone, if I believe that new material is generated, that material will be shared so that all can make submissions upon it. 31 Ultimately, however, as I have made very clear, my conclusions shall be solely my conclusions. There is no question of publishing concurring views. In the spirit of openness and transparency, however, I shall identify the fact that one or more of the assessors disagrees with my conclusions and I shall explain the nature of the disagreement: in that way, those who read my report will be able to make up their own minds. 2.5 The Assessors have been scrupulous to follow the approach set out in the Protocol and ruling. They have assisted in relation to avenues of investigation and lines of enquiry both generally and to specific witnesses. Although there has been repeated criticism of the Inquiry for not
11 12
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engaging an assessor with experience of tabloid or mid-market newspapers (along with suggestions that nobody working in a broadsheet newspaper would be able to understand the dynamics of tabloid or mid-market journalism), nobody has suggested in evidence that the approach to ethical issues should be different. In any event, far from ignoring the different interests to which tabloid and mid-market newspapers appeal, the Assessors with experience of journalism have been assiduous to keep me aware, both in advance and as I was hearing the evidence, of the arguments that have in fact been put forward in favour of the needs of this profitable sector of the market. In doing so, they have continuously emphasised the perspective that was trailed particularly by Trevor Kavanagh and Kelvin MacKenzie in the seminars and underlined by editors and journalists working for titles from these sectors when they gave evidence. They have kept at the front of my mind the ways in which those titles appeal to their very large readership and the vital importance of ensuring that it is taken into account in full measure which I have done. 2.6 The role of the Assessors was described by me in my ruling of 17 October 2011, when I said:14 27. It is obviously desirable (as the Prime Minister and others have identified) that I obtain advice and assistance from those who have made their lives and careers in the various areas covered by the Inquiry, in particular in relation to dealings between the press and the public, the press and politicians and the propriety of press contact with the police. Not least, this is because I would be keen to understand any flaws or unintended consequences that might flow from suggestions that are advanced that my lack of experience would not otherwise identify. That is not to make the assessors advocates for any particular cause and that is not how I (or they) see their role. 2.7 Neither has any of the Assessors sought to act as an advocate. It has recently been suggested in a number of press reports that, in the some way, I have been subject, on the part of my Assessors, to hidden lobbying, political partisanship or self-interested influence with specific agendas in mind. That is untrue. Having spent over 40 years seeking to persuade or influence, or listening to others trying to do the same, if it had been attempted or even crept in unconsciously, I would have detected it very quickly. I have found the assistance of my Assessors, in their areas of expertise and experience, invaluable. They will, however, not mind my saying here what I have assured them of many times as we have gone along: that my task in response has been to sift, weigh and test what they have said and make such use of it as seems to me right. It should be remembered that the Assessors were selected by the Prime Minister who, I repeat, described them as having been chosen for their complete independence from the interested parties. The Leader of the Opposition welcomed the Inquiry and indeed the panel members chosen by the Prime Minister. After they were nominated, I spoke to each at length and satisfied myself that the Prime Minister was right. Full declarations of possible conflict were made by each before the start of the Inquiry: along with their CVs, these have been published on the Inquiry website throughout. When challenging the position of the Assessors in the argument that led to the ruling to which I have referred, Jonathan Caplan QC for Associated Newspapers Ltd submitted that the three journalist Assessors were not representative of the industry but made it clear, in terms, that he recognised that there was no statutory requirement that an Assessor be impartial.15 I
2.8
2.9
14
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underline that. It is an Assessors task to offer me the benefit of his or her personal perspective, expertise and experience. It is mine to take the impartial view. 2.10 The duty of confidence which the Assessors owe by law in relation to the internal deliberations of the Inquiry is there to enable them to provide their expertise fully and frankly and to protect them from external pressures. In fact, nothing that the Assessors have said or done during the course of the Inquiry would allow anyone to suggest that they had gone any further than precisely to perform the role set out in my ruling. I make one further point about the Assessors. None has been concerned with or involved in any the decisions of fact, where I have had to make my mind up about what I considered had been established to the relevant standard. Those parts of the Report that depend only on a forensic analysis of issues of fact or issues outside their expertise (for example, Part I Chapter 6 in relation to the bid for the shares of BSkyB plc), have not even been seen prior to publication of the Report.
3. Visits
3.1 In an effort, at least in part, to assuage concern that I had no experience or perception of the issues faced by the newspaper industry and the way in which newspapers operate, I have been very willing to receive evidence on the topic. Additionally, I offered to undertake private visits to any newspaper title that invited me. I was clear that one such newspaper should be regionally based and, prior to the commencement of the Inquiry, I visited the Southern Daily Echo in Southampton, the offices of Associated Newspapers Ltd (The Daily Mail and The Sunday Mail), Trinity Mirror plc (The Daily Mirror, The Sunday Mirror and The People) and News International Ltd (The Sun, The Times and The Sunday Times). I was treated with courtesy at each and shown not only the layout and operation but also aspects of the production of online editions. Towards the end of the hearings, I was invited to the offices of the Press Complaints Commission: having regard to the very extensive evidence that I had received both as to the operation of the Commission and the approach of its staff, I felt that to do so could give rise to misunderstanding and, furthermore, did not consider that it would add to my understanding of the issues. In the circumstances, I declined that invitation.
3.2
ChapTer 2 The approaCh

1. Setting up and preliminaries
1.1 This Inquiry is unlike any other for a number of reasons. The principal reason concerns the way in which Inquiries are generally conducted. Usually, an event such as a disaster or other type of incident giving rise to public concern occurs. The natural anxiety is to learn, first of all, what precisely has caused the event to happen and, thereafter, what should be done to prevent repetition. Albeit based on an inquisitorial model (with Counsel to the Inquiry conducting the forensic investigation), a judicial inquiry will thereafter proceed rather as any judicial investigation or trial might. Witnesses to the incident will be called and the Inquiry panel will then exercise the usual functions of a judge sitting alone and find the facts, that is to say, on the balance of probabilities, reach conclusions as to what actually happened. This exercise will usually involve deciding precisely what, as a matter of fact, caused or led to the event, who was responsible for making what decisions and what impact those decisions have had. A civil (or criminal) trial would then go further and determine the standard required by the civil (or criminal) law and decide whether that standard has been met. If it has not, civil (or criminal) liability will result. In the former case, damages or some other remedy will follow to benefit those who have suffered injury or financial loss as a consequence. A conviction in a criminal trial will lead to the imposition of a sanction or sentence. An Inquiry, however, does not lead to these consequences. Although the facts will be found as to what has happened and why, an Inquiry will go on to recommend steps that might be taken in the future to avoid similar problems. There is and will be no determination of civil or criminal liability.1 The difference in the case of this Inquiry is the fact of the criminal investigations being undertaken by the Metropolitan Police Service (MPS). The most important are Operation Weeting (into the interception of mobile telephone messages), Operation Elveden (into the payment of police officers, and, indeed, others holding public office or position, by the press) and Operation Tuleta (into other forms of computer hacking). These and other subsidiary investigations are proceeding apace and, during the course of the Inquiry, there have been a large number of arrests with journalists and others being bailed for further inquiries to be made. In a number of cases, criminal prosecutions have been commenced; these are presently awaiting trial and I anticipate that there will continue to be developments in the period which follows the publication of this Report. This is the reason for the Inquiry being split into two parts (with the question who did what to whom generally falling within Part 2, which is intended to follow the conclusion of any criminal prosecutions). One consequence, however, is that any investigation of the facts has inevitably been circumscribed, in particular, by an inability to investigate the full detail of specific criminality in the core areas of interception of mobile telephone voice mail messages and alleged bribery of public officials. This limitation must be put in context. Concern about this type of activity constituted an important factor leading to the establishment of this Inquiry and the issue cannot be ignored: it is one of the central reasons for public concern about the conduct of the press (or sections of it). In relation to each of those who have been charged or arrested, however, criminal proceedings are active (within the meaning of the Contempt of Court Act 1981).
1.2
1.3
1.4
s2(1) Inquiries Act 2005
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Chapter 2 | The Approach
1.5
This has two consequences, the implications of which are important. First, to avoid prejudice to any criminal investigation or prosecution, there are inevitable limitations on the extent to which it is appropriate to examine the evidence relating to specific incidents of such practices, let alone in relation to the identification of those who might have been involved. Second, the rights of those who have been charged or arrested must be respected and, in particular, their right not to self incriminate must be protected. This could arise either by the Inquiry inviting answers to potentially incriminating questions or, inferentially, by putting them in a position that refusal to answer questions itself generates suspicion. In the circumstances, none of those who have been arrested has been asked questions about interception of voice mail messages or payments to public officials.2 Taking full account of these issues, however, the rights of individuals do not mean that it is inappropriate to consider, as a matter of generality, the extent to which there was a recognised and understood willingness to obtain information in this way albeit in some cases, perhaps, without knowledge of (or, at the very least, due regard to) the relevant criminal law. In any event, Part 1 of the Terms of Reference covers very much more than this activity. In relation to the press and the public, quite apart from the admirable journalism conducted entirely in the public interest, and journalism which sets out simply to entertain harming nobody, its culture, practices and ethics cover many other types of conduct which have been the subject of complaint. Without intending to create a definitive list, these include deception (blagging), bullying (by reporters of members of the public and by editors of reporters in order to obtain stories), breaches of privacy and harassment, other forms of intrusion, misleading or inaccurate stories or headlines whether deliberate or accidental, discrimination and other conduct that breaches the Editors Code of Conduct.
1.6
Scope
1.7 This Inquiry has covered the culture, practices and ethics of the press which obviously includes newspapers whether printed or online: it does not include broadcasters (ultimately regulated by Ofcom). Thus, although the Director General of the BBC, then Mark Thompson, gave evidence, he did so only to provide a comparison between the approach adopted internally by the BBC Trust along with the oversight from Ofcom. In those circumstances, although there have been many calls during the Inquiry for me to expand the terms of reference to investigate other organisations (most recently the BBC in the wake of the allegations against Sir Jimmy Savile), it is simply outside the Terms of Reference within which I am working. Part 1 also covers the culture, practices and ethics of the press across a far wider canvass than the way in which it deals with the public. It is concerned with the relationship between the press and the police. This encompasses allegations that the two have become far too close, involving the payment of money or the provision of other favours for inside information, prior notice of newsworthy incidents or participation in high profile operations (including presence at arrests). It also covers the cross fertilisation of employment with retired senior police officers being engaged as newspaper columnists and journalists being employed in PR departments or as PR advisers by police services. Part 1 also deals with the relationship between the press and politicians including, in particular, the perception that, in return for political support, politicians have been too ready to allow undue influence to be exercised in relation to policy and that, in any event, the relationship between the two has not been transparent.
1.8
The problems arising from the concurrent nature of the criminal investigation are described in my ruling on the Approach to Evidence: http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Approaches-to-evidence-7November-PDF-106KB.pdf
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1.9
Taken together, this remit is almost breathtaking in its width and, from the beginning, I have been extremely conscious of a number of very significant consequences of the task that I have undertaken and the need to cope with those consequences. First, it would be all too easy to allow an investigation of the issues to spiral out of control and to become far too enmeshed in detail at the expense of the overall picture. Examples could be provided of concerns which focus on individual aspects of the Inquiry and it would be entirely legitimate to subject each to detailed analysis, providing the opportunity to anyone affected or potentially affected to challenge the inferences to be drawn. In some cases, for good reason, detail at that level has, indeed, been necessary. The contrary approach, with no attention paid to specifics, would risk creating an overview that is far too general and has little value as a true narrative of events. The need to ensure a balanced approach to the facts has to be reflected in the context of the second consideration. That is the broad time frame within which it important for me to report. I put it in that way because, without suggesting that the period of one year identified by the Prime Minister constitutes (or was intended to constitute) a straight-jacket, the imperative to deal with this issue is real; public concern at the time of the closure of the News of the World (NoTW) was intense and it is important to address the problems that were perceived and are now recognised in relation to the regulation of the press as a matter of urgency. In any event, this consideration chimes with the question of cost. At a time of fiscal austerity for the public and increasing pressure on the commerciality of the newspaper industry, it was always important that time and the resources of both were well used and not wasted on an analysis of detail that was too extensive and unnecessary for the purposes of providing a sufficient narrative. Cost is not just about legal and other financial outlay, whether by Core Participant members of the public who do not qualify for legal assistance, public authorities such as the police or police authorities, the newspaper industry or the Ministries required to fund the running of the Inquiry. Cost also encompasses the energy and time commitment of all whether participant or witness, both in responding to calls for evidence (which, in some cases, has involved an enormous amount of work) or attending to give oral evidence.
1.10
1.11
Engagement
1.12 The third consideration has been my anxiety to ensure that the industry is fully engaged in the process and to avoid the risk that this imposed Inquiry requires or has meant that their only role is to be reactive or, perhaps more serious, entirely defensive. In that regard, one concern (evidenced in fact) has been that parts of the press would consider that I approached the Inquiry without the necessary and, in my view, entirely appropriate enthusiasm and absolute commitment to freedom of expression and the independence of the press; and that this concern would fashion their approach to the Inquiry, impact on the assistance that they provided and colour the way in which they viewed any conclusion I might reach. A subsidiary concern has been that whatever view I might have about these fundamental freedoms, I would change them in the light of what they perceive to be unbalanced evidence of problems. Of course, as many have reported, it has been inevitable that a large body of the evidence would be uncomfortable for the press, if not worse, and that the positive features of our press both at a national and regional level would be lost in the welter of criticism, although reflective consideration will demonstrate that any Inquiry of this nature will inevitably focus on the problems. As I will repeat at various stages throughout this Report, I am very conscious that most journalism, most of the time meets high standards and can compete with the best journalism in the world; the Inquiry has been concerned with that which does not.
12
1.13
The fourth consideration has been the interests of the public. I have made the point that the public interest in the issues identified in the Terms of Reference is intense and, in my judgment, correctly so. It has thus been vital to ensure that the Inquiry proceeded in a way that engaged the public and provided appropriate access to it. By access, I do not mean only that the hearing of the Inquiry would be in public for that goes without saying. The concern has been to find ways, first, of providing the public with information as to the framework of law and regulation within which the press operate; second, of ensuring that the public has maximum access to the evidence and the material which forms the basis of my Report; third, of allowing and encouraging the public to feed their views into the Inquiry without losing the necessary judicial rigour with which any Inquiry must be conducted or creating the perception that I am effectively engaged in what is little more than a substantial exercise in public consultation. I approached these problems in a number of different ways which I explain in chronological order of them being put into practice. In order to provide some coherence to the evidence and so that the public could understand the approach of the Inquiry, the Terms of Reference were split into four modules: the Press and the Public, the Press and the Police, the Press and the Politicians and, finally, the Future. The first three modules were designed to provide the platform for focused evidence broadly dealing with the topic in question. I say broadly because I have not wanted to trouble witnesses with necessarily having to return to give evidence for each module. Thus, during the module concerned with the Press and the Public, the relevant editors were asked about payments or other inducements to police officers (which is Module Two), along with questions about meetings with and influence upon politicians. Conversely, certain witnesses (and, in particular, Rupert Murdoch, James Murdoch, Rebekah Brooks and Andrew Coulson) were, or at least could be (subject to allowance in the cases of Mrs Brooks and Mr Coulson to the fact that, at the time they gave evidence, they had been arrested as part of the police investigation and have now both been charged) central to a number of modules and I took the view that it was more sensible to deal with all aspects of the Inquiry towards the conclusion of the oral evidence. Furthermore, the fourth module (the Future) was not intended, as might have been thought, to be free-standing. From the outset, I have been concerned to challenge all or most of the witnesses to provide ideas for the future. I have then tested them with other witnesses and encouraged a continued dialogue between all those affected by the issues which are the subject matter of the Inquiry. In that way, I have endeavoured to ensure that, parallel to the Inquiry, others (including the industry, academic journalists and those interested in this area) engage in dialogues to ensure that all possible mechanisms for regulation are examined and considered. The purpose of Module Four, therefore, was to test possible approaches and so ensure that the final Report did as much as it possibly could to take account of all concerns and reflect a solution that not only balances the legitimate interests of all those affected by the way in which the press goes about its business, but also provides a solution, or series of solutions, that have been submitted to rigorous analysis and, hopefully, can work in the real world.
1.14
1.15
Briefing sessions
1.16 In addition to splitting the Terms of Reference into four modules, I took other steps to provide sufficient bedrock on which to build consideration of the evidence as to the need for change and the future. Having signalled my intentions and rejected submissions that it would not be
13
appropriate to proceed in this way,3 the second preliminary step was to organise a series of briefing sessions to set out the technical, legal and regulatory framework both for me and the assessors. 1.17 Although running contrary to my fundamental approach to the Inquiry, I agreed that the technical briefing (to explain methods of interception of telephone and IT systems) should be conducted in private, on the basis that there was no justification for putting into the public domain methods whereby the unscrupulous could learn how to commit what are, in fact, criminal offences. An approved summary of that briefing is, however, available and has been posted on the website. The other briefings concerned the criminal and civil law framework within which the press operate and the regulatory framework, both in relation to the press (presently through the Press Complaints Commission PCC) and also in other, comparatively related, industries. Although these briefings were not recorded, transcripts were prepared and anyone interested in the subject matter of the Inquiry has been in a position to acquaint themselves with the framework of law and regulation in order better to understand the issues that the Inquiry intended to address. These briefings are not formal parts of the record of the Inquiry; I am, however, satisfied that they accurately reflected the current position and, where those who provided them gave evidence, they were happy to incorporate into the record what they said at the briefings.
Seminars
1.18 The third preliminary step, after the briefing sessions, was to seek to widen understanding of the background and the present state of the industry while at the same time distilling the issues and starting the debate. This was taken forward by three seminars held over two full days. Again, these seminars are not formal parts of the record but, again, in the case of all those who gave presentations or otherwise contributed and who later attended to give evidence, each attested to the accuracy of what he or she then said and accepted that their contribution should be taken as part of their evidence. In each case, after a formal presentation, there was an open debate before an invited audience. The seminars were recorded and a transcript of the day was also prepared: along with the briefing sessions, these remain available on the website and can all be accessed on the website both to watch and to read.4 The first set of seminars, on Thursday 6 October 2011, was called The Competitive Pressures on the Press and the Impact on Journalism. It was chaired by Sir David Bell, supported by Elinor Goodman and George Jones, and received presentations from Claire Enders of Enders Analysis on the competitive pressures facing the press today; Phil Hall (former editor of the NoTW, Hello! Magazine and director of the editorial department at Trinity Mirror plc) on how the press operates in a competitive environment and the pressures facing editors; and Richard Peppiatt (formerly a reporter on the Daily Star) on the day to day effect of competitive pressures on working journalists. The second seminar, similarly chaired, was called The Rights and Responsibilities of the Press and received first a presentation from Alan Rusbridger (editor-in-chief of the Guardian) on why a free press matters. This was followed by Trevor Kavanagh (formerly political editor and now an associate editor and political columnist on The Sun) and Professor Brian Cathcart (formerly deputy editor of The Independent on Sunday and now Professor of Journalism at Kingston University and a founder of the Hacked Off campaign), both of whom spoke about whether there is a difference between the public
1.19
The justification for proceeding in this way is explained in my Ruling on the role of the assessors: pp10-11, paras 32-36, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Ruling-on-the-role-of-the-assessors-PDF-102-KB.pdf 4 www.levesoninquiry.org.uk/news-and-events/
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interest and the interest of the public and what questions this raised in relation to a single set of journalistic ethics. 1.20 The second day of seminars was held on Wednesday 12 October 2011. The third seminar was called Supporting a free press and high standards Approaches to Regulation. The morning was chaired by Lord Currie, supported by Shami Chakrabarti. Presentations were provided on the future for self regulation from the different perspectives of a regulator, an editor and a user by Eve Salomon (a former PCC Commissioner and currently Chair of the Internet Watch Foundation), Paul Dacre (editor-in-chief of Associated Newspapers Ltd and chair of the Editors Code Committee of the PCC) and Will Moy (Director of Full Fact, an independent fact-checking organisation) respectively. The role of corporate governance was considered by Lord Borrie (formerly Director General of Fair Trading and thereafter Chair of the Advertising Standards Authority), Stephen Hill (formerly Chief Executive Officer of the Financial Times and now a non-executive director of Channel Four television) and Sly Bailey (then Chief Executive of Trinity Mirror plc). In the afternoon, chaired by Shami Chakrabarti supported by Lord Currie, redress for breach of standards was discussed by Professor Steven Barnett (Professor of Communications at the University of Westminster), Desmond Browne QC (a leading media silk and formerly Chairman of the Bar)5 and Professor Robert Baldwin (Professor of Law at the London School of Economics specialising in regulation). Finally defending freedom of expression was the subject of presentations by John Kampfner (then Chief Executive of Index on Censorship), Professor James Curran (Professor of Communications at Goldsmiths, University of London and Chair of the Co-ordinating Committee for Media Reform) and Kelvin MacKenzie (a columnist for The Sun and the Daily Mail, formerly editor of The Sun and managing director of BskyB and Mirror Group Newspapers). It is not necessary to summarise the views expressed either in the presentations or by the others who contributed to the seminars. To such extent as they have been incorporated into the record of the Inquiry (which, during the course of subsequent evidence, most have), they will be reflected in the analysis that follows. What is important to emphasise, however, is that, with very limited exception, all the speakers saw and took the opportunity of the seminars to analyse where recent events were leading and had led the business, industry or profession of journalism; in my view, this did a great deal to open up the issues to a wider audience. Without minimising any contribution from any speaker, I particularly mention Mr Dacre who, while challenging the justification upon which the Inquiry was set up (including the credentials of those participating in it), identifying what he described as paradoxes in the current furore over the press and seeking to de-bunk what he called myths surrounding the PCC, went on to recognise the need for reform if trust was to be regained and made a number of suggestions which openly and emphatically started the debate as to the future. This was a very important recognition of the need for change which, coming from an extremely important player in the
1.21
1.22
1.23
Mr Browne was later instructed to act on behalf of Trinity Mirror plc but I am entirely satisfied that his appearance at the Seminar was as an expert in the field and not as counsel to a media group that was later to become a Core Participant
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industry, was of enormous value. It is a matter of record that, as he was perfectly entitled to do, he later resiled from at least one of the suggestions that he then made.6 1.24 These seminars had another value, which was to allow me to signal (as I have repeated many times throughout the Inquiry) that I saw the best solution as one that both the press and the public would accept as a realistic approach to the issue of regulation. The recognition that the PCC no longer held the confidence of the public (whatever might have been the position in the past) was a vital stepping stone to identifying a system that would achieve the legitimate aims of the press while, at the same time, satisfying the legitimate aspirations of the public. It is obviously important that the system works for the press and that, preferably, it is acceptable to them. However, it is even more important indeed critical that it works for the public in the sense that the public accept that the press are able to pursue legitimate investigative journalism that is in the public interest, but, at the same time, can be held to account for abuses of the freedoms which they have to pursue stories which have no discernible public interest and whether those abuses are criminal, tortuous, or merely contrary to any recognised code of legitimate journalistic practice. I believed that the editorial representatives of the press appreciated that, if it was accepted that the PCC could no longer continue as it had, this goal was a fundamental requirement of the Inquiry. I ought to add that I initially intended to hold further seminars for different aspects of the work of the Inquiry.7 In the event, as evidence became available, I decided that the impetus which had been the extremely valuable result of the first series of seminars did not require repetition. It was sufficient for public understanding of the work of the Inquiry and its direction for Counsel, Robert Jay QC, to open each module in turn, explaining precisely what it was intended to achieve and the direction that the Inquiry would take. That understanding was also aided by the identification and publication of key issues for each of the modules which, in turn, generated public response.
1.25
Broadcasting
1.26 The fourth preliminary step in relation to the broad approach concerned the extent to which it would be appropriate to allow cameras into the Inquiry room to record the evidence and thereafter to stream it live onto the Inquiry website. On the one hand, I was conscious that it would create pressure on witnesses who wished to protect their privacy and, as a result of the presence of a permanent record of their evidence, could serve to undermine that privacy. It would also serve to increase the day to day pressure on Counsel and all others participating in the work of the Inquiry. On the other hand, I recognised the significant public interest in what the Inquiry was doing and seeking to achieve, along with the very real importance in ensuring that the evidence was available for all to see in a form that was unmediated by press or other reporting. I dealt with my concern in relation to the witnesses who complained of press intrusion by ensuring that all who gave oral evidence were volunteers and understood that their evidence would be streamed on the website and available to be seen in the future; it is for that reason that I particularly recognised the value of their participation when each gave evidence.
At the third seminar, Mr Dacre said: While I abhor statutory controls, theres one area where Parliament can help the press. Some way must be found to compel all newspaper owners to fund and participate in self-regulation. http:// www.levesoninquiry.org.uk/wp-content/uploads/2011/11/RPC_DOCS1-12374597-v1-PAUL_DACRE_S_SEMINAR_ SPEECH.pdf. That is no longer his position: on 15 June 2012, he submitted: In retrospect, after hearing some of the devastating evidence to the Inquiry in the third module, I regret this suggestion because I now fear that ANY parliamentary involvement would be the thin edge of the wedge which could result in fuller statutory control of the press: p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Paul-Dacre1.pdf 7 http://www.levesoninquiry.org.uk/about/opening-remarks/
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1.27
In the event, I am satisfied that the decision to stream the work of the Inquiry (and to enter into appropriate contractual relationships with television broadcasters as to the use to which it may be put) was entirely justified. Sky News and the BBC devoted a considerable proportion of time to televising the hearings and other media news channels used the footage both on television and as part of their online reporting. When dealing with the topic of televising the Inquiry, it is important to sound a note of caution. I am conscious that a number of people have used the valuable impact of the reporting of the Inquiry in support of the argument that all court proceedings should be capable of being televised and that the present restrictions contained within s41 of the Criminal Justice Act 1925 should be removed. Although the experience of the Inquiry can inform any such debate, it is important to provide the context. The press and other professional witnesses were subject of notice under s21 of the Inquiries Act 2005 (and so were required to provide evidence and, when appropriate, attend the Inquiry). However, as I have said, the witnesses who complained about press intrusion were volunteers and understood that their evidence would be streamed and available on the website; cross examination was limited or nonexistent. In very few cases, steps were taken to preserve anonymity of appearance if not identity. In a criminal trial or family proceedings, civilian witnesses are victims, involved in personal tragedy or accidental (and, in many cases, reluctant) participants in the process of justice; they can be cross examined at length and, frequently, as to their credit. To film their evidence (particularly in high profile cases) would be to subject them to intolerable and damaging pressure which would most certainly not be in the interests of justice. Returning to the impact of the other preliminary steps that I have outlined, the briefings and the seminars had the intended effect. In addition to eliciting responses from those who were either invited to provide evidence or, pursuant to notice under s21 of the Inquiries Act 2005, were required to do so, many other interested parties and the members of the public did engage in the process of the Inquiry.
1.28
1.29
Core Participants
1.30 Running at the same time as the briefings and seminars, as a fifth preliminary step, it was necessary to determine who should be entitled to Core Participant status for any or all of the modules of the Inquiry and to decide how the Inquiry should proceed in the light of any representations that Core Participants might make. I decided to separate out applications for Core Participant status for each of the four modules, on the basis that although many interested parties would have equal interest in all aspects of the Inquiry (and so were granted on a blanket basis from the outset), a number might only be concerned with fewer aspects of the Terms of Reference. In the circumstances, I invited applications for each of the modules and dealt with them on that basis. Although deadlines for such applications passed, in the
17
main, I considered each, whenever it was made, on its merits and ruled in accordance with the letter and spirit of Rule 5(2) of the Inquiry Rules 2006.8
The approach to evidence

1.31 The sixth, and final, preliminary issue concerned the steps that I should take, while seeking to obtain a narrative of facts, to ensure that I did not prejudice any criminal investigation or potential prosecution and, at the same time, maintain a balanced and fair approach to others said to have been involved in illegal or unethical methods of gathering stories. In relation to the former, having invited submissions at an early stage (in particular from the Director of Public Prosecutions and the police), I ruled on the appropriate approach to evidence in relation to those charged with criminal offences or under investigation. My conclusion is summarised at para 1.16 above.9 Fairness (as required by s17(3) of the Inquiries Act 2005) has, however, taken me further for I have not felt it appropriate to protect the names of those who have been arrested from being linked to specific allegations of criminal conduct, while affording no such protection for those alleged to have been involved in other criminal (or, in some cases, unethical) conduct which is not being investigated (and therefore gives rise to no risk of prejudice). This approach has been criticised by those who wish to expose what is said to be the greater criminality revealed by a study of the documents seized by the Information Commissioner during Operation Motorman (the arrest of a private detective, Steve Whittamore), involving a very much greater section of the press than those seized by the police during Operation Caryatid (the arrest of Glenn Mulcaire, now being revisited in Operation Weeting). However, it is entirely consistent with the fact that the Terms of Reference are divided into two parts and that this first Part concerns the culture, practices and ethics of the press rather than individual conduct. Throughout the Inquiry, there are references to what I have described as the mantra that I have not presently been concerned with who did what to whom but culture practices and ethics. To the mantra, I have added what I have called the self-denying ordinance that, although the Inquiry has investigated with individual journalists conduct which is not the subject (or likely to be the subject) of police inquiries, so that the question of self incrimination does not arise, in the main, I have extended similar protection to individual journalists and others who are not currently the subject of any investigations.10 This approach has not been inflexible because it has been critically important to ensure that an appropriate
1.32
Module 1 rulings: http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Core-Participants-final-14.09.11. pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-judgement-relating-to-ElaineDecoulos-4-October-PDF-50.2KB.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Further-Rulingon-Core-Participants-2-Novembr-2011.pdf. Module 2 rulings: p26, [line 4 et seq], http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-25-January-20121.pdf and http://www.levesoninquiry. org.uk/wp-content/uploads/2011/11/Further-ruling-on-Core-Participants-17-February-2012.pdf. Module 3 rulings: http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Further-Ruling-on-Core-Participants-Module-35-April-2012.pdf and http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Further-Ruling-on-CoreParticipants-Government-4-May-2012.pdf. Module 4 rulings: http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Amended-Ruling-in-relation-to-Core-Particpants-for-Module-42.pdf. Applications by Ms Decoulous to appeal each decision refusing her Core Participant status were refused by the Administrative Court (Module 1 on 4 November 2011 by Moses LJ and Singh J: [2011] EWHC 3214(Admin); Module 2 on 14 March 2012 by Richards LJ and Kenneth Parker J: CO/2320/2012; and Modules 3 and 4 on 17 July 2012 by Sir John Thomas PQBD and Silber J: CO/4182/2012, CO/7190/2012) 9 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Approaches-to-evidence-7-November-PDF-106KB. pdf 10 There are numerous references in the transcripts to this approach; see, for example, the ruling in relation to Rule 13 of the Inquiry Rules 2006 [para 5], http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Application-ofRule-13-of-the-Inquiry-Rules-2006.pdf
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narrative of fact is available, against which to judge the efficacy of the present system of self regulation promulgated through the Press Complaints Commission and any proposals to amend or replace that system. 1.33 I can illustrate this necessary inhibition on what I have been able to do with a simple example. In his first statement to the Inquiry, the editor of The Times, James Harding, made a passing reference to a single instance of computer hacking. This was not investigated further at that time but, in a masterly analysis, David Allan Green linked the reference to the exposure of a blogger known as Nightjack. That led to a letter and a further statement from Mr Harding which resulted in his being recalled to give evidence. Because the Nightjack incident had been the subject of litigation, the then legal manager of The Times, Mr Alastair Brett, appeared at the Inquiry when the matter was analysed in some detail. On the basis of this evidence, it would certainly be possible to draw a number of important conclusions about what happened at The Times and about internal governance and legal risk management. However, because the journalist who was said to be at the centre of this incident has now been arrested for offences of computer hacking and attempting to pervert the course of justice, it is not appropriate to risk prejudice to that investigation or to any possible trial by further discussing it. A further consequence of this has been the need to avoid the possibility of inferential criticism of those who are currently the subject of criminal investigations. So, for example, a criticism of the governance arrangements at a particular newspaper, whether in general terms or directed at particular members of the management team, could, by implication, be interpreted as a criticism of others, elsewhere within the organisation. The requirement on me to tread this careful path might mean that some readers of this Report are surprised that a number of senior executives who gave evidence are not subject to the criticisms that might otherwise have been expected or, at least, discussed. It is, however, the consequence of the imperative not to or cause substantial prejudice to the investigation or prosecution of allegations of crime.
1.34
2. The gathering and presentation of evidence

Module One
2.1 As I have explained, many public inquiries follow some incident or event which has immediately been the subject of police or other investigation, so that the product of that investigation will be able to form the basis body of evidence upon which the inquiry can rely for its facts. In the case of this Inquiry, however, although aspects of the Terms of Reference had been or were the subject of litigation,11 the police investigation was ongoing. Although the Inquiry obtained evidence both from the civil and public law actions, the collection of evidence even for Module One (the press and the public) required trawling from a very wide range of people including (a) individuals who complained that they have been the subject of press criminality or intrusion (one of whom gave evidence with the benefit of complete
11
This includes the civil actions of Gordon Taylor and Sienna Miller which were of critical importance to the greater understanding of the truth behind the assertion of one rogue reporter, the many civil actions conducted before Vos J and the public law review of the conduct of the Metropolitan Police in relation to Operation Caryatid
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anonymity),12 (b) newspaper proprietors, editors, journalists13 and support staff (including, in relation to News International, external lawyers), (c) freelance journalists, campaign groups and others who have been concerned about press conduct, (d) photographers (including paparazzi) and private detectives, (e) mobile phone operators, (f) the police and Director of Public Prosecutions, (g) the Information Commissioner and his staff, (h) the Press Complaints Commission, (i) academic journalists and (j) bloggers and internet sites. The remaining modules required different groups of people or different individuals within the relevant organisations. 2.2 Section 21(2) of the Inquiries Act 2005 provides that I could require any person, within such period as appears to be reasonable to provide evidence in the form of a written statement (including documents). For each module, save in relation to those who complained about press intrusion (whom I considered ought to have the opportunity to decline to give evidence in public about their complaints of invasions of privacy) and a number of the most senior politicians, I decided that all witnesses would be required pursuant to the Act to assist me: this was not intended to reflect a concern that witnesses would not be prepared to volunteer their assistance (as, I believe almost without exception, all were) but rather to ensure that there was a consistency of approach across all those whom the Inquiry approached. Such requests could only be made after the Inquiry had formally commenced (at the end of July 2011) and it was obviously essential to give everyone to whom requests for evidence had been addressed sufficient time to submit considered evidence. Given the summer, this meant that most of the evidence was not, in fact, available until the autumn. It then had to be assimilated and, eventually, made available to Core Participants for any comment prior to it being called. In addition to witnesses whom the Inquiry approached, an invitation was posted on the website inviting members of the public and other interested individuals or groups to submit evidence directly to the Inquiry.14 It is worth setting out the key questions posed which were as follows: The Inquiry is currently looking at the relationship between the press and the public. Were interested in hearing from professionals and the public with information and examples in response to the specific questions below. Your answers may be considered as potential evidence to the inquiry. 1. The Inquiry needs to understand how newsrooms operate, particularly in the tabloid and mid-market sectors. Can you provide a personal account of culture, practices and ethics in any part of the press and media?
http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/231111-S19-restriction-order-HJK.pdf This evidence included hearsay, anonymous material which Michelle Stanistreet the General Secretary of the National Union of Journalists sought to adduce from a number of journalists who feared for their careers if they spoke out in public. An application for this evidence to be heard was challenged by other Core Participants and subject to gateway rulings by the Inquiry: http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/AnonymousWitnesses-Ruling-PDF-64.5-KB.pdf and http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/AnonymousEvidence-28-November-2011.pdf. These were issued along with a protocol http://www.levesoninquiry.org.uk/ wp-content/uploads/2011/11/Protocol-regarding-Applications-for-Anonymity.pdf. The rulings were the subject of unsuccessful challenge in the Administrative Court (Toulson LJ, Sweeney and Sharp JJ): see R (on the application of Associated Newspapers Ltd v. The Rt Hon Lord Justice Leveson as Chairman of the Leveson Inquiry [2012] EWHC 57 (Admin), http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/assoc-news-v-chair-leveson-inquiry.pdf. There was then a substantive ruling on the merits of the application which was granted: http://www.levesoninquiry. org.uk/wp-content/uploads/2011/11/Anonymous-witnesses-ruling-7-Feb-2012.pdf 14 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Key-Questions.pdf
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2.3
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2. Seminar debates have suggested that commercial pressures were not new, were not unique to the press, and did not impact adversely on standards of journalism or ethical behaviour. The Inquiry would be interested in submissions on this, with examples where possible. 3. Some seminar attendees suggest reader loyalty limits competition between titles. Professional competition to be first or best with a story, though, could be a powerful force. Other participants suggested some papers put journalists under significant pressure to produce a story within a tight timeframe. The Inquiry would be interested in experiences of the competitive dynamics in journalism and how that impacts on the way in which journalists operate, with examples where possible. 4. With the advent of the internet and 24 hour news as well as declines in revenue and circulation, we have heard that fewer journalists are having to do more work. The seminars also raised the issue of the casualisation of the workforce. The inquiry would be interested in experiences of how this may have changed the culture in newsrooms and what it might mean in terms of journalistic practice, with examples where possible. 5. The issue of stories that attract a high degree of press attention but subsequently turn out to be false was raised at the seminars. The Inquiry would be interested in submissions from editors, reporters and subjects of such stories - why they occur (what are the pressures that drive press interest), and how they occur (what checks and balances are or should be in place to stop this happening and why do they sometimes not operate)? 6. One seminar attendee suggested that the National Council for the Training of Journalists does not teach ethics. The Inquiry would be interested in experience of how ethics are taught and promulgated amongst journalists. Standards 7. Attendees proposed that the general law, as it applies to everyone, should be the only constraint on the press. The inquiry would welcome submissions on whether, and if so why, the press should be subject to any additional constraints in relation to behaviour and standards, for example relating to accuracy, treatment of vulnerable individuals, intrusion, financial reporting or reporting on crime, other than those imposed by existing laws. 8. Editors at the seminars argued that the Editors Code was a good set of standards to work to. The Inquiry would be interested in submissions from all parties on the coverage and substance of the Editors code including accuracy and redress for those who are affected by breaches of the code. 9. It has been argued that the statutory regulation and impartiality requirements that apply to broadcasting do not chill investigative reporting on television. Broadcasters are able to rely on the printed press to break controversial stories and then follow on behind. The inquiry would be interested in submissions on the extent to which the regulatory regime for broadcasting casts a chill on broadcast reporting and the relationship between the printed press and broadcast media as a result of the different regulatory environments. Public interest 10. The Inquiry has heard strong arguments for the importance of a free press in a democratic society. The Inquiry would be interested in submissions on the special role to be played by the press in a democracy, what freedom requirements need to be
21
in place for that role to be played and the whether this role places any obligations or responsibilities on the press. 11. Weve heard arguments that sometimes it will be in the public interest for journalists and media organisations to do things that would otherwise be ethically or legally questionable. The inquiry would be interested in submissions on the extent to which, if at all, should acting in the public interest be a complete or partial defence in relation to unlawful or unethical activity in pursuit of journalism; and, if so, subject to what conditions. 12. In practice any public interest argument would need to be considered in the context of specific cases. The Inquiry would be interested in submissions on who should be responsible for reaching decisions on whether something is in the public interest, and on what basis. Illustrative examples would be helpful. 2.4 It has been suggested that the Inquiry never engaged with the public, and therefore never engaged with those who purchase tabloid or mid-market papers, with the result that the evidence has been in some sense skewed or biased against the millions who read that type of paper. In fact, as discussed below, members of the public (with different interests in the work of the Inquiry) did respond to this invitation and it proved an extremely valuable resource for material which the Inquiry would not otherwise have obtained. Further, a number of witnesses and groups who availed themselves of the opportunity to provide views and material were later invited to attend to give evidence orally so as to develop the issues which had been raised. As for the risk that only those with some criticism of the press might respond, as the questions make clear, the Inquiry was equally anxious to hear in support of the press as in criticism of it. The briefings, seminars, and the collection, examination and distillation of the evidence meant that it was not possible to start the formal hearings of the Inquiry until Monday 14 November 2011, when Robert Jay QC made an opening statement, followed by opening statements from the Core Participants. Witness evidence commenced on Monday 21 November 2011 and, for Module One, continued until 9 February 2012: 175 witnesses gave evidence over a period of 40 days and the evidence of further witnesses was read into the record of the Inquiry not only while Module One was ongoing but also, as it emerged, throughout the Inquiry and, where appropriate, even after the formal hearings had concluded. This latter process has given rise to misunderstanding which I have frequently sought to correct during the course of the Inquiry but which it is appropriate to make very clear. While the evidence on Module 1 was proceeding, a number of submissions were received from campaigning groups who argued that the approach of the PCC to third party complaints was such that there was no avenue for redress in the absence of a identified victim who was prepared to pursue a complaint on his or her own behalf. In particular, therefore, generic complaints (of misleading and inaccurate reporting of issues such as immigration, domestic violence and others) were unchallengeable. This was not simply a complaint about tone or balance (although there were such concerns as well) because it was well understood that newspapers, unlike broadcasters, were perfectly entitled to be partisan in their views. Rather, it was to do with factual accuracy and consequent comment. To that end, arrangements were made for evidence to be given from, among others, Inayat Bunglawala (Engage), Heather Harvey (Eaves Housing for Women), Anna Van Heeswijk (OBJECT), Jacqui Hunt (Equality Now), Marai Larasi (End Violence against Women) and Helen Belcher (Transmedia Watch). As explained by Fiona Fox (Science Media Centre) misleading and inaccurate reporting of
2.5
2.6
22
conceptual issues (such as climate change or science generally) were similarly not covered by the complaints system. 2.7 Submissions from different groups continued to be received covering other areas of extremely important social awareness; these included, among others, submissions concerning the treatment afforded by the press to the young, the mentally ill, the disabled and other groups in society, some of which were vulnerable and others the particular subject of press concern.15 All make the same or similar points to those which the Inquiry had already heard, albeit from the different perspective of the particular concern of that specific campaign. Quite apart from the question of the available time (given the very wide-ranging Terms of Reference and the other evidence that it was essential to capture), the question arose whether it was necessary to call this evidence orally in order to make the points that were developed in writing. In the event, I decided that it was not necessary to call more evidence; however, arrangements were made for each of these submissions (as with all other evidence read into the Inquiry) to be circulated to Core Participants so that if any advanced a reason why the evidence should not received into the record of the Inquiry, that argument could be considered. In the event, no objection was received and all this evidence was read into the Inquiry record. That means that it is published as part of the evidence of the Inquiry: I have read it and, where appropriate, included references to parts of it in this Report. What I am very anxious to emphasise, however, is that I do not consider that any of this evidence was second class or to be accorded a lesser status to the evidence that was adduced orally: it has all been important and it has all been considered. The same can be said of the submissions to the Inquiry made by others (not necessarily relating to campaigning groups concerned with third party complaints) which, having also been read into the record, has become part of the evidence in the Inquiry. As I deal with evidence that was read into the record but not called before me, I ought also to deal with complaints that were made to the Inquiry that were not adduced as evidence, not because they were not relevant to the Terms of Reference but, rather, because they were both complex and highly fact-sensitive. This would have resulted in a considerable amount of time being devoted to investigating the circumstances, without there being any corresponding value to be derived as to the generic culture, practices and ethics of the press (rather than the behaviour of those titles involved in the particular facts being examined). One example will suffice. In March 1997, a private investigator, Daniel Morgan was murdered in South East London. There have been five police inquiries into the circumstances of his death and it has been alleged that his partner, Jonathan Rees, might have been involved in his murder (he was later acquitted when the prosecution were unable to guarantee his right to a fair trial following the discovery by the police of four undisclosed crates of material). Mr Rees had been employed by the NoTW and, the nature of the relationship has been the subject of media comment. I can well understand why Mr Morgans family saw the Inquiry as an opportunity to uncover information about his death (and Mr Rees clearly visualised that possibility because he
2.8
2.9
2.10
15
Beat; Big Brother Watch; British Psychological Society; Carbon Brief; Carnegie Trust; Democratic Society; Disaster Action; Federation of Muslim Organisation; Federation of Poles in Great Britain; Full Fact; Howard League for Penal Reform; Inclusion London; Irish Traveller Movement; Joint Council for the Welfare of Immigrants; Joint Enterprise: Not Guilty by Association (JENGbA); London Muslim Centre and the East London Mosque; Make Justice Work; Migrant and Refugee Communities Forum Mind and Rethink Mental Illness; National Aids Trust; Neuroimmune Alliance; Professionals Against Child Abuse; Refugee Council; Royal College of Psychiatrists; Runnymede Trust; Samaritans Sense About Science; Support After Murder and Manslaughter (National); Transparency International UK; UK Drug Policy Commission; United Communications Ltd; Wellcome Trust, Cancer Research UK and Association of Media Research (Joint Submission); Wish; Youth Media Agency
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applied for Core Participant status on the basis that he might be the subject of criticism). Whether there should be an inquiry into this particular case is not for me to say: it is sufficient if I repeat the explanation that to have examined the issues arising would have taken weeks or months and I did not consider that the very limited time available for this Inquiry was best deployed in that way. In the event, although I made it clear that Mr Rees could make a statement for the Inquiry, he has not done so.16
Module Two
2.11 That conveniently brings me to Module Two which started on 27 February 2012. The evidence touching the relationship between the press and the police had been obtained and assimilated while Module One was proceeding. Once again, key questions for this module were also published on the website17 which, again, generated considerable public interest. The questions (which provide a good overview of some of the issues which the Inquiry was to consider in this module) were as follows: The Inquiry is now looking at the relationship between the press and the police. Were interested in hearing from professionals and the public with information and examples in response to the specific questions below. Your answers may be considered as potential evidence to the Inquiry and may be published in a redacted form as part of the Inquirys evidence. Culture, practices and ethics: 1. The Inquiry needs to understand how the relationship between the press and the police currently operates. The Inquiry would be interested in the experiences of police officers, other police staff, and journalists as to how the relationship between the press and the police works in practice. 2. The Inquiry would be interested in the experiences of police officers, other police staff, and journalists as to how the current Police Service policies and guidance in place to regulate the relationship between the press and the police work in practice. 3. The Inquiry would like to build up an overall picture of the nature and level of the interaction that currently exists between the police and the press. The Inquiry would therefore be interested to receive submissions on the type and frequency of contact which currently exists between police officers, other police staff, and the media (differentiating between local and national media contact), with examples where possible. 4. The internet, 24 hour news and social media has brought new challenges for both the police and the press. The Inquiry would be interested in the experiences of police officers, other police staff, and journalists on how this may have altered the relationship, and whether the Police Service policies and guidance in place have kept pace with this changing environment, with examples where possible. 5. The Inquiry would be interested to receive views on the level of awareness and experience that exists within the Police Service of media crime (the unlawful interception of communications, bribery of officials by the media and harassment by paparazzi and journalists, for example), with examples where possible.
16
Other examples are discussed in the ruling concerning the evidence of Peter Tickner: see http://www.levesoninquiry. org.uk/wp-content/uploads/2011/11/Ruling-of-26-March-2012.pdf 17 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Key-Questions-Module-2.pdf
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6. The Inquiry would be interested to receive views as to whether the Police Service governance arrangements, policies and guidance currently in place are sufficient to sustain a transparent and ethical relationship between the police and the press which at the same time upholds the confidentiality and rights of the victims of crime and the public more generally. 7. The Inquiry would be interested to receive submissions on what Police Service training, governance and oversight arrangements exist, and views on whether it is sufficient, to ensure that acceptable boundaries exist between the police and press, with examples where possible. 8. The Inquiry would be interested in the experiences of journalists about whether you have ever felt under any pressure not to report a story involving a police officer or member of police staff (detailing where and from whom the pressure came), with examples where possible. 9. The Inquiry would be interested to receive submissions from police officers, other police staff, and journalists on the extent to which formal and informal interaction between the press and the police is recorded for the purposes of transparency (are such records audited, and if so by whom, for example). Information control and disclosure: 10. The Inquiry would be interested to receive submissions on the extent to which systems are in place (and an assessment of whether they are adequate) to identify, prevent, manage and investigate police data leaks and breaches. 11. The Inquiry would be interested in the experiences of the victims of crime and the public more generally, who feel that they have been adversely affected (perhaps through a data leak or breach, or through the reporting of a case) by the current relationship between the press and the police, with examples where possible. The Inquiry would also be interested to receive submissions in relation to this issue on whether it is felt that the current investigation and complaint regime are adequate to properly address instances of this type. 12. The Inquiry would welcome submissions on how the police and the media working together is and can be of benefit to the public, with examples where possible. Professional Standards: 13. The Inquiry would like to receive views as to whether it is felt that adequate governance and oversight arrangements are in place for police officers and other police staff to ensure the effective management and recording of gifts and hospitality, secondary business interests, associations and conflicts of interest. 14. The Inquiry would be interested to receive views as to what type of payments, gifts or hospitality (if any) you consider to be legitimate transactions between police officers, other police staff, and the media, and is and should the approach to payments, gifts or hospitality between the press and the police be different to the approach between the police and other parties. 15. The Inquiry would be interested to receive views as to whether there should be rules in place to govern how and when police officers and other police staff leaving the Police Service can take up posts with the media, commercial or other bodies, with examples of when such a move has been problematic or brought advantages where possible.
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16. The Inquiry would be interested to receive views as to whether there should be rules in place to govern how and when members of the press, or the media more generally, can take up posts with the Police Service, with examples of when such a move has been problematic or brought advantages where possible. 2.12 At a more specific level, Module Two covered a number of different topics. First, it involved a consideration of Operation Caryatid from its inception, following a complaint by the Royal Household in relation to the interception of mobile phone messages, through to the commencement and impact of Operations Weeting, Elveden and Tuleta. To that end a number of police officers gave evidence, along with the relevant Directors of Public Prosecutions and leading counsel instructed in the prosecution of Clive Goodman and Glenn Mulcaire. Second, it concerned the more general relationship over many years between the press and the MPS, thereby involving witnesses who complained about the impact of that relationship upon themselves; the last four Commissioners and the present Commissioner of the MPS, together with many very senior officers and ex officers and personnel from the Department of Public Affairs; and journalists who had considered the relationship and crime journalists who depended upon it. Third, evidence of comparison with other regional police forces and the regional press was called both from Chief Constables, other ranks and press departments, as was evidence of the approach of the Association of Chief Police Officers. Fourth, reports prepared by the Chief Inspector of Constabulary (Sir Denis OConnor) and, for the Commissioner of the MPS (by Elizabeth Filkin), and the views of police authorities (including the relevant regulator for the MPS, the Mayors Office for Policing and Crime) also fell to be considered. This evidence broadly concluded on 4 April 2012, with the Inquiry having heard from 93 witnesses over 23 days. As I have indicated above, the evidence of a number of witnesses covered all four modules. That was particularly so in relation to Rupert Murdoch, James Murdoch, the proprietors of other newspaper groups and a number of senior staff from News Corporation or News International. This group of seven witnesses gave evidence (over two weeks in April and May 2012) between Module Two concerning the press and the police and Module 3 concerning the press and politicians.
2.13
Module Three
2.14 Module Three formally opened on 10 May 2012 and involved evidence over a period in excess of four weeks from 44 witnesses. These included some of the most senior politicians of the last 20 years (including the present and last three Prime Ministers, the Deputy Prime Minister, the Leader of the Opposition and the First Minister of Scotland), senior civil servants, special advisers and political journalists. The primary concern was the relationship between politicians of all political hues and the press, together with the impact (whether in reality or as a matter of perception) of such relationships as existed on the development and implementation of policy concerning the press. Political challenges came to the fore, however, in particular concerns about the handling by the present Government of the bid by News Corporation for those shares in BSkyB Ltd which were not already owned or controlled by Rupert Murdoch. Although only one of a number of issues regarding the relationship between politicians and the proprietors and editors of mass market newspapers over the last 30 years, the questions that arose (being of contemporary political concern) came to dominate aspects of the Inquiry. There was particular interest in an issue arising from Parliamentary Questions addressed to the Secretary of State for Culture, Olympics, Media and Sport, which were the subject
26
of a detailed account in his statement to the Inquiry.18 In the event, these Parliamentary Questions were not then pursued in the House of Commons; they were examined, at some length, when Jeremy Hunt MP gave evidence.19 This module continued until 14 June 2012, although aspects were further examined on 25-26 June. 2.15 As with the first two modules, key questions regarding the relationship between the press and politicians were identified and placed on the website20 for consideration and comment by any interested group or member of the public. Again, it provides useful context for the work of the Inquiry to set these questions out at this stage: The Inquiry is now looking at the relationship between the press and politicians. We are interested in hearing from professionals and the public with information and examples in response to the specific questions below. Your answers may be considered as potential evidence to the Inquiry and may be published in a redacted form as part of the Inquirys evidence. 1. The Inquiry is interested in the extent of public knowledge and understanding of the relationship between the media and the politicians. Where does that knowledge come from? How is it tested? What use is made of publicly available information (for example about meetings between senior politicians and leading media figures)? Has the change to the Ministerial Code in July 2011 made a difference? (The Code now states: the Government will be open about its links with the media. All meetings with newspaper and other media proprietors, editors and senior executives will be published quarterly, regardless of the purpose of the meeting.) 2. The Inquiry would like to hear views on the specific benefits and risks to the public interest arising from relationships between senior politicians, at a national level, and the media. What does the public stand to gain from this relationship? What does it stand to lose? How can the gains be maximised and the risks minimised? Are there specific considerations the Inquiry should be aware of in the run up to general elections and other national polls? 3. The Inquiry is interested in hearings views on the conditions that are necessary for a free press in a democracy to fulfil its role in holding politicians and the powerful to account. What is the nature of that role? What is the public entitled to expect of the press in fulfilling it? How can the public see for itself that the press is taking this role seriously and going about it responsibly? Are there some good examples? 4. Is there a perception that political journalism generally has moved from reporting, to seeking to make or influence political events? How far is there evidence for that, and should it be a matter of public concern or not? Does the press have a legitimate function in fulfilling a political Opposition role? 5. The Inquiry is interested in the nature of media influence on public policy in general (for example in areas such as criminal justice, immigration or European policy). Do you have views, or any specific examples, about how that influence is exercised and with what effect? How transparent is the process? Is the public well served by it?
18
pp1-14, lines 1-17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-AfternoonHearing-15-May-2012.pdf 19 One of the issues that arose in the House of Commons concerned the allegation that Mr Hunt had breached the terms of the Ministerial Code. As I have made consistently clear, my approach has been focussed on the relationship between the press and politicians and the conduct of each as a matter of generality; it is no part of my intention or my function to pass judgment on anything else and, in particular, I have not addressed the political (still less the party political) questions that have been asked 20 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Key-Questions-Module-3.pdf
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6. The Inquiry is particularly interested in the influence of the media in the content and timing of a partys media policies, and in a Government decision-making on policy or operational issues directly affecting the media. Do you have any personal examples of how this works in practice? Are the media effective lobbyists in their own causes? Do any risks arise from the Governments role in the determination of takeovers and/ or mergers of media organisations? Is there a need for additional safeguards or limits on such involvement? 7. Is there a need for plurality of voice in news providers within the press, in providers of other types of news media or across the media as a whole? How does access to news information through the internet affect the need for plurality? What level of plurality is required? Is plurality of ownership a sufficient proxy for plurality of voice? 8. Is there evidence of media influence on public and political appointments (including the tenure and termination of those appointments)? The Inquiry is interested in examples, including of cases where the public interest was, and was not, well served by such influence. 9. How far do you think politicians feel inhibited from acting in the public interest to ensure that the medias conduct, practices and ethics are themselves in the public interest? Why might that be? What would make a difference?
Module Four
2.16 Module Four commenced on 9 July 2012 and the Inquiry heard from 30 witnesses. This module was initially described as involving a discussion of emerging findings. In the event, it was clear that the Press Board of Finance (PressBoF) and the current chair of the PCC had embarked upon the process of re-casting self-regulation; this Module therefore consisted of a detailed examination not only of that model but also a substantial number of other models for the regulation of the press that had been submitted as evidence to the Inquiry. To encourage that process and assist those devising potential solutions to the problems of press regulation, the Inquiry published Draft Criteria for an Effective Regulatory Regime.21 These were not intended to be definitive but merely illustrative of the issues that had to be addressed. These criteria were as follows: In module 4 the Inquiry will hear proposals for potential press regulatory solutions. There are three aspects to the question of what regulatory regime should apply to the press in the future: firstly what a regulatory regime should do; secondly how it should be structured to achieve that; and thirdly the detailed rules that are put in place to achieve the objectives. The what is about outcomes and the how is about processes, structures and accountabilities. The detailed rules would be dealt with in the substance of any code or regulations. These three aspects of a regulatory regime need to be considered separately as they are not necessarily dependent on each other and it may be possible to achieve the desired objectives by different combinations of solutions. The Inquiry has already heard a number of suggestions in relation to the how and the purpose of module 4 is to look at those suggestions in more detail. In order to facilitate the scrutiny of the how proposals it is necessary to understand what any regulatory solution is seeking to achieve. The draft criteria for a regulatory solution below set out the criteria against which the Inquiry proposes to measure potential regulatory solutions. The Inquiry would welcome comments on these criteria.
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Draft Criteria for a Regulatory Solution 1. Effectiveness 1.1 Any solution must be perceived as effective and credible both by the press as an industry and by the public: (a) It must strike a balance, capable of being accepted as reasonable, legitimate and in the public interest by all. (b) It must recognise the importance for the public interest of a free press in a democracy, freedom of expression and investigative journalism, the rule of law, personal privacy and other private rights, and a press which acts responsibly and in the public interest. (c) It must promote a clear understanding of the public interest which would be accepted as reasonable by press, industry and public alike. (d) It must be durable and sufficiently flexible to work for future markets and technology, and be capable of universal application. 2. Fairness and objectivity of Standards 2.1 There must be a statement of ethical standards which is recognised as reasonable by the industry and credible by the public. This statement must identify enforceable minimum standards as well as articulating good practice that should be aimed for. 2.2 All standards for good practice in journalism should be driven by the public interest and must be benchmarked in a clear objective way to the public interest. 2.3 The setting of standards must be independent of government and parliament, and sufficiently independent of media interests, in order to command public respect. 3. Independence and transparency of enforcement and compliance 3.1 Enforcement of ethical standards, by whatever mechanism, must be operationally independent of government and parliament, and sufficiently independent of media interests, in order to command public respect. 3.2 In particular all relevant appointments processes must be sufficiently independent of government, Parliament and media interests to command public support. 3.3 Compliance must be the responsibility of editors and transparent and demonstrable to the public. 4. Powers and remedies 4.1 The system must provide credible remedies, both in respect of aggrieved individuals and in respect of issues affecting wider groups in society. 4.2 The regulatory regime must have effective investigatory and advisory powers. 4.3 The system should also actively support and promote compliance by the industry, both directly (for example by providing confidential pre-publication advice) and indirectly (for example by kitemarking titles own internal systems). 4.4 The system should be a good fit with other relevant regulatory and law enforcement functions.
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5. Cost 5.1 The solution must be sufficiently reliably financed to allow for reasonable operational independence and appropriate scope, but without placing a disproportionate burden on either the industry, complainants or the taxpayer. 2.17 Quite apart from the regulatory solution, Module Four also dealt with other key questions and, to that end, involved evidence from experts in diverse fields ranging from differing approaches to press regulation across the word (and, in particular, the Irish model) to data protection, from ethics and philosophy to plurality. The key questions, reflecting some of these issues, were published on the website22 and, again, interested parties and the public were invited to submit evidence which could be considered during the course of the evidence (even if only to prompt questions from Counsel to the Inquiry). These questions were as follows: Relevant aspects of the public interest 1. How would you describe the public interest in a free press? 2. How would you describe the public interest in freedom of expression? To what extent does that public interest coincide with, or diverge from, the public interest in a free press? 3. In order to maximise the overall public interest, with what other aspects of the public interest would freedom of expression, or freedom of the press, have to be balanced or limited? The Inquiry is particularly interested in the following, but there may be others: (a) the interest of the public as a whole in good political governance, for example in areas such as national security, public order and economic wellbeing, the rule of law, the proper independence and accountability of law enforcement agencies, and access to justice, and the democratic accountability of government for the formation and implementation of policy; (b) the public interest in individual self-determination and the protection and enforcement of private interests, for example privacy, including (but not necessarily limited to) the rights to privacy specified in general in Article 8 of the European Convention on Human Rights and in European and national legislation on the protection of personal data, confidentiality, the protection of reputation, and intellectual and other property rights, and individual freedom of expression and rights to receive and impart information where those interests and rights are not identical to the interests and rights of the press. 4. What are your views on the extent to which the overall public interest is currently well served, both in principle and in practice, by the current balance between the public interest in the freedom of the press and free expression on the one hand, and competing aspects of the public interest on the other? In your opinion, what
22
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changes if any would be desirable in this respect, in order to maximise the overall public interest? If relevant, please state whether those changes should be voluntary or obligatory. Press ethics 5. What would be the distinguishing features of the conduct and practices of a media industry, or any organisation which was a part of that industry, which would make it an ethical one? 6. In particular, to whom might the press be considered to owe ethical duties, and why? What might be the content of such duties? To what extent might such duties come into conflict, and how should any such conflicts be resolved? The Inquiry is particularly interested in the following as potentially owed ethical duties, but there may be others: (a) readers and consumers of the media (b) persons who are the subject matter of stories and other media products (c) the wider public (d) employees, journalists and other producers of the media (e) shareholders, investors, advertisers and others with an economic interest in the media. 7. What role might reasonably be expected to be played by a code of conduct in encouraging, inculcating or enforcing ethical behaviour by the press? What would be the distinguishing principles and features of any code of ethical conduct with universal application to the media industry? 8. To what extent does the media industrys Code of Practice (http://www.pcc.org. uk/cop/practice.html) meet the needs of an ethical code? 9. What approach would you recommend to the consideration of improvement to the nature, status, content and enforceability of the current Code? Are there changes to either content or enforceability of the current Code you would wish to see? Please explain your thinking. 10. What other changes would you consider desirable in order to encourage or constrain the press to improved standards of ethical conduct and practice? Your answer should explain the standards you consider appropriate and why, whether conformity should be encouraged or constrained, and how.
3. Challenging the evidence

3.1 Litigation in this country is generally conducted by way of adversarial process. In other words, subject to the over-riding control of the court, the parties to the litigation define the issues and the evidence to be adduced, each side disclosing the evidence on which it is intended to rely and calling such witnesses as it feels necessary to prove its case. Witnesses called by one side are cross-examined by the other side or sides, challenging evidence which is disputed and putting the case which is to be advanced so that the witness can deal with the allegations made against him or her. The role of the judge or tribunal is to stand in the middle of the exercise, intervening in the evidence to elucidate or seek explanation and then listen to the opposing arguments of the parties both as to the facts and the law, before ultimately deciding the issues at stake. Inquisitorial proceedings (more common in civil law than common law jurisdictions) are led by the judge or tribunal and involve active participation the investigation
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of the facts. There will still be an important role for the legal representatives of the parties to ensure that their case is fully considered. 3.2 The purpose of an Inquiry is not to resolve issues between parties to litigation; there are no parties and there is no litigation in place. On more than one occasion, it has appeared that at least one Core Participant has treated itself as if in adversarial litigation with the Inquiry but that is to misunderstand both the Inquiry and the role of those who participate in it. The role of the Core Participants has been to assist the Inquiry in the elucidation of the facts which form the substratum of the Terms of Reference and then to make submissions on the way forward. The point was made in specific connection to this Inquiry by Lord Justice Moses in the first of the challenges by Elaine Decoulos to my failure to grant her Core Participant status. He said [2011] EWHC 3214 (Admin) at para 5: The purpose of the Inquiry is not to vindicate individuals sufferings or claims they may have due to mistreatment by the press, but rather for all of us as citizens concerned at the relations between the press, institutions and the public. 3.3 The role of Core Participants is, therefore, totally different to that of the parties to litigation and very much more constrained than the role that might be adopted even in inquisitorial proceedings which are directed to dealing with individual complaints or claims. Furthermore, the part that is or can be taken by Core Participants (or anyone else) is defined by statute and does not fall within the general discretion of the Inquiry. Thus, Rule 10 of the Inquiry Rules 2006 is in these terms: (1) Subject to paragraphs (2) to (5), where a witness is giving oral evidence at an inquiry hearing, only counsel to the inquiry ... and the inquiry panel may ask the witness questions. (2) Where a witness, whether a core participant or otherwise, has been questioned orally in the course of an inquiry hearing pursuant to paragraph (1), the chairman may direct that the recognised legal representative of that witness may ask the witness questions. (3) Where (a) witness other than a core participant has been questioned orally in the course of an inquiry hearing by counsel to the inquiry, or by the inquiry panel; and (b) that witnesss evidence directly relates to the evidence of another witness, the recognised legal representative of the witness to whom the evidence relates may apply to the chairman for permission to question the witness who has given oral evidence. (4) The recognised legal representative of a core participant may apply to the chairman for permission to ask questions of a witness giving oral evidence. (5) When making an application under paragraphs (3) or (4), the recognised legal representative must state (a) the issues in respect of which a witness is to be questioned; and (b) whether the questioning will raise new issues or, if not, why the questioning should be permitted. 3.4 As early as 6 September 2011, I raised this provision and the potential consequences of it, observing that given the pressure on the Inquiry, subject to submissions, I may well require
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issues which Core Participants wished to raise to be discussed with Counsel to the Inquiry in the first instance; he would then be able to conduct such cross-examination as he believed appropriate and, at the same time, restrict other cross-examination.23 That was, in fact, the way in which the Inquiry proceeded but it did so in an even-handed way. By way of example, although Core Participants for affected newspapers suggested questions and lines of enquiry in relation to those who complained that they had been the victims of illegal or unethical press attention (and many of these were pursued by Counsel to the Inquiry when the witnesses gave evidence), I did not permit these witnesses to be cross examined in a manner that could have been appropriate in civil proceedings: I was not prepared to allow them potentially to be victimised again simply because they wished to complain about what had happened to them. Similarly, not only did I prevent cross examination by Core Participants of journalists and others in relation to the subject matter of criminal investigation; subject to specific exceptions and the requirements of fairness enshrined in s17(3) of the Inquiries Act 2005, neither did I generally permit it in relation to other allegations of illegal or unethical conduct. 3.5 That is not to say that the evidence has not been probed: that is the role that Counsel to the Inquiry has undertaken with rigour but always with an eye to the Terms of Reference in general and addressing the culture, practices and ethics of the press in particular. Notwithstanding the general approach, however, some aspects of the evidence have been subject to detailed examination.
Findings of fact
3.6 Although the constraints relating to the examination of witnesses are written into the statute and thus have bound me, I would not want it to be thought that I considered them to be inappropriate or inimical to the interests of justice in this particular Inquiry. Quite the reverse. Had the procedure been otherwise, this Inquiry need never have finished. In relation to the press and the public, the Inquiry has not only looked at the historical position but has traversed over 20 years of journalistic activity. Hundreds of complaints have been made and, although there is no issue about many, a lot more have been the subject of challenge (to greater or lesser effect) and could have given rise to detailed factual investigation. Those few stories that have been investigated in depth inevitably took a great deal of time: had it been necessary for each one, the time taken would have been inordinate.24 Further, the Inquiry covered far more than the press and the public. The relationship between the press and the police covered the tenure of no fewer than five Commissioners of Police for the Metropolis and crossed all national titles. Other forces, their press offices and local papers were also the subject of evidence. As for the relationship between press and politicians, in the same way that time was devoted to the bid by News Corp for the remaining shares in BSkyB Ltd, so many dominating political stories (from Iraq to the Euro) have been subject to rigorous and detailed analysis. Many have argued that this the Inquiry should have proceeded in this way on the basis that all were or may have been affected or influenced by the way in
3.7
23
p13, lines 12-22, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/leveson-inquirytranscript-060911.pdf 24 This is one of the reasons why, given the concessions that were made by the press Core Participants, it was inappropriate to investigate the detail contained in the books seized from Steve Whittamore during Operation Motorman. For the purposes of Part 1 of the Terms of Reference, I concluded that it was necessary to go so far but no further: this is dealt with below but, by way of cross reference, is evident from the rulings which sought to ensure clarity of the position: http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Ruling-In-Relation-toOperation-Motorman-Evidence-11-June-20123.pdf, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Operation-Motorman-and-ANL-10-July-2012.pdf, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Ruling-on-Future-Direction-23-July-2012.pdf
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which they were reported. The same is said for the development of press handling by the Government over the last 20 years. The effect, however, would have been an Inquiry that would have taken many years, by the end of which time the specific concerns which brought about the Inquiry in the first place (and, in particular, the issue of the regulation of the press) would have remained unaddressed, other than in whatever way the press chose themselves to address them in the meantime. That was not the brief that was contained within Part 1 of the Terms of Reference and it is not how I have sought to address them. 3.8 This means that a large number of specific individual incidents have not been the subject of very detailed factual investigation so that, subject to very limited exceptions, I do not feel in a position to make findings of fact as to what did and did not occur; neither, for the purposes of addressing the Terms of Reference is it necessary that I do so. One example, the subject of considerable press comment, will suffice. Prior to autumn 2009, The Sun had supported the Labour Party in the three preceding General Elections. During the Labour Party conference, it decided to make public a change in allegiance and thereafter to support the Conservative Party. For present purposes, although relevant to the issue of the impact of proprietors on editorial policy, the circumstances of that decision do not matter. When giving evidence, Rupert Murdoch said that after this decision had been publicised in September 2009, he received a telephone call from the Prime Minister, the Rt Hon Gordon Brown MP, which included the observation by Mr Brown that your company has declared war on my government and we have no alternative but to make war on your company.25 Both in his statement and in his evidence, Mr Brown emphatically denied having any conversation with Mr Murdoch, still less making such a remark. When he gave evidence he said: This conversation never took place. Im shocked and surprised that it should be suggested, ... There was no such conversation.26 He provided telephone records from the Downing Street switchboard (through which he says any such telephone call would have been routed) backing up this denial. It has been suggested that it is important that I resolve this conflict of evidence and express my view as to where the truth lies. I decline to do so for two very different reasons. The first is very important in the context of the nature of the Inquiry and the manner in which it has had to be approached both as a matter of statute but also, as I have indicated, practicality. It is possible to postulate circumstances in which the question of whether this telephone call took place was central to the resolution of civil litigation between the parties. In that event, considerable investigation would have focussed around the precise date and time of the alleged telephone call; questions would have been addressed to Mr Murdoch as to how he said that the call had been connected; phone records and other documents sought on discovery. Mr Murdoch would have been cross-examined at length by counsel for Mr Brown and vice versa. The question who to believe would have been capable of decision within a far fuller factual matrix. To do so, in particular, without permitting cross-examination seems to me to be unfair to both men. I recognise that judges are sometimes required to make difficult factual decisions with very little more than the information available and, if it was critical to do so, I would have had to do the best that I could. That leads me to the second reason. In short, it is neither critical nor, indeed, necessary to decide where the truth of this conversation lies: save in the limited respect of the credibility of Mr Murdoch, it is not relevant to the Terms of Reference at all.
3.9
3.10
3.11
25
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On any showing, Mr Brown would hardly have been pleased about the loss of the support for his Government of The Sun;whether and if so how he chose to communicate his view simply takes the Inquiry no further.27 3.12 In part, I have gone into the detail of this particular factual conflict because of the interest and concern that has been expressed about it. Of greater importance as a reason for doing so has been to explain the limitations of the forensic exercise that it has been possible to undertake while addressing the very wide Terms of Reference within the broad timeframe within which I have been asked to report. This Report will not provide all the answers to all the questions that could possibly arise out of the uncountable number of issues that have been raised in evidence. Those who are expecting it to do so will be disappointed.
4. Other material
4.1 The material which can fall to be used by the Inquiry is not, however, limited to the statements that have been put into evidence. It has fallen to me to determine what should be part of that record; I have deliberately adopted as wide a definition of relevance as possible, in order to ensure that as full a picture of the culture, practices and ethics of the press can be put into the public domain by the Inquiry. In that way, the public can itself make a collective decision based on the same material that has been available to me. Thus, both in advance of the Inquiry and while it has been proceeding, different press titles have throughout presented the evidence and the issues (or their perception of each) and commented on the approach, asserting facts and reaching their own conclusions both as to what I have been doing and what I have been thinking. Some titles, conversely, have offered minimal, if any, coverage of the Inquiry for their readers. Free speech requires no less and although I have occasionally raised concerns about factual accuracy,28 I stand fully behind the freedom of the press to comment critically about me, my approach, the evidence and any other aspect of the Inquiry that it sees fit to write about. Very quickly, however, it became apparent that the way in which the Inquiry was being reported told its own story about the culture and practices of the press. In the circumstances, in addition to the other evidence that has been read into the record of the Inquiry, I also decided that the product of a press cuttings service dealing with the Inquiry should also be read into the record. At several stages during the course of the hearings, I have made this fact clear. The Inquiry has not been alone in commenting on the way in which the press have reported the Inquiry. Private Eye has regularly published commentary on the way in which it has been reported; the campaign (on the website http://hackinginquiry.org/) has done the same. Bloggers have added their own comment and the Inquiry has engaged with Twitter (http:// twitter.com/@levesoninquiry) on which there has been a regular and substantial dialogue about the Inquiry both in this country and abroad. This also is a very powerful example of the proper manifestation of free speech.
4.2
4.3
27
For reasons which will become apparent, I take a slightly different view in relation to the disclosure of the medical condition of Mr Browns son: see Part F, Chapter 5 28 By way of example, p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-MorningHearing-11-January-2012.pdf
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5. Submissions
5.1 In addition to leading Counsel to the Inquiry, all those who were Core Participants for Module One made formal opening submissions at its commencement.29 There were submissions at the start of Module Two from Mr Jay, and also on behalf of the Commissioner of Police for the Metropolis and the Metropolitan Police Authority (now the Mayors Office for Policing and Crime).30 Module Three was opened only by Mr Jay.31 In the same way, Counsel to the Inquiry and the Core Participants have assisted me with argument in relation to the rulings to which I have referred above and other issues that have arisen during the course of the hearings. On more than one occasion, it was necessary to deal with disclosure of information that had been shared with Core Participants in advance of its publication: these were highly relevant during the course of the hearings but are now unnecessary further to rehearse.32 Submissions have also been received dealing with issues of evidence, on the approach to Rule 13 of the Inquiry Rules 2006 and in relation to the standard of proof, the last two of which I deal with below. Submissions have generally in writing and supplemented orally; all are also published on the website so that it is possible to see the entirety of the argument put before me as well as the ruling that followed. Final submissions on various aspects of the Inquiry have also been received following the conclusion of the various modules. In the main, they have been extremely thorough, very detailed and, as a consequence, extremely lengthy. They have clearly been the product of an enormous amount of work and I am grateful for the effort and very great care that has been put into them. The fact that some arguments and submissions have not been specifically addressed in this Report is not intended as a discourtesy either to the writers or to the arguments. Inevitably, this Report has had to focus on the Terms of Reference, whereas the relevant Core Participants have understandably cast their nets rather wider in order to deal both with the generality and the specifics of some of the issues that have been raised to such extent as they affect them. Although it was always anticipated that it could be necessary to re-convene the Inquiry, to obtain updated information in relation to the police investigations and to receive any other important evidence that had emerged following the conclusion of the hearings in July 2012, written and oral closing submissions were invited and presented by most (but not all) of the Core Participants. To such extent as they address the future, they shall be analysed during the
5.2
5.3
5.4
29
p10 line 15 et seq, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Morning-Hearing14-November-2011.pdf, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-AfternoonHearing-14-November-2011.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Morning-Hearing-15-November-2011.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Transcript-of-Afternoon-Hearing-15-November-2011.pdf; http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Transcript-of-Afternoon-Hearing-15-November-2011.pdf; http://www.levesoninquiry.org.uk/wpcontent/uploads/2011/11/Transcript-of-Afternoon-Hearing-16-November-2011.pdf 30 P6, p53 and p67 respectively, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/lev270212am.pdf 31 p62, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning-Hearing-10-May-2012.pdf 32 Ruling, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Ruling-on-Publication-of-Statements-7December.pdf ; the Restriction Order made pursuant to s 19 of the Inquiries Act 2005 http://www.levesoninquiry.org. uk/wp-content/uploads/2011/11/Amended-Section-19-Order.pdf later amended http://www.levesoninquiry.org.uk/ wp-content/uploads/2011/11/Section-19-Order-26-April-2012.pdf; and the analysis of the circumstances in which a newspaper published material which had been contained in a statement provided for the Inquiry: http://www. levesoninquiry.org.uk/wp-content/uploads/2011/11/Ruling-on-Publication-of-Statements-by-IoS-14-May-2012.pdf. For the avoidance of all doubt, the purpose of these orders and rulings were to preserve the integrity of the Inquiry: I do not consider that any of the concerns which are analysed should contribute to the conclusions that I have to reach about the culture, practices or ethics of the press
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course of the consideration of the regulatory regime, although I shall be doing so from the perspective of the press as opposed to the extent to which individual titles have behaved in such a way as requires a different approach to regulation. I saw no value in Counsel to the Inquiry making a closing submission and he did not do so.
6. Engagement with the public: the website

6.1 Before turning to the issues of law that have had to be considered as part of the Report writing process, I return to the website because it is appropriate to say something more about the way in which the Inquiry has sought to involve the public in its process and ensure that the evidence which has been given has received the widest audience. I have referred to the questions that were posted on the Inquiry website as each module came to be discussed in the evidence. The purpose was to engage with as wide a reach of members of the public as possible and to obtain as wide a range of views as possible. The extent of that response can be judged from Appendix B which sets out a detailed record of the type and number of communications received by the Inquiry through the general mailbox or otherwise. Where it was possible to do so, every communication (a number of which were anonymous) was acknowledged and considered so that a decision could be taken as to whether it was right to take what was said forward in any way. Although I recognise that a number of those who wrote will have been disappointed that they were not given the opportunity to give oral evidence, I explicitly recognise and pay tribute to the very hard work that has been put into ensuring that all the observations have been received have been acted upon appropriately. Appendix B also identifies the number of times up to the end of October 2012 that the Inquiry website has been accessed along with its reach. I believe that the Inquiry has done as much as could reasonably have been expected to engage with the public would be surprised if any public inquiry has achieved as much public access. I have no doubt that this has all contributed to the public reaction to events and the further debate as to the way forward.
6.2
6.3
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ChapTer 3 FurTher issues oF Law

1. Rule 13 of the Inquiry Rules 2006: the approach
1.1 Prior to the publication of any Report which includes explicit or significant criticism of any person, the Inquiry Rules 2006 mandate that such a person must be warned of that criticism and given a reasonable opportunity to respond. I set out the background and the legal framework in a ruling on the Application of Rule 131 which I can do no better than repeat: 8. One of the touchstones of the inquisitorial process prescribed by the 2005 [Inquiries] Act is the requirement of fairness to all. Whereas s. 17(1) of the Act provides that the procedure and conduct of the Inquiry shall be such as I direct, that provision is subject to s. 17(3) in these terms: In making any decision as to the procedure or conduct of an inquiry, the chairman must act with fairness and with regard to the need to avoid any unnecessary cost (whether to public funds or to witnesses or others). 9. No higher manifestation of that duty is apparent than that which deals with the requirement that those who may be criticised in any report have the opportunity afforded to them to deal with the basis of that criticism. The origin is to be found in the Royal Commission on Tribunals of Inquiry (Cmnd 3121, 1966) (the Salmon Report) which proposed, among other recommendations, that before a person was called as a witness, he should be informed of any allegations which are made against him and the substance of the evidence in support of them: thus were born Salmon letters although over-rigid adherence has been recognised as unhelpful: see the observations of Sir Richard Scott VC (in (1995) 111 LQR 596) to the effect that every inquiry must adapt its procedures to meet its own circumstances. 10. The next manifestation of this requirement (described as fair play in action by Sachs LJ in Re Pergamon Press Ltd [1971] Ch 388 at 405) dealt with comment on proposed criticism. Mr Robert Maxwells attempt to obtain sight of proposed draft conclusions was rejected in the Court of Appeal when Lawton LJ put the matter in this way: see Maxwell v Department of Trade and Industry [1974] QB 523 at page 541BD: Those who conduct inquiries have to base their decisions, findings, conclusions or opinions ... on the evidence. In my judgment they are no more bound to tell a witness likely to be criticised in their report what they have in mind to say about him than has a judge sitting alone who has to decide which of two conflicting witnesses is telling the truth. The judge must ensure that the witness whose credibility is suspected has a fair opportunity of correcting or contradicting the substance of what other witnesses have said or are expected to say which is in conflict with his testimony. Inspectors should do the same but I can see no reason why they should do any more. 11. Notwithstanding these judicial observations, the broad process was adopted by Lord Bingham in the BCCI Inquiry, by Sir Richard Scott in the Inquiry into Matrix Churchill and also by Sir John Chilcott in the Iraq Inquiry. This lack of clarity is itself unhelpful and potentially productive either of very substantial delay or satellite litigation (in each case with attendant cost) or both.
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Chapter 3 | Further Issues of Law
12. The 2005 Act (pursuant to which this Inquiry is being conducted) adopts a different and, in my judgment, self-contained approach to ensure fairness. First, s. 21 of the Act provides that I may by notice require any person to provide evidence in the form of a written statement along with documents. Such notices have identified, in comprehensive terms, the issues with which the statement has been required to deal; where appropriate, it has identified relevant documents or other public statements which should be addressed. It cannot, of course, deal with evidence not then seen by the Inquiry but where issues of significance have arisen before the witness arrives, forewarning has been given and, if necessary, witnesses allowed time to deal with a matter for which they were not prepared. Where the issue has arisen only after the witness has given evidence, again if it is significant, second statements have been requested and obtained; more than one witness has been required to return to give further evidence. 13. The second (and most extensive) protection is provided by Rules 13-15 of the Inquiry Rules 2006 (the 2006 Rules) which concern what are described as Warning Letters. Thus, Rule 13 provides: (1) The Chairman may send a warning letter to any person: (a) he considers maybe, or who has been, subject to criticism in the inquiry proceedings; or (b) about whom criticism may be inferred from evidence that has been given during the inquiry proceedings; or (c) who may be subject to criticism in the report, or any interim report. (2) The recipient of a warning letter may disclose it to his recognised legal representative. (3) The inquiry panel must not include any explicit or significant criticism of a person in the report, or in any interim report, unless (a) the chairman has sent that person a warning letter; and (b) the person has been given a reasonable opportunity to respond to the warning letter. 1.2 In my ruling, I explained the ways in which I have sought to ensure that the Inquiry was conducted fairly and with full regard to the position of all who might be affected. In relation to Rule 13, therefore, I concluded that a warning addressed to a section of the press consisting of the national titles (even if a number of those have not been the subject of criticism or complaint) allowed each to make submissions as to the conclusions that I should draw as to the culture, practices and ethics of the press generally (as opposed to the specific conduct of individual titles although it has been made clear titles have been free to comment on stories which are identifiably referable to them). I went on to conclude not only that generic criticisms should be evidence based, but that the justification for my concerns should be visible and capable of being understood both by those affected and by the public.2 I appreciate (as was argued by Mr Desmond Browne QC for Trinity Mirror plc) that this could allow anyone following the references through to the transcript to identify the titles and, perhaps, the relevant journalists; in reality, however, that would be possible whether or not I identified the references and, on the basis that I have not made specific findings in most individual cases, this approach does not offend the general principle that I am not focussing
1.3
p15, para 41, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Application-of-Rule-13-of-theInquiry-Rules-2006.pdf
39
on the detail of who did what to whom. It is equally consistent with the principle that my intention not to prejudice criminal proceedings means that I have not identified those alleged to have been involved in mobile phone interception; therefore, in fairness, although there are exceptions when I have considered that the narrative compels specificity, generally speaking, I have exercised similar restraint in respect of those, not being investigated, who may be responsible for similar or other illegal or unethical practices. 1.4 Conscious that any approach to Rule 13 was likely to be contentious, I arranged for the matter to be argued in principle and ruled on the approach generally. This ruling fell within to s38(1) (b) of the Inquiries Act 2005 and had any Core Participant wished to challenge it by way of judicial review, that course was open within 14 days. There was no such challenge and, insofar as generic criticism is concerned, I have followed it. I have, however, issued Rule 13 warnings to individuals (and others concerned with the relationship between the press and the public) in those circumstances where I thought fairness warranted it and, in particular, when I was concerned that any conclusion that I might reach in relation to a specific incident could be said to contain an express or implied criticism of them. The touchstone has been to provide an opportunity to make representations about identifiable concerns that I was proposing to express. Having said that, it is important that I emphasise that this Report should not be read as addressing the individual conduct of members of the press in their dealings with the public and no implied criticism should be read into the fact that references to particular complaints are inevitably to particular stories written by identifiable journalists (albeit not named in the text of the Report). I cannot repeat too often that this part of the Inquiry is not concerned with individual conduct but with the culture, practices and ethics of the press (or a section of the press) as a whole. Who would be to blame for a particular egregious story? Would it be a proprietor or editor who ordained a particular approach or a particular agenda? Would it be the journalist who felt driven to do what had been bidden irrespective of personal qualms? Would it be the sub-editor who wrote a headline that misrepresented what should be derived from correctly identified facts or modified the words of caution that the journalist had carefully included? How could I decide between these cumulative or alternative possibilities? In the circumstances, I have only been able to take the story at face value along with the reaction of the subject of the story and my view of the law (for example in relation to privacy) and the Editors Code of Practice. The result of this analysis is that, in relation to most of the complaints made by those who have been subject to press intrusion I have not issued Rule 13 letters. This is because I do not intend either expressly or by implication to make explicit or significant criticism of the relevant journalists (rather than, generically, of the press). If I had done otherwise, hundreds of journalists (if not more), most of whom have neither been asked nor volunteered to give evidence to the Inquiry or even to make a statement, would have had to receive a warning. Having said that, if, in any particular case or in relation to any particular example that I wish to highlight, I have been in doubt, I have issued a warning and provided an opportunity for representations to be made. In reaching my conclusions, I have taken full account of the representations that I have received in response to all these warnings including those issued generically to the press. In relation to Module Two and the police, different considerations apply on the basis that there being no ongoing criminal investigation into the conduct of the MPS (although there are
1.5
1.6
1.7
1.8
40
inquiries into other aspects of police conduct in relation to the press).3 On the other hand, I received detailed submissions from Counsel for the MPS both generally and specifically as to the interaction of Parts 1 and 2 of the Inquiry. In the circumstances, I separately ruled in relation to the application of Rule 13 both to the MPS and to individual police officers.4 Again, I have followed it and issued Rule 13 letters both general and specific in nature, taking full account of the representations that I have received. 1.9 Module Three raised different issues for a number of reasons. First, there is no criminal investigation that could affect my approach and, in addition, it does not appear that there will be any other consideration of the general issues which I have to address in the Terms of Reference; that might be thought to be a basis for encouraging me to range further and wider than in relation to the other modules. On the other hand, the Terms of Reference are specific to the culture, practices and ethics of the press including contacts and the relationships between national newspapers and politicians, and the conduct of each. It is argued that the Inquiry should investigate the nature of friendships between individual members of the press and individual politicians but, save to the extent that these bite or may bite upon the way in which a journalist (or politician) attend to his or her professional duties, it does not appear to me that it is necessary or appropriate for me to enquire. Throughout the hearing of Module Three, I emphasised that politicians were entitled to be friendly with whosoever they wished; absent some impact on the public interest, it is no part of the work of the Inquiry to challenge that right. Second, each of the major UK political parties has recognised, in general terms, that the relationship between politicians and the press has become too close: indeed, that was the conclusion expressed by the Prime Minister and his three predecessors when they gave evidence. For me to express that conclusion, however, undeniably constitutes an explicit or significant criticism in respect of which I must issue a Rule 13 letter. Such a criticism, however, is not intended to be personal but generic. It recognises that how close is too close is itself a very difficult and nuanced issue, given that it is critically important, in a democratic society, that politicians engage with the press and seek to explain their policies to the public through the press. The third concern has been the extent to which the work of the Inquiry has involved contemporary political issues with the risk of entering into a party political debate which is no part of its function: this particularly relates to the attempted acquisition News Corp of the publicly owned shares in BSkyB Ltd. I made it clear that I would not opine on the Ministerial Code or seek to prevent Parliament from investigating whatever aspect of the bid it wished to investigate;5 however, I recognise that it constitutes the most recent and most well documented inter-reaction between a very powerful media organisation and politicians (although the interaction in relation to the legislative proposals now contained in s77-78 of the Criminal Justice and Immigration Act 2008 which has not yet been implemented are also important). I have, therefore, attempted to analyse these issues from a general, cultural perspective: the process has inevitably involved a consideration of individual decisions and, on the basis that, even if not explicit, implied significant criticism may be inferred, I have issued appropriate warnings accordingly.
1.10
1.11
In particular, in relation to the knowledge and understanding (a) in 2002 of Surrey Police as to the interception of the mobile phone of Milly Dowler and (b) in 2008 of Cleveland Police in relation to e mail hacking of John Darwin who had faked his own death in a canoe 4 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Application-of-Rule-13-of-the-Inquiry-Rules-inrelation-to-the-MPS-4-May-2012.pdf 5 pp1-14, lines 4-17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-AfternoonHearing-15-May-2012.pdf
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1.12
I can deal with Module Four quite shortly. In this Report, each of the ideas put before the Inquiry has been subject to rigorous analysis and none more so than the proposals advanced by Lord Black of Brentwood (on behalf of the Press Board of Finance) and advocated by, among others, Lord Hunt of Wirral, the Chairman of the Press Complaints Commission. It is right that they should be, not least because, from the outset of the Inquiry and throughout, I encouraged the press to put forward their own ideas for press regulation, bearing in mind not only the values which it held to be important but also the interests of the public as demonstrated not only by the demand for this Inquiry but also by the evidence which has been given to it. I appreciate that Lord Black has had to deal with a wide spread of press interest; I have no doubt that different constituents have put forward different priorities and different ideas and that, furthermore, Lord Black has done his best to bring everyone to a common consensus which I expect is also consistent with his own ideas. Any concern or criticism that I have of the final formulation, however, is not a criticism of him or, indeed, any other person whether individual or corporate: neither should it be seen as such. In those circumstances, I have not felt it appropriate or necessary to give advance warning of my concerns but have simply set them out in the body of the Report.
1.13
2. Rule 13 of the Inquiry Rules 2006: the practice

2.1 The reason for the existence of Rule 13 of the Inquiry Rules is clear from this analysis. Flowing from that, however, are two further consequences. The first is the fact that a notice is only necessary to address potential criticism: it is not intended to present a balanced picture of any sort. Nobody needs to be warned of the risk that their conduct might be applauded. The point was clear from the body of the letter which explained: By definition, this letter is focussed on the aspects of the culture, practices and ethics of the press which may attract criticism and it is not the function of this letter to refer to the evidence of good culture, practice and ethics which the Inquiry has received. 2.2 The second consequence flows from the first. A possible criticism should not be interpreted as one that will inevitably be made. As a result, the letter also made it clear that both it and any response were subject to a legal duty of confidence owed in the public interest under Rule 14(1)(b) of the Inquiry Rules 2006.6 This requirement (expressly mandated in the Rules) is specifically designed to discourage public discussion or debate about criticisms which have not yet been made and which could well, in the end, be less serious. It was and is, therefore, a demonstrable attempt to be fair and to provide an opportunity to those who might be affected to make submissions about possible criticism at a time when, as I made clear, I was continuing to reflect on the narrative and conclusions which I would reach and before I had done so. Thus, although it has been portrayed as such, the letter is not intended to be a secret: it is only confidential until the Report is signed or published,7 after which time anyone is free to discuss the letters, criticise their content and analyse the extent to which my views might have changed. My concluded view, as expressed in the Report, will then be available.
2.3
This obligation of confidence is owed by the Inquiry team to any recipient of the letter and by that recipient to me, as Chairman of the Inquiry: see para. 14(1) of the Inquiry Rules 2006 7 The obligation ceases, as far as I am concerned, when I sign the Report and, so far as everyone else is concerned, when the Report is published: see para. 14(3) and (4) of the Inquiry Rules 2006
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2.4
It is therefore not in the least surprising that the letters are one-sided, that the positive should not be subject to a similar letter, or that I would be concerned if the contents were being openly discussed in the press.8 All are, of course, entitled to express whatever view they wish about the summary of press practice that can be culled from the evidence but it is worth repeating (not for the first, or the last, time) that the criticisms that I have suggested were not directed at the entirety of the press: most journalists, most if not all the time, do not behave in the way that, on my assessment of the evidence, a small but not insignificant number have behaved, thereby generating criticism of the culture that permitted this to happen, the practices involved and the ethics of those who have behaved in that way. As in every other walk of life, regulation is required for the small minority. A number of recipients of Rule 13 letters have questioned the fairness of the process on various grounds, and I should record that I have considered these objections and submissions with great care, always in the context of my ultimate obligation under section 17 of the Inquiries Act to act fairly. I am completely satisfied that all recipients who have chosen to submit substantive responses have understood the issues in respect of which I have sought further assistance, and have addressed them in appropriate detail. In the few instances where it appeared that recipients might have misunderstood the point that I wished them to have the opportunity to address, I have provided further explanation and given them that opportunity. In the result, many of my provisional conclusions have been revised or reformulated to reflect the Rule 13 process and the representations that I have received.
2.5
3. The nature and standard of proof

3.1 The starting point for any consideration of the nature of what must be proved and the standard of proof is, from the outset, to recognise that the Inquiry has been set up specifically because particular events have caused ... public concern.9 To some extent, it is sufficient simply to refer back to the Terms of Reference of Part 1 of the Inquiry but, summarising at least the most important of these events, it would be appropriate to include as topics about which I have been required to inquire: (a) (b) the disclosure of the interception of Milly Dowlers mobile phone messages and the deletion of such messages; the fact that it was common ground that the News of the World had engaged in interception of mobile phone messages (revealed in civil litigation and otherwise) contrary to the continued assertion that Clive Goodman was one rogue reporter; other complaints of illegal or unethical methods by which journalists obtained stories (not the least significant being activity in breach of Data Protection legislation leading to a concern about the policy, operation and effectiveness of the regulatory regime for data protection); the harassment and pressure placed both on members of the public caught up in stories attracting enormous press coverage and those in the public eye whether because of
(c)
(d)
Writing in the Observer on 2 September 2012 (http://www.guardian.co.uk/media/2012/sep/02/simon-fox-trinitymusic-man-record?INTCMP=SRCH) , Peter Preston said that I was spraying a confidential 118-page letter of early criticisms around Fleet Street which had been described as a diatribe, a completely one-sided attack that resembles loading a gun and excoriating. He suggested that my disappointment that my comments were being openly discussed in the press was an indication that he still doesnt quite get it so that he suffers just disappointment if it doesnt leak instantly. It might also simply demonstrate that not enough care has been taken to understand the process and to comply with sensible obligations specifically designed to be fair to all 9 s1(1) of the Inquiries Act 2005
43
their celebrity or otherwise; (e) the failure of the Press Complaints Commission to address the activities of the News of the World (save only to exonerate them and criticise The Guardian for its reporting); to provide adequate regulatory oversight in relation to the press; to provide adequate redress for those complaining of press misconduct save in limited circumstances; and to ensure that its remit embraced the press as a whole; the nature of the relationship between the press and the police and, in particular, the extent to which failure of the police properly to investigate the extent of interception of mobile phone messages was a consequence of that relationship; the way in which politicians engaged with the press and, in particular, the extent to which the commercial interests of the press influenced the development or implementation of policy, along with the failure to address prior concerns over many years relating to media misconduct; and the impact of the plurality of the media and cross media ownership on the public interest.
(f)
(g)
(h) 3.2
More important than the topics about which I am required to inquire are the subjects about which I am required to make recommendations. It is sufficient to repeat the Terms of Reference which are expressed in this way: To make recommendations: (a) for a new more effective policy and regulatory regime which supports the integrity and freedom of the press, the plurality of the media, and its independence, including from Government, while encouraging the highest ethical and professional standards; (b) for how future concerns about press behaviour, media policy, regulation and cross-media ownership should be dealt with by all the relevant authorities, including Parliament, Government, the prosecuting authorities and the police; (c) the future conduct of relations between politicians and the press; and (d) the future conduct of relations between the police and the press.
3.3
These issues are to be contrasted with those set out in Part 2 of the Terms of Reference, which are specifically directed to a far more fact focussed investigation of the conduct of News International and other newspaper organisations (the extent of unlawful or improper conduct, the extent of corporate governance and management failures), along with the police (the extent to which the police received corrupt payments or other inducements, or were otherwise complicit in such misconduct or in suppressing its proper investigation) and politicians (the role, if any, of politicians, public servants and others in relation to any failure to investigate wrongdoing at News International). In Part 2, there is a requirement to consider the implications of what is then found to have happened. In other words, Part 1 of this Inquiry is a qualitative exercise of sufficient breadth to determine the appropriate recommendations to make for the future. Part 2 is a quantitative exercise: how extensive have been the identified failures in News International, other press organisations, the police, the political class, public servants or others? On that basis, the implications (and any additional recommendations fall to be addressed. Part 2 requires a far greater and more detailed factual investigation than has Part 1: this is not surprising given that the Terms of Reference were split into two because of the ongoing police investigation and the lack of clarity as to where it might lead).
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3.4
Against that background it is necessary to consider the overriding obligation as to the procedure or conduct of the Inquiry, which requires me to act with fairness and with regard to the need to avoid any unnecessary cost.10 Further, although the Inquiry may not rule on and has no power to determine, any persons civil or criminal liability, it is not inhibited in the discharge of its function by any likelihood of liability being inferred from the facts that it determines or recommendations that it makes.11 Subject to this framework, the obligation is set out in s24(1) of the Inquiries Act 2005 in these terms: The Chairman of an inquiry must deliver a report to the Minister setting out (a) the facts determined by the inquiry panel; (b) the recommendations of the panel ... The report may also contain anything else that the panel considers to be relevant to the terms of reference (including any recommendations the panel sees fit to make despite not being required to do so by the terms of reference).
3.5
The facts as determined, however, are those which are necessary in order to provide the context for the recommendations. Focussing on the relationship between the press and the public, therefore, the submission that a single or occasional instance of misconduct will not itself justify any adverse finding about the culture, practices or ethics of the press is to proceed on the mistaken basis of thinking quantitatively rather than qualitatively. In relation to the future of regulation, the question whether a new regime is appropriate must be asked by reference to how the present regulatory regime has dealt with such issues as have arisen and whether it retains public confidence. If problems with or concerns about the culture, practices and ethics of the press are represented by a single or occasional example it may not be appropriate or necessary to recommend any change. Nobody, however, has submitted that this is the case. It is not challenged that there is legitimate public concern about the regulatory regime which it is no longer suggested is fit for purpose; the issue is the extent of that problem and the benefits and detriments of possible solutions. Neither does it matter that any problem is limited to one or a small number of titles. A regulatory regime must deal with all titles and be in a position appropriately to deal with even a single recalcitrant paper; it is irrelevant if one or more title never attracts its adverse attention. To that extent, the approach of at least one newspaper group to the Inquiry, restricting itself to demonstrating how illegal or unethical activity cannot be placed at its door, has wholly missed the point. I have no intention of either applauding one paper for its culture, practices and ethics or (with the exception of the NoTW) of condemning another. The reason for the exception is so that the public do not ascribe to other titles the many criticisms that have been articulated about that one. What I sought from all Core Participants (but have not always received) was an analysis of the extent to which, as a matter of generality, there was a problem with the culture, practices and ethics of the press or a section of the press, so that it would be possible to consider a new and sufficiently robust policy and regulatory regime which supports the integrity and freedom of the press but also reflects the legitimate rights of others. In argument, it has been submitted that it is appropriate for the Inquiry to express its findings at a high level of generality. The point is made in this way. It does not matter whether, for example, phone hacking occurred only at one title or was more widespread since it is an established problem of conduct by at least part of the press which will inform the recommendations made. Similarly, the problem of intrusion on grief identified by certain
3.6
3.7
10 11
s17(3) of the Inquiries Act 2005 s2(1) and (2) of the Inquiries Act 2005
45
witnesses is a problem of conduct by at least part of the press and it matters not for the purpose of making recommendations whether it occurred only at one title, at several titles, or at all titles. From this perspective the Inquiry can find that there are concerns about alleged press misconduct without determining whether the particular type of misconduct occurred on one occasion or one hundred, at one title or many. This puts the qualitative versus the quantitative argument at its highest. 3.8 To a point, the argument is well made and correct. I have already concluded, however, that a single or occasional instance of misconduct may not be sufficient to justify an adverse finding about culture, practices and ethics on the basis that it is of no real significance. Neither am I prepared to proceed on the basis that the argument of one rogue reporter can be replaced, by the remainder of the press, with an argument of one rogue newspaper title: if that is what I consider the position to be, I shall so conclude. That does not require me to decide how extensive was the practice or knowledge of phone hacking (although keeping quiet about a known abuse of the law by another title itself says something about culture, practices and ethics, on the basis that who otherwise will hold the press to account) but, in any event, illegality and unethical behaviour comes in many different forms and it is the overall picture that is critical. That is not to say that I will not deal with individual cases because worked examples can exemplify the problems that exist even in titles that are not the subject of repeated complaint and these may add to the overall picture. As a consequence, it is important to underline that it is not an inevitable inference that the culture, practices and ethics of the title affected is driven by the problem that I am exemplifying. Each generality along with each example is intended to provide or add to the narrative of facts against which to judge the regulatory regime and consider what should now take its place. Against that background, a consideration of the standard of proof becomes much more straightforward. I accept that the public interest requires that the findings of the Inquiry are expressed in such a way that can readily be understood to be a judgment on what has occurred and why any recommendations have been made and, furthermore, that the appropriate standard is that applicable in all but criminal cases, namely the balance of probability. To put it more colloquially, before reaching a conclusion, for example, that an event has happened, I must conclude that its occurrence is more likely than not. I further recognise both from an analysis of Re H (Minors) (Sexual Abuse: Standard of Proof)12 and the subsequent decisions of R(N) v Mental Health Review Tribunal (Northern Region)13 and Re D14 that the application of the balance of probabilities is flexible in its application in that the more serious the allegation, the more careful the analysis of the facts will have to be not least because of the reduced likelihood of it being true.15 In my ruling in relation to the application of Rule 13 of the Inquiry Rules 2006, I raised the question whether it was sufficient that I consider whether the evidence reveals such a concern about particular conduct that regulatory arrangements should be put in place to deal with that type of behaviour should it arise.16 I there had regard to the Baha Mousa Inquiry conducted by The Rt Hon Sir William Gage who, referring to s24(1) of the Inquiries Act
3.9
3.10
3.11
Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586 per Lord Nicholls [2006] QB 468 14 [2008] 1 WLR 1499 15 See Re D, per Lord Carswell at para. 28. The relevance of the concept of inherent improbability to a determination of whether an event took place (as opposed to who was responsible) has recently been re-affirmed in Re S-B (Children) (Care Proceedings: Standard of Proof) [2010] 1 AC 678 per Baroness Hale of Richmond at para 11-12 16 p20, para 52, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Application-of-Rule-13-of-theInquiry-Rules-2006.pdf at para 52
13
12
46
2005 (to the effect that the report could contain anything else the panel considers relevant to the terms of reference), concluded that it was open to him to express suspicion that an allegation is true. He recognised that such a comment would not be a finding of fact and that the power so to conclude should be exercised sparingly.17 3.12 I accept that unresolved suspicions, on their own, do not provide a sufficient basis for conclusions, in particular as to the success or otherwise of the present regulatory regime but the words on their own are important. By way of example, I can conclude without difficulty that mobile phone interception was far more extensive at the NoTW than was initially admitted and I can also be satisfied that knowledge of the technique was far more widespread than the confines of the NoTW but, until the Guardian article in 2009, it was not addressed by the press or the PCC. That alone is likely to be sufficient to justify a new approach to regulation but it seems to me that I can (and should) be able to go much further. A considerable body of evidence has been adduced which gives rise to reasonable grounds for believing that knowledge of the practice was linked to its use, albeit there is not the hard evidence (such as comes from the Mulcaire material) of names, telephone numbers and the like. It seems to me that it could be possible to conclude, inferentially, on the balance of probability, that others were involved in the practice; it might be fairer, however, (and sufficient to add to the weight of any conclusion about the need for a new approach to regulation) simply to conclude that there are strong reasonable grounds for believing that it did. I recognise, however, the need for real caution before proceeding along these lines. Mr Jonathan Caplan QC for Associated Newspapers Ltd argues that any general statement that there are grounds to suspect senior executives within a section of the national press of knowledge, concealment or acquiescence in voicemail interception raised very serious reputational issues for those senior personnel reasonably considered by the public to be within that section of the press (that is to say the tabloid or popular press). It is argued that such conclusions should not be reached unless the evidence discloses objectively reasonable grounds to suspect those executives which it cannot because there has been no proper investigation of the issue. I have not singled out senior executives for special mention but it is important to make the point that this should not and does not mean that, in appropriate cases, individual titles (and individual executives or journalists) will not be identified or identifiable. The effect of the argument that to do so offends my general approach is that I would not be able to reach any conclusion because to criticise any individual title or group is to criticise the editor. This is no more than a repetition of the argument that I rejected in the ruling on Rule 13 concerning the implied criticism of those involved18 which was not thereafter challenged. I am certainly prepared to accept, however, that I should not criticise any individual by name unless satisfied on the balance of probability that such criticism is justified. Similar, but not identical, reasoning applies to my approach to the relations between the press and the police (Module Two) and the press and politicians (Module Three) and I will express my conclusions about the nature and impact of those relationships on the balance of probability. In both of these cases, there is no complication of pending criminal investigation which could limit my ability to focus on individual conduct.
3.13
3.14
3.15
3.16
p8, para 24-25, http://www.bahamousainquiry.org/linkedfiles/baha_mousa/key_documents/rulings/ standardofproofruling7may2010.pdf 18 Paras 25 and 42 et seq, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Application-of-Rule-13-ofthe-Inquiry-Rules-2006.pdf
17
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3.17
In connection both with the police and with politicians, the material before the Inquiry is sufficient to reach conclusions on the important questions without having to consider issues of reasonable suspicion but the complication in these relationships arises in connection with the additional question of perception. Thus, by way of example, it has been suggested that deals were struck between the press and politicians to the mutual advantage of both. That allegation has been strenuously denied both by the press and by politicians. Quite apart from that, however, there is the very different issue of whether, even assuming there was no such deal, the behaviour of both gave rise to legitimate perception in the public that the relationship was being conducted in a way that was not in the public interest. On that basis, it may be entirely wrong to suggest or conclude that there was impropriety of any sort but still correct to decide that the way in which the relationship is handled from the perspective both of the press and politicians requires adjustment so that each can perform their duty but in a way that does not give rise an adverse perception. A similar problem arises in connection with the relationships between the press and the police (in particular in relation to the refusal to re-open investigations into mobile phone interception).
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ChapTer 4 The reporT

1. Scope
1.1 The Inquiry is UK-wide in its scope. It was set up, and its Terms of Reference were finalised, with the support of the Devolved Governments of the UK in Scotland, Northern Ireland and Wales. In so far as my recommendations address matters within areas of devolved competence, it will of course be for the devolved administrations and legislatures to consider them in the usual way. I have not, however, sought to any extent at all in this Report to analyse the position separately from the perspective of the devolved jurisdictions, nor to acknowledge, where legal matters are considered, the points on which different law applies in different parts of the UK. My timetable did not allow for that; it would have been a very complex and timeconsuming exercise. I recognise in the result that my Report may be less helpful to those with decision-making responsibilities in Scotland, Northern Ireland and Wales, but I have sought to set out my analysis and conclusions in a sufficiently explicit and reasoned way to enable the experts within the devolved jurisdictions to see as readily as possible how they could be made to fit. I have not been made aware of any technical reason why my recommendations should not be able to be accommodated, with appropriate adjustment, in all parts of the UK, but I have not sought detailed advice on the matter. I intend no discourtesy at all by this approach and hope that those with the relevant decision-making responsibilities will understand the reasons.
2. Purpose
2.1 This Report fulfils three quite separate functions. First, it is an account of the Inquiry. The purpose of the Inquiry was to inquire into the culture practices and ethics of the press and to make recommendations. By conducting the Inquiry in public and in such a way that it can be followed by anyone with an interest to do so, the story has emerged but it is important that it is collected together in one place and I have attempted to do that as a balanced account of what has transpired. Further, that balance can be checked. Anyone is able to go onto the Inquiry website, watch the play-back of the evidence, read every statement of witnesses whether called or simply introduced into the record, examine every relevant document in the form made part of that record whether specifically referred to not and consider every submission from a Core Participant or Counsel to the Inquiry and so form his or her own conclusion about the balance of the Report. Collecting the material and presenting it in an ordered form has generated an additional issue. It will quickly be obvious that some stories appear in more than one place in the narrative and some not at all. That is not because different examples of types of conduct are not available from either the material called at the Inquiry or read into the record; neither is it because of my over-reliance on a particular witness and the story that he or she had to recount. It is important to appreciate, however, that in some instances, manifestations of different criticisms come together in the same story, aggravating the wrong committed. It is equally valuable, however, to understand the same story from the perspective of the victim, simply trying to deal with life events as they occur (with the press providing its own, sometimes monumental, challenges) or, in some cases, over a lengthy period of time, again
2.2
49
and again having to confront different attacks from the same or different quarters. To tell every story was simply impractical but to say (as is frequently asserted) that the Inquiry has been hijacked by celebrities is both wrong and unfair; the claim may be thought to be an attempt to divert attention away from the real harm caused to real people. 2.3 The second purpose of the Report is to set out my conclusions on the culture, practices and ethics of the press and the other areas of my Terms of Reference. It is also to identify and explain my recommendations as to the way forward: that, after all, is precisely what the Terms of Reference require me to do. Both conclusions and recommendations appear throughout the Report but are, I hope, reasoned and comprehensible. The third purpose of the Report is, in my view, the most important. It is to allow those who read it to reach their own conclusions about every aspect of the Terms of Reference. From the outset (and consistently the subject of commentary throughout the hearings and subsequently), it has been suggested that a judge is wholly unsuited to the task of seeking to discern, let alone determine, how a free press should operate and how it should exercise its rights of free speech. It has been said that I have had an agenda and that the failure to involve a journalist with tabloid or mid-market experience as an assessor demonstrates a failure to understand the popular culture of journalism and an attempt to impose a broadsheet agenda when the profitable newspapers are the former not the latter. It is argued that the Terms of Reference are either too broad or too narrow. It is open to all to reach their own conclusions. I have no doubt that all sections of the press will report and comment upon this Report, each newspaper or title from its own perspective. It will be for anyone who reads the Report to decide the extent to which any comment upon it is fair in the same way that it will be for the Government (maintaining, I hope, the cross party consensus with which this Inquiry was set up) to decide how far it wishes to take the recommendations that I have made. That is where the ultimate decision making properly lies.
2.4
2.5
3. Timing and content

3.1 It is also necessary to say something about the timetable. Although the Prime Minister initially hoped that the Report would be available within 12 months, two developments affected the prospect of such a time frame being met. The first was the extension, beyond that initially envisaged, of the Terms of Reference. More significant, however, was the appreciation that there was no body of evidence immediately available to provide the basis from which to commence the calling of witnesses; the police investigation was ongoing and therefore it was not appropriate to seek to use the evidence that had been collected during that inquiry. Thus, it was only possible to start the collection of evidence in August 2011 and, given the holiday period, it was inevitable that it would take some time to be prepared; only after it had been prepared and served could it be assimilated and the hearings commenced. In the event, the oral hearings commenced on 14 November 2011 and, had it been essential to deliver a Report by the end of July 2012, they would have had to have been concluded by April. Given the remit involving the press, the public, the police and politicians, this was simply not feasible. I therefore set different targets namely that the evidence should conclude within about 12 months of the appointment of the Inquiry and the Report should be available within about 12 months of the commencement of the evidence. I did so because I recognised the fundamental importance of early delivery of a Report so that decisions could be made and implemented as to the future within a reasonable timetable, rather than being pushed back thereby falling in the run up to a general election.
3.2
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Chapter 4 | The Report
3.3
Meeting the timetable has not been without consequences. In relation to the evidence, careful selection was made of those witnesses who would be called to give evidence on oath and representations were invited from Core Participants in relation to other potential witnesses whose statements, in the absence of objection, could be read into the record without their personal attendance. Understanding the approach of the Inquiry to the evidence generally, sensible decisions were made by the Core Participants whose assistance, throughout, has been of very great value. The consequence, as I have explained, is that a vast body of evidence was not in fact the subject of oral exposition and the timetable for the hearings was met. There are, however, no different classes of evidence: although some of the material provided in writing is not referred to, it has all been considered. As for the Report, the consequences are different. In an ideal world, I would have wished to write, re-write and hone this Report so that every nuance could be the subject of mature reflection. As previous inquiries have shown, given the amount of evidence whether oral, documentary or read-in, that would have been a task of very many months duration. This Report, therefore, is the work of many hands,1 all working to my direction and reflecting my views; that is the inevitable consequence of the way in which the work has had to be done. I place on record my appreciation to all those who have collated the evidence in relation to different aspects of the Report. Having said that, I repeat that every finding of fact, every conclusion and every recommendation expressed in this Report is mine alone. Equally, any errors are my responsibility.
3.4
That is to say, I have been assisted in the drafting by Counsel and by civil servant members of the Inquiry team; the Assessors have been invited to provide comments on drafts only where appropriate.
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parT B THE prESS aND THE pUBLIC INTErEST
53
CHapTEr 1 INTroDUCTIoN
1.1 This Part of the Report alludes to some of the fundamental principles which must provide the context for any consideration of the role of the press in the United Kingdom. It does so principally for the purpose of brief overview and explanation, and to set the scene for the narrative, analysis and recommendations which follow. The principles which are set out are not simply derived from philosophical or jurisprudential writings. Proprietors, editors and journalists wrote and spoke about the importance of what they do for all of us in the UK, and the value it has for our common life. Politicians described the principles informing their own relationship with the media, including as policy-makers. Commentators suggested the matters that the Inquiry should bear particularly in mind in approaching its task. This brief overview seeks to distil, without necessarily fully rehearsing, the essence of the points of principle which were put before the Inquiry. Without seeking, or needing, to do full justice to the fine nuances of opinion which it is possible to hold and debate about such matters, this Part of the Report aims simply to set out a framework of understanding which is relatively uncontroversial. It is therefore the intention simply to underline, to put beyond doubt, the extent to which the Inquiry has itself proceeded on the basis of the perspectives set out, and to do so in terms with which I believe that most of the public would be able broadly to agree. It is also the intention of this Part of the Report to clarify some of the strands of thought which have been woven through a great deal of the evidence the Inquiry has received. Concepts such as the freedom of the press, freedom of expression and the public interest have been much referred to in the course of the evidence. These are potent expressions, and powerful and important concepts; commensurate clarity and care is needed in their deployment in the context of a Report on the culture, practices and ethics of the press. They are concepts which are capable of being, and have been, used both rhetorically and analytically to explain and support a range of different perspectives, arguments and conclusions. Attempting an all-embracing definition of concepts of this sort, even within the limitations of the Inquirys Terms of Reference, is neither necessary nor appropriate. Some measure of clarification is nevertheless attempted, both to underline the importance of these concepts and also to indicate the traps they can sometimes set for the unwary. This is not intended to make any claims to an especial authority in doing so, but only to give some indication of why they are important, and the limits of the uses and justifications to which they can be put. These are precious and fundamental principles, to which great respect must be paid; at the same time, they must be handled thoughtfully and with care. The Inquiry was considerably assisted in this respect not only by the way that the issue has been put by so many journalists but, in particular by the expert witness evidence it received, in both written and oral form.1 I recognise that I have freely borrowed from their observations in some of what follows and I am grateful to them. In doing so and while acknowledging this debt, I should make clear, that the analysis set out here is entirely that of the Inquiry and is not to be taken to be representative of the entirety of the views of the expert witnesses, collectively or individually. As with other aspects of the evidence that I have sought to summarise, I can only commend those interested to the original evidence: any summary cannot attempt to do full justice to it.
1.2
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1.6
http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-Morning-Hearing-16-July-2012.pdf
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CHapTEr 2 THE frEEDom of THE prESS aND DEmoCraCy

1. Context
A free press is the unsleeping guardian of every other right that free men prize; it is the most dangerous foe of tyranny Under dictatorship the press is bound to languish But where free institutions are indigenous to the soil and men have the habit of liberty, the press will continue to be the Fourth Estate, the vigilant guardian of the rights of the ordinary citizen.1 Winston Churchill The proper functioning of a modern participatory democracy requires that the media be free, active, professional and inquiring. For this reason the courts here and elsewhere, have recognised the cardinal importance of press freedom and the need for any restriction on that freedom to be proportionate and no more than necessary to promote the legitimate object of the restriction.2 Lord Bingham 1.1 The importance of a free press to democracy is surely incontrovertible, and, as Lord Binghams statement makes clear, enshrined in law and constitution in the UK. Why it is so may be thought obvious, but bears some consideration. The quality of that freedom also requires consideration; again, as Lord Bingham indicates, freedom has many components and is rarely in a democracy absolute or paramount, if only because democracy may itself be thought of as a system for reconciling competing freedoms. Equally, a press that is free and nothing else will not necessarily enhance democracy. Other conditions are necessary too; Lord Binghams formulation that the press must also be active, professional and inquiring, and Churchills vision of the press as vigilant guardians of the rights of the ordinary citizen raise interesting questions about how freedoms can be used. My attention has been drawn by press Core Participants to statements of the highest judicial authority which develop these points in a variety of ways. In R v Secretary of State for the Home Department, ex parte Simms (2000) 2 A.C. 115, a case which held that any restriction on the interviewing of prisoners by journalists must be strictly justified, Lord Steyn explained at paragraph 126: Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), the best of truth is the power of thought to get itself accepted in the competition of the market: Abrams v US (1919) 250 U.S. 616, 630, per Holmes J (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept
1 2
1.2 1.3
Speech, 1949 R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55
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Chapter 2 | The Freedom of the Press and Democracy
decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country: see Stone, Seidman, Sunstein and Tushnet, Constitutional Law, 3rd ed. (1996), pp. 1078-1086. It is this last interest which is engaged in the present case. The applicants argue that in their cases the criminal justice system has failed, and that they have been wrongly convicted. They seek with the assistance of journalists, who have the resources to do the necessary investigations, to make public the wrongs which they allegedly suffered. 1.4 The point was developed in the speech of Lord Nicholls of Birkenhead in Reynolds v Times Newspapers Ltd (2001) 1 A.C. 127, at paragraph 200: The high importance of freedom to impart and receive information and ideas has been stated so often and so eloquently that the point calls for no elaboration in this case. At a pragmatic level, freedom to disseminate and receive information on political matters is essential to the system of parliamentary democracy cherished in this country. This freedom enables those who elect representatives to Parliament to make an informed choice, regarding individuals as well as policies, and those elected to make informed decisions...Likewise, there is no need to elaborate on the importance of the role discharged by the media in the expression and communication of information and comment on political matters. Without freedom of expression by the media, freedom of expression would be a hollow concept. 1.5 The same point has been made with equal force in the European Court of Human Rights in Strasbourg. In Castells v Spain (1992) 14 EHHR 445 a senator of an opposition political party in Spain published an article in a weekly magazine critical of the government, and was charged and convicted of insulting the government and disqualified from holding political office. During the trial, Senor Castells attempted to adduce evidence as to the truth of the article, but it was declared inadmissible by the Spanish Supreme Court. The Strasbourg Court held that his conviction constituted an unjustified interference with his right to freedom of expression under Article 10 of the ECHR. At paragraph 43 the Court observed: ...the pre-eminent role of the press in a State governed by the rule of law must not be forgotten. Although it must not overstep various bounds set, inter alia, for the prevention of disorder and the protection of the reputation of others, it is nevertheless incumbent on it to impart information and ideas on political questions and on other matters of public interest... Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of a democratic society. 1.6 The fundamental importance of the freedom of the press was a very familiar theme of the evidence received by the Inquiry, and rightly so. It is one I emphasised myself on several occasions. The description of the importance of press freedom was put to the Inquiry largely in two forms: first, as a negative or default argument (any interference with any sort of freedom must always be justified in a liberal democracy) and, second, as a positive argument (the press must be free to fulfil its important role). To the extent that either or both of these
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PART B | The Press and the Public Interest
arguments was deployed in the service of contentions about the right approach for the Inquiry to take to its Terms of Reference, and explicitly to the question of how far it might end by asking new things of the press in respect of its culture, practices and ethics, it is necessary to stand back and reflect on the origins and explanations for the importance of press freedom.
2. a brief history of press freedom in the United Kingdom

2.1 The history of the press is filled with struggles against the state and debates over the rights and privileges of the press. It thus provides an essential background to understanding the commitment of modern democratic society to freedom of the press. It also explains the strength of feeling demonstrated by so many journalist witnesses. From the advent of the printing press in 1476 until the end of the seventeenth century, state licensing meant that the Government and the Church could control the press, and in particular prevent the printing of seditious or heretical works. State control over printing tightened when, in 1538, Henry VIII decreed that all new printed books had to be approved by the Privy Council and registered with the Stationers Company. This system of state control endured under a series of decrees issued and enforced by the Star Chamber. The licensing regime ended with the abolition of the Star Chamber in 1640. However, in 1643 licensing was reintroduced by Cromwells Parliament in an effort to suppress the publication of material about Charles I. This act moved John Milton to write his now immortal defence of the free press in The Areopagitica, a Speech for the Liberty of Unlicensed Printing: The attempt to keep out evil doctrine by licensing is like the exploit of that gallant man who thought to keep out the crows by shutting his park gate Lords and Commons of England, consider what nation it is whereof ye are: a nation not slow and dull, but of a quick, ingenious and piercing spirit. It must not be shackled or restricted. Give me the liberty to know and to utter and to argue freely according to conscience, above all liberties. 2.4 Miltons plea went unheeded and for the next half century the press was governed under a licensing system which suppressed all but official publications. Licensing eventually ended in 1695 when the House of Commons refused to renew the licensing legislation. Ever since the licensing of the press was abolished, there has existed a general right to publish newspapers, books or magazines without state authorisation. Although no longer required to obtain a licence for the mere act of publishing, there remained a number of restraints on the content of what the press could publish. The offences of criminal and seditious libel, for example, were still punishable at common law. In 1738, Parliament banned reporting in print of the proceedings of either house of Parliament. In 1712, the Stamp Act introduced taxes on the press. These taxes on knowledge, intended to curb the radical press, created a culture in which journalists and newspapers subsisted through bribes and government subsidies. It took a century of campaigning by proponents of the radical press and free speech to secure further independence for the newspapers. Parliament ended the ban on press reporting in Parliament in 1771, after a legal battle by the radical MP and journalist John Wilkes against attempts to arrest several printers for reporting parliamentary debates. The Libel Acts of
2.2
2.3
2.5
2.6
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1792 and 1843, restoring the right to trial by jury and introducing a truth defence to the charge of seditious libel, provided the press with a measure of security against unmeritorious criminal prosecutions. Newspaper stamp duty was eventually abolished in 1861. 2.7 The repeal of newspaper taxes resulted in a period of rapid press expansion. However, by the early part of the twentieth century, a new form of limitation on press independence had emerged. The proliferation of both regional and national newspapers was followed by a period of consolidation as increasingly powerful newspaper chains bought up provincial titles. For much of the inter-war period the proprietors of these large corporations the press barons of the day dominated the press. During the Second World War, Government censorship returned, this time in the guise of the now infamous Defence of the Realm Regulations. Regulation 2D conferred on the Home Secretary the personal power to ban any publication which published material calculated to foment opposition to the war. Relying on this power, the Government closed down two communist papers. Following mass rallies in response, the ban was lifted. In general, however, the press response to the unprecedented levels of Government censorship which characterised the war period was muted. Representative of the type of views being expressed on this issue, but not on others, George Orwell gave the following retrospective perspective:3 Any fair-minded person with journalistic experience will admit that during this war official censorship has not been particularly irksome. We have not been subjected to the kind of totalitarian co-ordination that it might have been reasonable to expect. The press has some justified grievances, but on the whole the Government has behaved well and has been surprisingly tolerant of minority opinions. The sinister fact about literary censorship in England is that it is largely voluntary. 2.10 During the immediate post-war period, the growth in the power of a limited number of press organisations increased. Growing concern over the dominance of a small group of proprietors led to the establishment of the first Royal Commission on the Press:4 with the object of furthering the free expression of opinion through the Press and the greatest practicable accuracy in the presentation of news, to inquire into the control, management and ownership of the newspaper and periodical Press and the news agencies, including the financial structure and the monopolistic tendencies in control, and to make recommendations thereon. In the final report, the Commission recognised the potential problem presented by the concentration of newspaper ownership. The solution proposed by the Commission was the creation of a General Council of the Press:5 to safeguard the freedom of the press; to encourage the growth of a sense of public responsibility and public service amongst all engaged in the profession of journalism []; and to further the efficiency of the profession and the well being of those who practise it.
2.8
2.9
The Freedom of the Press-proposed preface to Animal Farm, publication of which was delayed until the end of the war to avoid causing offence to the Soviet Union 4 Great Britain, Royal Commission of the Press, 1947-1949: Report, p3 5 para 664, Ibid
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2.11
Concerns about the continued diminution in press diversity led to the establishment in 1962 of the second Royal Commission on the Press:6 to examine the economic and financial factors affecting the production and sale of newspapers, magazines and other periodicals in the United Kingdom, including (a) manufacturing, printing, distribution and other costs, (b) efficiency of production, and (c) advertising and other revenue, including any revenue derived from interests in television; to consider whether these factors tend to diminish diversity of ownership and control or the number or variety of such publications, having regard to the importance, in the public interest, of the accurate presentation of news and the free expression of opinion. It found that the share of circulation controlled by the large proprietors had substantially increased; the leading three proprietors share of the national daily press amounted to almost 90%. It severely condemned the General Council and urged reform. The industry eventually responded in 1974, when the Press Council was created to replace the General Council.
2.12
Notwithstanding this reform, there remained major concerns about the need to protect editors and journalists from the control of proprietors. The third Royal Commission on the Press was established in 1974:7 To inquire into the factors affecting the maintenance of the independence, diversity and editorial standards of newspapers and periodicals and the public freedom of choice of newspapers and periodicals, nationally, regionally and locally. The report recommended the development of a written Code of Practice, warning it is unhappily certain that the Council has so far failed to persuade the knowledgeable public that it deals satisfactorily with complaints against newspapers. The Press Council rejected this proposal.
2.13
In 1989, the Government set up a Committee under Sir David Calcutt QC to investigate growing concerns over invasions of privacy by the press. The 1990 Calcutt Report recommended the establishment of a new Press Complaints Commission to replace the Press Council. The PCC was established in 1991 and tasked with administering a new Code of Practice. Since its inception, concerns have been voiced about the PCC. These developments (and, indeed, a fuller history of all these reviews) are described later in the report.8 Whilst attempts to achieve a functioning of system of self-regulation stalled, great strides were achieved in securing legal protection for a free press. Beginning in 1950, when freedom of expression was enshrined in Article 10 of the European Convention of Human Rights (the ECHR), legal protections for the press have steadily increased. Although Article 10 is a protection for individual rather than corporate freedom of expression, and does not expressly refer to the press, press reportage has consistently been recognised in case law as protected speech. In this regard, the European Court of Human Rights has emphasised the pre-eminent role of the press in a democracy and its duty to act as a public watch-dog.9 It has also recognised the importance of pluralism in the media, noting that there can be no democracy without pluralism. Democracy thrives on freedom of expression. 10
2.14
Great Britain, Royal Commission on the Press: 1961-1962: Report (Cmnd 1811) http://hansard.millbanksystems.com/commons/1974/may/02/royal-commission-on-the-press 8 in Part D Chapter 1 9 Observer and Guardian v UK (1992) 14 EHRR 153, para 59 10 Centro Europa 7 SRL and Di Stefano v Italy (1Application no. 38433/09)
7
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2.15
Consistently with other international instruments protecting freedom of expression, Article 10 expressly acknowledges that freedom of expression generally, including freedom of press expression, may be restricted where necessary to protect the legitimate aims of a democracy. The court has recognised that freedom of expression may need to be restricted in the interests of national security and public morality, as well as individual rights to privacy and peaceful enjoyment of property. The ECHR jurisprudence has nonetheless afforded a broad degree of protection of the press, drawing a distinction, however, between the protection afforded to reporting contributing to debate on economic, social and political issues and press reports involving tawdry allegations about an individuals private life.11 Since 2000, Article 10 has been incorporated into domestic law through the mechanisms set out in the Human Rights Act (HRA) 1998. In the years since incorporation, the domestic courts have joined Strasbourg in seeking to strike a balance between the protection afforded a free press, the restrictions necessarily placed on that freedom in a democratic society. This brief history makes a number of points about the values and functions of press freedom in democracy. First, the struggle to achieve press freedom (in the sense of freedom from the power of the State) was driven by the democratic value served by the press. Freedom of the press, according to this historical tradition, was and is celebrated not simply because of any intrinsic value of a free press, but because of the public benefits associated with free flow of information and debate. Second, it is clear from this history that threats to the democratic function of a free press can take many forms. Government licensing and censorship of content is the most easily identifiable restriction and was deployed with invidious effect in the seventeenth and eighteenth centuries. The democratic freedom to own and operate a printing press in the first place is precious and hard won. However, as the more recent history of the struggle for press freedom illustrates, there are other sources of power which may threaten press freedom, and indeed other freedoms which may have a legitimate claim to being taken into account. A free press contains within itself immense power to promote democratic freedoms and the public good. It also contains within itself the reverse potential, that is to say, to create undemocratic concentrations of power and undermine freedoms and the public good. The challenge of securing the democratic benefits of a free press, whilst obviating the harm presented by the unchecked exercise of concentrated or unaccountable power, is the legacy of the historic struggle to free the press. Professor Baroness Onora ONeill put the matter in this way:12 I think if we just say were in favour of press freedom, we beg all the important questions. The important question is: which conception of press freedom and how do you justify it?
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2.17
2.18
2.19
3. The importance of a free press: free communication

3.1 When confronting the challenge of securing a free press it is important to be clear about why we value a free press and what we seek to protect. Perhaps the most enduring and least contentious rationale for a free press is the argument that a free press contributes to the
Application 36919/02 Armonien v Lithuania (25 November 2008), para 39 p49, para 47-90, Professor Baroness Onora ONeill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Afternoon-Hearing-16-July-2012.pdf
12
11
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free flow of communications in a liberal democracy. This can be put in a very broad way, for example:13
the public interest in a free press is best construed as an interest in adequate (or better than adequate) standards of public communication, that allow readers, listeners and viewers to gain information and form judgements, and so as to participate in social, cultural and democratic life. A free press is a public good because it is needed for civic and common life. And:14 a liberal public sphere, one in which every member, everyone in the community, can take part is just a very good thing in itself. Its useful partly for the results it creates but its also a good in itself that we all have the status of being able to take part in the liberal public sphere and it seems the press plays a role in that. People who are insufficiently articulate or insufficiently confident to take part in the public speech, the press can give them a voice. 3.2 A number of serving editors have given the Inquiry the benefit of a perspective from the front line. Representative of such viewpoints was the reference by Alan Rusbridger to:15 the simple craft of reporting: recording things; asking questions; being an observer; giving context. Its sitting in a magistrates court reporting on the daily tide of crime cases the communitys witness to the process of justice. Its being on the front line in Libya, trying to sift conflicting propaganda from the reality. Its reporting the rival arguments over climate change and helping the public to evaluate where the truth lies. 3.3 It is important to note that this is not just a general argument for the benefits of free selfexpression. Freedom for commercial mass media businesses (corporate speech) is a very different proposition from the freedom of individual self-expression (personal speech). The latter is discussed further below, and has its roots in a very personal conception of what it is to be human. Take, for example, John Stuart Mills argument from On Liberty, that freedom of speech serves a central function in promoting individual autonomy and self-fulfilment. This argument has no direct relevance to press freedom because, put simply, press organisations are not human beings with a personal need to be able to self-express. In any event, an argument for free speech for the powerless will not make a case for free speech for a powerful organisation.16 The general argument for a free press as a means of free communication, on the contrary, has to do with a number of different things. These include the ability to give a powerful voice in the public domain to those unable to do so effectively for themselves (perhaps of diminishing importance in the era of social media and self-expression on the internet). Importantly, it is also to do with the constitution by the media in their own right of a public forum, where information, ideas and entertainment are both circulated and held up to scrutiny. The essence
3.4
13
p3 para d), Professor Baroness Onora ONeill, http://levesoninquiry.org.uk/wp-content/uploads/2012/07/witnessstatement-of-Professor-Baroness-ONeil 14 p69, Dr Rowan Cruft, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-MorningHearing-16-July-2012.pdf 15 Alan Rusbridger, The importance of a free press, seminar 6 October 2011, http://www.levesoninquiry.org.uk/wpcontent/uploads/2011/11/Alan-Rushbridger.pdf 16 p2, Professor Baroness Onora ONeill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/WitnessStatement-of-Professor-Baroness-ONeil.pdf
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of the importance of a free press is therefore not an interest in free self expression but in free communication, the free flow of knowledge, information and ideas:17 Readers, listeners and viewers dont need media that express themselves: they need media that meet at least minimal standards for adequate communication with intended audiences.18 The critical public interest in a free press is not so much in a press which exercises self-expression as in a press that is free from censorship, not subject to some kind of central control.19 Even if the press does have a very important right to freedom of expression, you have to remember that its justified by what it does for individuals by constituting a public sphere in which all individuals can take part. 3.5 A free press will not necessarily provide an effective market-place for ideas. The freedom of the press is a prerequisite for that, but not sufficient in itself, for all sorts of reasons. There must be some degree of effective connection between communicators in the press; and when some elements of the press are more powerful communicators than other papers and individuals, its capacity to facilitate informed debate may be impaired. In a similar vein, a measure of plurality of voices is required if a free press is to enhance democratic debate. The argument from truth, which identifies free speech as an important condition for the attainment of truth, is also not straightforward when applied to the press. Mills argument that society will benefit from the clearer perception and livelier impression of truth, produced by its collision with error may hold in relation to the battle between truth and falsity expressed by individuals (but even then, only in the sort of discourse which aims at the truth). However, it is less certain that truth will prevail in the encounter between individual and institutional speech, or between different forms of institutional speech. To put the matter bluntly, there is nothing to stop a free press from freely deciding to support corruption or to be involved in it. We cannot assume that a free press, or specific agents within a free press, will be motivated to provide the kind of content that is, in fact, in the public interest.20 The fundamental point is that unlike freedom of expression for individuals, which has intrinsic merit as a form of self-expression, press freedom has value to some extent as an aspect of commercial freedom, and to some extent because of the functions it serves. In other words, freedom of the press is largely understood as an instrumental good, to be valued, promoted and protected to the extent that it is with the result that it is thereby enabled to flourish commercially as a sector and to serve its important democratic functions.
3.6
3.7
4. The importance of a free press: public debate and holding power to account
4.1
17
There are two, more specific, strands to explanation for the importance of a free press in a democracy. They were explained to the Inquiry by different witnesses in these terms:
p66, lines 1-12, Dr Rowan Cruft, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-16-July-2012.pdf 18 p4, Professor Baroness Onora ONeill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/WitnessStatement-of-Professor-Baroness-ONeil.pdf 19 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-ChristopherMegone.pdf 20 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Neil-Manson.pdf
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a free press serves the public interest instrumentally in two key respects:
Constraining power: A free press is an important check on political and other forms of social power (corporate, individual). To achieve this end, the press requires not just freedom from interference with the form and content of what it says, but also the capacity to investigate and acquire information. Enabling democratic deliberation and decision-making; educating and enabling understanding. A free press especially a diverse press in which many views are represented is an important forum for public deliberation and education, a means for enabling the public to engage in informed democratic decision-making. 21 there are also some very well-known instrumental benefits of the press. So its a very important check on political power and other forms of power. Its an important source of education and an important means of enabling democratic decision-making. 22 The public interest in a free press lies largely in the character of our society as a liberal democracy. It is in the public interest that there be a free press because and insofar as such a press serves as a necessary bulwark against government duplicity or tyranny. A free press serves also to inform people about the principles under which they live and the policies which government adopts and pursues in their name. This is of particular importance in a democratic society where governments are elected by the people and act in the name of the people. The argument from democracy is, so to speak, a guiding light. Insofar as it reminds us of the most important purpose of a free press, it also, and at the same time, reminds us of the most significant duties of a free press duties to communicate those things which people need to know if they are to be effective and informed citizens 23 The serious purpose the press serves, the purpose which makes it critical to a genuinely free and democratic society has two principal components to inform citizens and to enable citizens to hold accountable those who should be serving the wider public. 24 A free press can communicate important facts that the public have a legitimate interest in knowing (and which others might want to conceal). one aspect of the public interest in a free press is that it provides an essential set of checks and balances on power (and, more importantly, the abuse of power). there is a public interest in learning of dangers and risks, even where others may wish to conceal them. A free press, free of the censorship and restrictions imposed by the powerful, serves the public interest by its investigative and communicative role. Both roles are necessary. 25 4.2 First, therefore, a free press serves democracy by enabling public deliberation. Citizens need information to make intelligent political choices. To this end, the press serves both as a conduit for the dissemination of information as well as a forum for public debate. It is therefore unsurprising that the proliferation of newspapers which followed the abolition of the stamp duty in the nineteenth century was accompanied by one of the most active periods of political reform in modern history.
21 22
pp1-2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Rowan-Cruft.pdf p69, Dr Rowan Cruft, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-MorningHearing-16-July-2012.pdf 23 pp4-5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-SusanMendus.pdf 24 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-ChristopherMegone.pdf 25 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Neil-Manson.pdf
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4.3
The second way in which a free press serves the interests of democracy is through its public watchdog role, acting as a check on political and other holders of power. The press is able to perform this function because of its hard-won position as a powerful institution independent of the state, a position which earned it the nickname or sobriquet of the Fourth Estate amongst nineteenth century writers. The British press has a strong tradition of holding power to account. A forerunner of investigative journalism, Charles Dickens, exposed some of the cruellest aspects of Victorian society in his excoriating accounts of the work houses. More recently, investigations conducted by his modern counterparts at The Daily Telegraph resulted in the exposure of widespread misuse of the parliamentary expenses scheme by Members of Parliament. Less headline grabbing, but of equal significance, is the role of investigative journalism in consumer affairs and at exposing abuses of power in publicly-run institutions such as hospitals, care homes and prisons. Again, it is not a given that a press which is simply free will perform this function. The press must be independent from those in power and must be afforded the privileges necessary to enable investigative journalism to take place. It must also be active, professional and inquiring.
4.4
4.5
5. press freedom within the rule of law and the role of statute
5.1 The unique power wielded by the press plays a vital function in democracy. However, this power must also be used consistently with other democratic values. A free press in a democracy must therefore operate within certain parameters. Chief amongst these is the requirement that press freedom promotes, and operates within, the rule of law which itself is often described as the cornerstone of a democratic society.26 Although the democratic function of the rule of law is primarily associated with the idea of government in accordance with the law, the doctrines deeper implications concern the need for accountability and constraint of all power in a modern democracy: Be you never so high, the law is above you 27 5.3 Lord Bingham encapsulated this essential function of the rule of law in his now celebrated monograph on the subject, in which he defined the rule of law as follows:28 [A]ll persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts. In other words, the rule of law is at the cornerstone of democracy because it protects the freedoms on which democracy depends, including press freedom, from arbitrary power. 5.4 In a modern democracy that abides by the rule of law, press freedom can never mean a press which sits outside, above and beyond, or in disregard of, the law. Respect for the law is the common framework within which the press, as an important commercial sector, is enabled
5.2
26
As a fundamental constitutional principle, the rule of law is now recognised in statute: see s 1 of the Constitutional Reform Act 2005 27 Dr Thomas Fuller, 1733 28 Bingham, T, The Rule of Law
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to flourish, to preserve and enjoy its freedoms, and to make its unique contribution to a democratic society.
5.5
That general principle relates to the law (both common law and statute) which applies to press organisations in the same way as it applies to other commercial organisations; these include the laws of taxation, for example, and, where relevant, the requirements of company or trust law. It also applies to the law which is of particular application to the activities of the press, specifically including information-gathering and publication. Appendix 4 to the Report sets out the principal sources of law applying in this more activity-specific way to press organisations. Some of this law is of particular, or modified, application to the press; whether or not that is the case, in many ways it does constrain the conduct (or freedom) of the press in order to hold it in balance with other important aspects of the public interest. How it does so is considered more fully below. The point of paramount importance for present purposes, however, is that there is a fundamental public interest in respect by the press for and obedience to the law. A press considering itself to be above the law would be a profoundly anti-democratic press, arrogating to itself powers and immunities from accountability which would be incompatible with a free society more generally. All who have the privileges and responsibilities of holding power to account, including police, politicians and press, must themselves champion and uphold the accountabilities they proclaim for others. The rule of law, in other words, guards the guardians and is a guarantor of the freedom of the press, not an exception to it. Reference has already been made to the separate public interest in a press which is diverse. Even if newspapers are, as editors have forcefully suggested, merely the passive conduits of their readers views, the argument for a multiplicity of such views is clear. To the extent that the press does more, and is capable of influencing public opinion, the argument becomes even stronger. These arguments are recognised in general terms by plurality and media specific competition laws, which apply both to the print and broadcast media. Of course, I fully appreciate that plurality and partisanship are separate concepts; that the print media is fully entitled to be partisan; and that the broadcast media is required to be impartial. The simple point I am making about the press is that an irreverent and opinionated print media should, taken as a whole, reflect a range of views if it is fully to realise its potential to contribute to the public interest. From this brief overview, it is possible to see that the organisation, activities and products of the press are in many ways limited by, or made accountable through, the operation of the law, that is to say, both common law and statute. In this, the press is no different from any other provider of, or participant in, democratic public life. As explained above, the rule of law is at the most fundamental level the guarantor of the freedom of the press, not an exception to it. And where it limits the activities or the press, or makes the press formally accountable for its actions, the law is simply performing its inherent democratic functions of balancing competing freedoms and competing public goods. So much is to state the obvious. That it needs to be stated at all, and more than stated, emphasised, is a result of two lines of argument put to the Inquiry, both of which are dealt with more fully below. The first of these is the proposition that the press is, or should be, entitled to break the law where to do so would be in the public interest. It is certainly true that there are a number of modifications in various aspects of the law applicable to the press which gives it greater latitude within the law than is afforded to others. But that, emphatically, does not mean recognition within the law that, as a matter of general principle, the press possesses any entitlement or expectation to be indulged, in the national interest, in special exemption from
5.6
5.7
5.8
5.9 5.10
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observing the requirements of the law. The Inquiry has been asked to consider the possibility of recommending that a general public interest defence be accorded to journalists in relation to what might be described as the whole of the criminal law insofar as it relates to the press. I give this proposal full and independent consideration.29 5.11 The other reason to clarify that a free press within a mature democracy operates within the rule of law is to address the line of argument, put to the Inquiry from time to time, that a statutory framework for, or underpinning of, press standards would by itself be repugnant to a proper view of the freedom of the press. This argument, in turn, appeared in two distinct forms. The first version of this argument posits that any change to the law by Act of Parliament to require or restrict any behaviour by the press, or to increase its accountabilities, regardless of the content or justification of any such change, is intolerable in a democracy as an act of state control. I understand this argument, but believe that it completely lacks merit. It seems to rely, at some level, on a mistaken conflation of state censorship with the ordinary democratic processes of making and applying statute law. As has been illustrated, there are many forms of statute law which already restrict the activities of the press, whether in terms of their organisation, competition or activities up to and including in limited cases what it may or may not be lawful to publish (race hate, for example). On the face of it, these statutory restrictions are legitimate and proportionate exercises in democratic lawmaking, balancing competing public freedoms and goods. Of course, as such, they need to be justified, and considered on their merits. Not every statutory restriction possible will be proportionate and justifiable. But to contend that no statutory reform could be so is to push the argument far beyond any reasonable statement of principle. Ultimately, there is no necessary connection between statutory underpinning of a regulatory system (to apply the argument more closely to home), on the one hand, and state censorship on the other, nor in my view is there some sort of slippery slope gliding from the first to the second. The second variant of the argument is more limited. It is put by witnesses, such as Lord Hunt, on the basis that any proposal for statutory reform of the law as it applies to the press contains within it a risk of exposure to a Parliamentary process in which a commitment to the importance of press freedom does not at present exist.30 There are two objections to this argument. The first is that I am aware of no empirical evidence to support it.31 On the contrary, in recent years there are, I think, examples only of Parliamentary law making in respect of the press which is clearly focused on strengthening, rather than restricting, the freedoms of the press.32 The second objection is an objection of principle and constitution. More than one view is no doubt possible of how the freedoms of the press should best be held in balance with other freedoms and public goods. Parliament is the proper and legitimate forum within which such views can and must be debated in a democracy. If the press fears for its liberties in a Parliamentary context, its answer is to ensure that the case is put with maximum clarity in that forum, not to seek to avoid the forum altogether.
5.12
5.13
5.14
5.15
29 30
Part J Chapter 2 pp63-64, Lord Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-AfternoonHearing-9-July-2012.pdf 31 The fact that occasional attempts have been made to introduce private Members Bills (none of which have progressed) is hardly sufficient 32 s12 of the HRA 1998; s32 of the Data Protection Act 1998
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6. The protection of sources and other legal privileges of the press

6.1 A free press is able to perform valuable functions which individual free speech cannot. It is because of the position of the press as an institution of power that it is able to stand up to and speak truth to power. The professional skills and resources at its disposal enable the press as an institution to carry out ground-breaking investigations in the public interest. It is these considerations and functions which have resulted in the press as an institution being afforded certain privileges going beyond those protected by freedom of speech. Principal amongst these is the press privilege not to disclose sources of information. Now enshrined in section 10 of the Contempt of Court Act 1981, the privilege means that a publisher cannot be compelled to reveal the source of published information unless a court considers such disclosure to be in the interests of justice or national security or for the prevention of crime. The Police and Criminal Evidence Act (PACE) 1984 confers a similar procedural privilege, preventing the police from access to journalistic material without authorisation obtained by application to the court. Furthermore, the courts have also recognised the right not to disclose sources as an important facet of the free press, as is reflected in the following words of Lord Woolf CJ:33 The fact that journalists sources can be reasonably confident that their identity will not be disclosed makes a significant contribution to the ability of the press to perform their role in society of making information available to the public. 6.3 Furthermore, whilst the press are not above the law, the criminal law does on occasion accord journalists a form of protected status34 as well as certain protections in relation to otherwise defamatory publications (e.g. qualified privilege and the Reynolds defence). These matters are all covered in some detail later in the report and stand to be enhanced in the Defamation Bill presently before Parliament. Suffice to say, these privileges afforded to the press are important precisely because they enable the press to serve the public interest in carrying out investigative journalism and disseminating information: they are not afforded for any other reason.
6.2
33 34
Ashworth Hospital Authority v MGN Ltd [2002] 4 All ER 193, 210. s55 of the Data Protection Act 1998
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CHapTEr 3 CompETINg pUBLIC INTErESTS

1. Context
1.1 The public interest in a free press is fundamental. But it cannot be viewed in isolation. As has been demonstrated, it is, itself, an aspect of wider public interests such as the public interest in democracy, for example, in public life and in the rule of law. There are other public interests also of which press freedom is not a major aspect, and with which it may sometimes be in tension. This section considers some of them, in order to put the public interest in a free press in its fuller context, and to reflect on how competing aspects of the public interest are resolved and reconciled. The public interest is therefore not a monolithic concept. Nor is it the particular property of the press or any other organisation or sector. It will often be a matter of balancing a number of outcomes which would be for the common good, but which cannot all be achieved simultaneously. In a democracy, this is principally a role for Government that is, for example, used to grappling with a balance between the public interests in public spending and in low taxes, in liberty and in security, in high accountability and low bureaucracy. That is by no means to portray any aspects of the public interest as mutually exclusive or zerosum. On the contrary, the fact that many aspects of public, and indeed private, life may benefit the public makes the task of the decision-maker a much more subtle and skilful one than that. There are critical decisions to be taken about how to balance, weigh and reconcile many things that are in themselves good but not all of which may be simultaneously achievable. So it is a complex task for those charged with it, and one for which accountabilities are rightly demanded. A wider perspective than that of the press is therefore inevitable:1 There are more components of the public interest than those that are served by a free press, so that the press may need to control its activity to respect those wider factors. Sometimes it seems that the presss confidence that its activities are serving the public interest makes it insensitive to the complexity of that notion. 1.4 Most proponents of free speech, for example, accept that its exercise must be restricted in order to protect the rights and interests of others. There is an important public interest in free speech, and there is also an important public interest in the civil liberties of individuals. These may sometimes need to be reconciled. Certain acts of speech, such as speech inciting violence or race hate, are so connected with producing specific conduct as to be relatively unprotected. Even Milton, in a passage from the Areopagitica overshadowed by his rhetoric in defence of a free press, acknowledged necessary limits to free speech (although not necessarily limits which we would now condone): I mean not tolerated popery, and open superstition, which as it extirpates all religious and civil supremacies, so itself should be extirpate that also which is impious or evil absolutely against faith or manners that no law can possibly permit that intends not to unlaw itself.
1.2
1.3
pp3-4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-ProfessorChristopher-Megone.pdf
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1.5
B
1.6
Some of those who place the strongest emphasis on press freedom take their lead from the principally American brand of free speech absolutism. Free speech absolutists take the injunction of the First Amendment to the United States Constitutions at face value: that Congress shall make no law abridging the freedom of speech. Within this tradition, the United States Supreme Court has developed some of the most extensive protections of free speech in the democratic world, including the protection of religious and racist hate speech as a species of political speech.2 However, even in a culture committed to maximum protection to free speech, the absolutist position has proved impossible to sustain. In practice, the United States Supreme Court imposes extensive restrictions on freedom of speech by identifying categories of speech which are deemed not to fall within the scope of the First Amendment. These categories include for example advocacy of imminent illegal conduct, official secrets, defamation and fraudulent misrepresentation. The Supreme Court has also denied that certain categories of sexually explicit material amount to protected speech and has been prepared to sanction far more extensive restrictions of obscene material than exist in the UK.3 Article 10(2) of the ECHR itself permits formalities, conditions or restrictions on freedom of expression so long as they are prescribed by law and necessary in a democratic society. Thus, to the extent that press freedom is protected as an aspect of the protection of freedom of expression under Article 10, certain restrictions will be necessary and justifiable in the overall public interest. The Inquiry invited thoughts on the place of press freedom within a wider concept of the public interest by asking the following question, both of some of the expert witnesses and more generally of the public at large via the Inquiry website:4 In order to maximise the overall public interest, with what other aspects of the public interest would freedom of expression, or freedom of the press, have to be balanced or limited? The Inquiry is particularly interested in the following, but there may be others: a. the interest of the public as a whole in good political governance, for example in areas such as: national security, public order and economic wellbeing, the rule of law, the proper independence and accountability of law enforcement agencies, and access to justice, and the democratic accountability of government for the formation and implementation of policy; b. the public interest in individual self-determination and the protection and enforcement of private interests, for example privacy, including (but not necessarily limited to) the rights to privacy specified in general in Article 8 of the European Convention on Human Rights and in European and national legislation on the protection of personal data, confidentiality, the protection of reputation, and intellectual and other property rights, and
1.7
1.8
2 3
Barendt, E, Freedom of Speech (2nd ed), pp183 -186 pp361-363, ibid 4 para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Key-Questions-Module-4.pdf
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Chapter 3 | Competing Public Interests
individual freedom of expression and rights to receive and impart information where those interests and rights are not identical to the interests and rights of the press. What follows picks up some of the strands of thought in the responses the Inquiry received to these questions, and which seemed to be particularly pertinent.
2. freedom of expression
2.1 As noted above, the rights of individuals to freedom of expression have different origins from the public interest in the free speech of the press. Thus, freedom of expression or speech has value for individuals because of its ability to contribute to individual self-expression and self-realisation.5 Freedom of individual expression is important for the development and maintenance of social identity, and for forming relationships and associations, for developing projects (that may be counter to prevailing opinion or orthodoxy). 2.2 There is a distinct public interest in individual freedom of self-expression. Liberal democracies are composed of individuals free to express and develop themselves. It was put to the Inquiry in this way:6 Freedom of thought and expression are also in the public interest because they constitute the public as a society of equals who respect one another: a society in which each member can participate and bring their own views to the public sphere. This is a good independent of the instrumental benefits it brings. 2.3 The public interest in individual freedom of expression is a distinct and different aspect of the public interest to press freedom. Here is one way in which the difference was explained:7 The press has, as it were, no self to fulfil, so an argument from self-fulfilment or self-development will not be directly relevant to questions of press freedom. More importantly, however, demands for press freedom are not (or not centrally) demands for free expression, but rather for the communication of information, and even if we think that individuals need to be able to express their views in order to develop fully as human beings, it does not follow that extensive freedom should be extended to those (eg the press) whose primary concern is with communication of information. To put the point starkly, those who aim to communicate must aspire to standards which are inapplicable for those who aim only to express their own views. 2.4 The democratic rationale for freedom of expression in relation to individuals is also different from the democratic interest in a free press. It encompasses the individuals right to receive information, impart his or her own views and participate in democracy on an informed basis. Democracy benefits from a free press where the press, taken as a whole (a sum of partisan parts), communicate a plurality of views and provide a platform for public debate.
5 6
p6, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Neil-Manson.pdf p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Rowan-Cruft.pdf 7 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-Susan-Mendus.pdf
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2.5
In this context, mass communication by the press has the capacity both to enhance and inhibit individual freedom of expression. It is therefore necessary to bear in mind the important point made to the Inquiry that some limitations to freedom of expression under the law are necessary in order to protect free speech from being inhibited by the free speech of others. This is a significant issue when there is an imbalance of power between the competing voices. A free debate cannot happen if some participants simply drown out others and prevent them from speaking. As the New Zealand Law Commission pointed out in its submission to the Inquiry:8 [C]ensorship is not the only enemy of free speech. Those who exercise their free speech to intimidate, bully, denigrate and harass others on the internet lessen the credibility of free speech arguments. Even though the web provides those who are harmed by free speech the opportunity to exercise their right of reply, not all have the courage or the standing to exercise it. In effect, those who exercise their free speech rights to cause harm may inhibit others from participating freely in this vital new public domain.
2.6
Such restrictions may be necessary to protect the freedom of expression of one individual or group of individuals from the speech of another individual or group of individuals. For example, speech which inhibits personal self-expression, be it artistic, religious or sexual, or which intimidates others into silence, inhibits freedom of expression of others. This is why society does not protect racial or religious hate speech in law.9 Nor is there protection in law for speech which is threatening, intimidating or harassing.10 When one individuals right to freedom of expression is inconsistent with the similar rights of another, a difficult balancing exercise must be carried out in law. It may also be necessary to balance the public interest in the free speech of the press against the public interest in the freedom of expression of individuals. Race hate would be no more protected in the pages of a newspaper than it would anywhere else. This is, of course, a straightforward example. Political philosophers and ethicists would say that more complex issues arise where individual freedom of expression is put under pressure by the free speech of others in ways which are not objectionable in law but which nonetheless might be objectionable on other grounds. There are, for example, those cases in which the free speech of one party is experienced in a very intimate way as a threat to the core self-expression and identity of another. That is the context, for instance, in which debates about the portrayal of women and some minorities in the press is conducted.11 There is a public interest in the free expression of views (and images) which some, perhaps many, find objectionable. There is also a public interest in the liberty of individuals to live free from publicly promulgated stereotyping which limits their own expression and development of themselves. This is not in any sense a point about censorship or law. It is a very simple and self-contained point about competing public interests in free expression.
2.7
2.8
p151, para 7.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-from-the-New-ZealandLaw-Commission-Full-Report.pdf 9 See, for example, the Racial and Religious Hatred Act 2006; European Union Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law. 10 Part 1, Public Order Act 1986; Protection from Harassment Act 1997 11 Part F, Chapter 6
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3. Personal autonomy and civil liberties

3.1 To this extent, the public interest in individual freedom of expression is an aspect of a broader public interest in the autonomy, integrity and dignity of individuals. More generally, personal autonomy and human dignity require that individuals enjoy a protected personal sphere over which they exercise a measure of autonomous control. This is a dimension to the public interest which has a very ancient history in the UK and a special place in public imagination. It underlies the iconic status of habeas corpus as an early guarantee of personal liberty, and it underlies the special importance of freedom from interference in home life: an Englishmans home is his castle. Personal autonomy means that individuals must have a sphere in which they can exercise individual choices without interference from others (including the state). This important personal sphere has been described in Western liberal philosophy in terms of the public interest in personal privacy. As David Feldman has stated:12 The combination of the idea of a right to be respected as a moral agent with the idea of social spheres of decision-making within which people or groups are entitled to regard themselves as free from outside coercion are, I suggest, of the essence off the notion of privacy as a civil liberty. 3.3 It is evident and well evidenced that the public interest in free speech and free selfexpression does, on occasion, come into tension with the public interest in individual privacy and autonomy. Both are protected in law. Article 10 of the ECHR (freedom of expression) is held in a dynamic balance with Article 8 (home and private life). This dynamic balance has been developed in the English law of the protection of privacy. Lord Hoffmann observed in Campbell v MGN Ltd that the protection of privacy was essential to the protection of human autonomy and dignity the right to control the dissemination of information about ones private life and the right to the esteem and respect of other people. In the same case, Lord Nicholls agreed that [a] proper degree of privacy is essential for the wellbeing and development of an individual. Thus the existence of a private sphere is vital for human development. It is the space in which individuals are able to experiment with preferences and build personal relationships beyond public scrutiny and judgment. Violations of the private sphere prevent individuals from obtaining these benefits. The private sphere is also critical to personal autonomy as a space over which an individual exercises control. To invade someones privacy disregards that individuals choices as to when and by whom he or she will be seen and what personal information he or she will divulge. That element of choice and control of the personal sphere, although a fundamental public good, is also capable of being exercised contrary to the public interest. So, for example, where an individual seeks to draw a veil of privacy over his or her criminal conduct, then the public interest in privacy will come into conflict with the public interest in law enforcement. But even there, the balanced result will be a partial and not a complete invasion of privacy, and one which is carefully prescribed by law; even in prison there are basic guarantees of human dignity. Where the public interest in free expression, in holding power to account, and in the pursuit of wrongdoing are all aligned on the one hand, and conflict with the public interest in an individuals privacy on the other, it is clear that the balance will be able to come down in
3.2
3.4
3.5
3.6
12
Feldman,D Secrecy, Dignity or Autonomy? Views of Privacy as a Civil Liberty, p54, http://clp.oxfordjournals.org/
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B
3.7
favour of the former. But again, it is important to keep in mind that the public interest in privacy, although compromised, never completely goes away. Violation of the private sphere must always be proportionate to any larger public interest being served. The element of control over ones personal life is never all-or-nothing, but a matter of an infinite number of degrees and decisions. Where an individual has chosen to put a matter within the private sphere into the public domain, then he or she will have ceded a measure of control over it.13 Making choices of that nature is of the essence of personal autonomy. They do not necessarily imply that other choices will be made, much less that the freedom to make other choices is also being ceded. Everyone is entitled to some private space and always provided that there is no countervailing public interest in exposure of that private space (because, for example, it exposes crime or serious impropriety)14 there is a public interest in preserving it. This important point was made in a number of ways to the Inquiry.15 An actor who is successful may be well known because his films are viewed by many. He may indeed wish and hope that many continue to view the results of his (and others) craft. It does not follow from this that he has a pathological compulsion to display himself, or to have every aspect of his life observed and documented. Nor does it follow that he has made some kind of tacit contractual agreement, where he has waived his privacy rights in exchange for fame.... Those who do wish to enter a quasi-contractual agreement where they exchange the protection of privacy for an increase in their fame should not be prohibited from doing so, but it does not follow from this that everyone that the public might have an interest in should have their private lives placed at risk of intrusive and invasive acts.16 3.9 To treat an individual merely as something to be talked about, reported or looked at against his or her wishes is contrary to the public interest in individual autonomy, and to the ethical imperative to treat individuals as an end and not simply as a means. It is right to acknowledge however that the nature of the public interest in privacy and our understanding of the implications of choices made by individuals about their privacy are matters which lie at the heart of a number of fast-moving contemporary social changes, about which a clear and stable consensus may not yet have been reached. The explosion in use of social media, particularly by the young, has not yet been matched by a settled understanding of the implications of the choices that people make in placing private material online; many do so unwisely or naively with disproportionate exposure to exploitation of such material and the compromising of their privacy. At the same time, the nature of commercial celebrity culture continues to be pondered even as it evolves with great rapidity; again, there is as yet no settled understanding or consensus about this. A celebrity obviously gives up his or her right to privacy if he or she sells an intimate
3.8
3.10
3.11
See, however, the observations of Dr Manson on the nature of privacy rights in public spaces and the difference between degrees of intensity in the public gaze: pp15-20, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/Transcript-of-Afternoon-Hearing-16-July-2012.pdf; p8, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/07/Witness-Statement-of-Dr-Neil-Manson.pdf 14 To use two of the examples of potentially supervening public interest considerations presently identified in the Editors Code of Practice 15 p9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Neil-Manson.pdf 16 p12, ibid
13
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photograph to a newspaper. How far this goes is another question. The right is clearly ceded as regards the transaction in question, but does that give the newspaper or even the press in general, a blank cheque for all purposes or for all time? Put in those terms, the answer, in my view, is clearly not. But around the margins there may be issues of fact and degree. 3.12 In any event, while the precise limits of the public interest in this area may be being developed and contested, the underlying basics must not be lost sight of. As Professor Megone put it:17 Journalists and editors need to recognise that both personal privacy and the importance of confidentiality can in part be understood in terms of an agents ownership of his own information, and the importance of that to the control of his own life. These are matters a free society seeks to protect as part of the public interest and the press need to be clear that they may well need respecting even when such respect adversely affects journalistic activity 3.13 The protection of the reputation and rights of others is expressly identified by Article 10(2) of the ECHR as a necessary public interest basis for limiting the expression of others. The right to freedom of expression must therefore be accommodated with other fundamental liberties. Thus, when confronted with conflicting claims under two protected ECHR rights, the courts must undertake a difficult balancing exercise to determine which will prevail. This is the reason why there is no protection for speech (written or oral) which unjustifiably damages a persons reputation or which interferes with a persons reasonable expectation of privacy.18
4. other public goods

4.1 The relationship between freedom of the press and the public interest in justice is similarly a matter of balance. On the one hand, freedom of expression is integral to the principle of open justice, which encompasses the entitlement of the media to impart and the public to receive information in relation to the process of justice. Therefore, any restriction on the ability of the press to report proceedings openly must be expressly limited.19 On the other hand, reporting restrictions may be necessary if the right of an individual to a fair trial would be prejudiced by publication of information about the proceedings: this is no more than the protect the integrity of the justice system and a persons right to a fair trial. Even more fundamental are the limits on freedom of expression necessary to protect a democratic society in which freedom of expression is able to flourish. Thus, first listed in the restrictions on freedom of expression permitted by Article 10(2) are those necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime. These are straightforward concepts which speak for themselves.
4.2
17
p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-ChristopherMegone.pdf 18 Appendix 4 19 Binyam Mohammed v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65 [40]-[41] ; In re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 AC 697, [63]-[64]
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CHapTEr 4 THE rESpoNSIBILITIES of THE prESS

1. Context
1.1 The idea that freedom of expression comes with responsibilities is both obvious and entirely familiar. Article 10(2) of the ECHR provides that the right to freedom of expression carries with it duties and responsibilities. In part, this is because, as discussed in Chapter 3, unrestricted speech has the power to harm competing public interests, including the free speech of others. It is also because the press is an institution of considerable power and the exercise of power in a democratic context brings with it proportionate responsibility for the consequences of choices to do so. Moreover, where power is exercised purportedly in the public interest, then there is a particularly acute responsibility to account for the exercise of that power to the public in whose name it is exercised.
2. press power and the impact on society

2.1 In order to understand the responsibilities incumbent on the press, it is necessary to consider the nature of press power and the potential it has to impact on society. One obvious aspect of the power wielded by the press is its capacity for mass communication:1 Mass communication has powers that local, individual, communication does not. Mass communication allows others to criticize, to inform of the failings, crimes, and deceit of the powerful. Mass communication allows agents to assemble, to unite, to form dissident movements, to organize and oppose those in power. 2.2 It is on account of this capacity of the press to communicate to large audiences, that the idea of the megaphone effect of the press was invoked with such frequency throughout the Inquiry. The megaphone effect of the press has a tremendous capacity to serve the public interest. It is because of the ability of the press to reach a wide audience that it is taken seriously by, and therefore able to stand up to, other institutions of power.2 [O]ne aspect of the public interest in a free press is that it provides an essential set of checks and balances on power (and, more importantly, the abuse of power): in all too many parts of the world the state routinely tortures and murders its citizens, though reporting of such facts is strictly prohibited. This can help a vicious regime retain an air of legitimacy, or, in some cases, even to present the air of democratic legitimacy (there are putative democracies which have serious restrictions on press freedom). Similarly, the there is a public interest in learning of dangers and risks, even where others may wish to conceal them. A powerful industrialist might wish to conceal the fact that his factories are polluting the water supply, or that his companys product is carcinogenic. A free press, free of the censorship and restrictions imposed by the powerful, thus serves the public interest by its investigative and communicative roles. 2.3 This power of the press to reach a wide audience, whilst having the capacity to do great good, carries certain risks:3
p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Neil-Manson.pdf ibid 3 p3, ibid

2
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Chapter 4 | The Responsibilities of the Press
Communication is a relational process, taking place between speaker (or writer) and audiences. A powerful media, even a powerful free media, can effectively block dissenting voices. Mass communication by the press can block dissenting voices in a number of ways. One is by preventing access to audiences. Access to audiences is integral to the ability of individuals to experience the communicative aspects of free speech:4 Expression can be done by a lone individual, but communication is essentially relational, and involves others. Individual speakers have an interest in being accessible to audiences. Communication can be stifled, not by blocking speech, but by blocking access to audiences. For example, suppose a cunning King permits dissenting political views to be expressed, but only at the bottom of a deep mine shaft. Though here, strictly speaking, one has an opportunity to express ones views, one is not free to have them heard. Not only do we have an interest in there being an audience for our speech, we also have an interest in our being the audience to others speech. 2.4 Clearly, if a particular individual or group of individuals are denied access to the press to promote their views, their ability to reach audiences is diminished:5 Writers of such columns in the press can seek to mitigate these criticisms by endeavouring to articulate what they take to be important or widespread lines of thought. But this still points to the fact that in terms of self-expression the press only allows a select few to promulgate their views. Although absence of censorship allows others to set up press outlets, in principle the resources required to do this effectively limit this opportunity. This argument could be taken further and it could be said that the public interest in freedom of expression can even be adversely affected by a free press, if certain other conditions hold such that some voices get much more prominence than others. In those conditions the power of the press as a medium of expression may lead to certain views dominating the public sphere and other views being squeezed out. 2.5 One consequence is that views expressed through the press megaphone are more likely to predominate: Whether somethings liable to be noticed, what effects its liable to have on other peoples perceptions must be very relevant;6 Financial power ensures that one sort of idea is more likely to be promoted in the newspapers people read than another sort of idea.7 The tendency of views expressed in the press to prevail can be also be explained by a second, and related, facet of press power. There is no doubt that the press is considered a voice of authority in society. In many quarters, it has rightly earned a reputation for accurate and vigorous reporting, independence and holding power to account. It is because of the authoritative quality of the press, combined with its access to mass audiences, that
2.6
p6, ibid p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-ChristopherMegone.pdf 6 p32, lines 16-21, Professor John Tasioulas, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-16-July-2012.pdf 7 p24, lines 15-18, Professor Jennifer Hornsby, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-16-July-2012.pdf
5
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communication by the press, as an institution of considerable power, has a significant impact on society. It can set the news agenda, shape culture and change perceptions:8 9 10
B
2.7
There is a great deal of difference between a bloke down the pub claiming, to his fellow drinkers, that the MMR vaccine causes autism, and a broadsheet newspaper doing the same thing. Media institutions can shape public opinion, they can entrench, or change, public opinion in a way that individual speakers cannot. The existence of a press with such significant power is a potent antidote to the dominance of big business and government; but it also has potential to do great harm if not exercised with responsibility:11 If someone in a position of moral or political authority makes a statement about race or about gender, it isnt simply that there will be a wider audience for that but also that the opinion comes with a greater degree of with an imprimatur, or seems to, and that itself is problematic. Thats why positions of responsibility in society are very difficult, because you have to take a lot of care about what you say because people pay attention to it. 2.8 The press has the power to cultivate stereotypes, not just as a matter of the megaphone effect, but by cumulative effect also:12 there is an asymmetry between the individual case and the case of the press. One of the reasons we tolerate the fairly broad-ranging right of individual expression is that individuals remarks are typically limited in their impact But this megaphone effect is a kind of culture-shaping effect It exerts much greater influence and power on people, how theyre perceived by others, creating stereotypes or creating certain assumptions in society. 13 It means that publications in the press are peculiarly vulnerable to promoting stereotypes, because its whats heard is widely heard. If its assumed that a member of a group is portrayed as a typical member of that group, then attitudes at large towards the group will be affected. 14
3. Communication: truth, comment and assessability

3.1 The role of a free press as an agency of free communication (rather than of self-expression), of constituting a public forum of views and ideas, is an important one to focus on. The term media implies both a conduit or market-place role (the means by which material is communicated) and also the freedoms of the press to comment, in a partisan way, on the
p17, lines 13-24, Professor Hornsby, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-16-July-2012.pdf, quoted at [x ] above 9 p19, lines 10-25, Professor Tasioulas, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-16-July-2012.pdf 10 p7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Neil-Manson.pdf 11 p33, lines 3-12, Professor Susan Mendus, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-16-July-2012.pdf 12 p52, lines 3-12, Professor Jennifer Hornsby, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-16-July-2012.pdf 13 p19, lines 10-21, Professor John Tasioulas, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-16-July-2012.pdf 14 p17, lines 13-24, Professor Hornsby, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-16-July-2012.pdf
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material that they publish (the message is editorially mediated). The vocal power and reach of the press, and its freedoms to mediate, are what make it a mighty force. 3.2 A free press performs its communication role in a democracy in a myriad ways, day in and day out. It is by no means only through political journalism and holding authority to account that the press proves its value in this way (although those are very important aspects in their own right). All forms of journalistic content potentially perform this vital role. Debate and comment, information and speculation, news and opinion, education and entertainment, all play their part. It is exactly this multifunctional and multifaceted package of content, produced with such verve and to deadline week in, week out, which makes the press such a marvel, such a matter of pride. The different functions of the press, though, have different implications. We care about them in different ways and for different reasons. We apply different standards to them. So, for example, we might say we wanted the TV listings and football results to be accurate; the editorial to be opinionated (perhaps to confirm or challenge, or help us form, our own opinions); the sports reporting to be lively (and reasonably fair), the travel writing to be inspiring but not misleading, the crossword to be challenging but not impossible, and so on. And above all, we want it all to be accessible and a good read, as we all think of that in our different ways. This communication function is, in other words, an extremely complex and sophisticated exchange between editor and reader. Nowhere is that more the case than in the role of the media in conveying news. It is here that both the demands and expectations of readers are particularly complex. We know that some news is more important than others, but we vary in our judgments about that. We want to know the facts, but we also want to know how people experienced them and what people think about them. We want the spirit as well as the letter of events the emotion, the meaning, the drama, the implications. We have an instinct that different kinds of news should be communicated in different ways (a politicians mistake, an outbreak of disease, a missing child, a disappointing new film, another rape in the town), but we will not find it easy to articulate those differences with any great precision. We also know about the editorial inflection, the world-view, of the newspaper we read. For some, if not most, that is very much part of why it is their newspaper of choice. That does not mean we always agree with it. But we are familiar with it, and that familiarity is at some level part of the attraction. Newspaper readership is remarkably loyal. We want the news in the press to be true and accurate; we do not want to be misled or lied to. But we want, or are content for, it to be presented in a partisan way. We want a measure of balance and context, but we also want a perspective. We want the truth, but we understand that there are many versions of the truth, and incompleteness in all versions. Notwithstanding the emphasis put by both the industry and its critics on the difference between fact and comment these are by no means distinct and watertight categories. The very act of describing a fact is to comment on it. All forms of recording are selective. What authentic communication between editor and reader needs in these circumstances is no more, but no less, than a measure of shared understanding of what is going on in that act of communication. In most cases, that is easy and obvious. There will be a common expectation of complete accuracy in the TV listings; mistakes will irritate and inconvenience readers and ultimately drive them to look elsewhere. A newspaper urging readers to support a particular party in the run-up to a General Election can be expected to be more sympathetic to that partys outlook and objectives than anothers, and to reflect that sympathy editorially elsewhere in its pages.
3.3
3.4
3.5
3.6
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3.7
But in some cases, it will be neither easy nor obvious for readers to orientate themselves in relation to material they read in the press. Some important examples were put before the Inquiry in the course of the evidence. They included, for example: (a) (b) science and health reporting, where most non-specialist readers cannot easily judge for themselves what experts are telling us; consumer journalism such as property or travel reporting and restaurant reviewing, where we might not know whether a journalist has been an objective mystery shopper or whether he or she has in fact been treated to holidays or meals by the organisations being reviewed, or owns a property in the same square as the house being praised in the newspaper; PR journalism, in which what is effectively commercially-produced advertising material is reproduced as editorial without mediation at all; the reporting of identity issues (gender, ethnicity, sexual orientation, religion, age, disability, appearance and so on) where the fact and manner of bringing such issues into coverage has a potential to implant a relevance for them in readers which they have not chosen.
(c) (d)
3.8
In all these cases, that is to say the inaccessible expertise, the conflicts of interest, the subliminal, or the simply misleadingly incomplete, the reader cannot straightforwardly make up his or her mind about what the newspaper is saying. Professor Baroness Onora ONeill, who gave the Inquiry her views as a leading expert in the field of public thinking on the role of the media, describes the need for readers to be able to orientate themselves in relation to what they read as assessability. Mostly, readers know where they stand with what the papers say, and can make their own minds up about it. But not always. Where they cannot do so unaided, more is needed for the press to fulfil its proper role. This point about the importance of authentic communication by the press, which respects the needs of readers to be able to make their own minds up about what they are reading, was made to the Inquiry in a number of ways. Examples include: Those who aim to communicate must aspire to standards which are inapplicable for those who aim only to express their own views. 15 The public interest in a free press is not confined to the public interest in a press that reports matters of fact accurately and observes the disciplines of truth seeking needed for various sorts of inquiry. It also includes an interest in having a press that communicates other sorts of content eg music and art, puzzles and stories that do not make truth claims. Nevertheless, where truth claims are made, there is a particularly strong public interest in standards of media communication that meet the relevant requirements for truth seeking accuracy about evidence and its limitations; distinctions between different sorts of evidence; the inclusion of necessary qualifications, and many others. 16 Good public interest journalism enables the public to judge what is being said. There may be cases where one has to hold back on the source of certain information,
3.9
15
p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-SusanMendus.pdf 16 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-BaronessONeil.pdf
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but good public interest journalism seeks to make the sources and the evidence as available to the public as is feasible, given certain other constraints.17 I think the default in favour of openness is actually what good journalism does. They try to give the sources where they can. The difficulty about confidential sources is the problem that the reader has in knowing (a) was there any source at all and (b) was it a reliable source?18 One aspect of the public interest is the public interest in truthfulness Here there are two kinds of interest. There is the direct interest that individuals have in not being deceived or misled. But there is also a second indirect interest in truthfulness, an interest in maintaining a culture of trust. If communication is believed to be untruthful (or inaccurate), then trust in communication may diminish.19 Simply requiring accuracy or truthfulness does not preclude a free press from misleading, distorting, or, in some cases, from covertly serving or promoting vested interests.20 News media are often intermediaries. They play the role of communicating facts that have been discovered, established or claimed by others. The evidence, warrant or other justification for such claims may be lacking, or suspect. The intermediary may not be competent to assess the claim, or have access to the evidence. They may be willing to pass on claims made by other self-interested parties in an uncritical way. 21 Knowing the source of a story is relevant to how we interpret it. Audiences reactions to an article on a new wonder drug that combats cancer might be less favourable if they knew that the copy was verbatim from a press release by the company making the wonder drug. Our response to advertorials may (or at least ought to be) different from our response to news stories.22 With regard to truthfulness and other norms of communication, the arguments offered here are not that this or that claim ought to be made but rather, that the appropriate procedures and mechanisms need to be in place to ensure that what is said (whatever it is) is justifiable, assessable and evaluable with regard to its source. Ensuring communicative adequacy does not determine or constrain content, except insofar as content is unjustified, misleading and untraceable.23
4. press ethics and the role of a code of ethics

4.1 Press ethics, to which the Inquiry was directed by its Terms of Reference, can be understood at a simple level by reference to the choices available to a free press, where those choices may have consequences for the benefit or harm of others, whether individuals, groups or the public as a whole. These are the choices by which newspapers and journalists can exercise their freedoms so as to fulfil the unique and important role of the press in a democracy or
17
pp66-67, line 25-6, Professor Baroness Onora ONeil, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/Transcript-of-Afternoon-Hearing-16-July-2012.pdf 18 pp83-84, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-Afternoon-Hearing-16July-2012.pdf ibid 19 p10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Neil-Manson.pdf 20 ibid 21 p10 ibid 22 pp10-11, pp25-18, ibid 23 p12-13, ibid
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indeed to undermine it, to promote or restrict public communication and debate, to enhance or harm civil liberties and the autonomy of individuals.
4.2
These are choices which fall to be made within the framework of the law. Compliance with the law (criminal, civil and regulatory) does not necessarily exhaust the ethical choices to be made by a free press, nor does consideration of legal risk and consequence exhaust the responsibilities of a press aiming at journalism in the public interest, which takes into account ethical risks and consequences. The choices that a responsible and ethical press will make, then, flow from precisely those aspects of a free press which give it a unique role and privileges in a democracy, and from an awareness of its power to affect the public in general, and individual members of the public, for better or worse. The following are examples. (a) If a free press in a democracy has a special role in facilitating free communication and in constituting a public forum, then an ethical press will want to comply with good standards of communication. It will want to enable people to recognise and assess the material being provided. Where it provides information, that information will be reasonably intelligible and accurate. If a free press in a democracy has special privileges to keep its sources secret, then an ethical press will be mindful of the reasons for and effects of that privilege and will exercise it only for those reasons, and bearing in mind those effects. It will want to ensure that the protection of sources is used to enhance the free flow of significant information and especially to protect those seeking to help hold power to account. It will not use it merely to constrain or control sources, nor will it abuse the privilege to mask the weakness or absence of sources or the existence of conflicts of interest, or to hide its own wrongdoing. If a free press in a democracy has a special place because of its ability to hold power to account, an ethical press will consider itself to have responsibilities to do just that. It will not collude with the powerful at the expense of the public. It will challenge all kinds of sources of power, both public and private. It will be mindful of the power of the press itself, and seek to hold that power to account no less than other sources of power. And it will support others with responsibilities for holding power to account in doing so, including in the case of the media itself. Further, a free and autonomous press within a democracy will be mindful of the democratic freedoms and autonomies of others. All such freedoms and choices, after all, stem from the same sources of democratic authority and accountability. And all ethical systems have at their core a sense of respect for the individuality and selfdetermination of others.24 People are the stock-in-trade of journalism. An ethical press will therefore be especially mindful of the need to ensure that the individuals it deals with, both as sources of information and as the content written about, are treated as subjects and not objects, and both as subjects in their own right and as subjects in context, with families, connections and group identities which may be affected by the treatment of the individual.
4.3
(b)
(c)
(d)
4.4
All of this is to re-emphasise that the freedom of the press, even the freedom of the press within the limitations and accountabilities under the law, is not enough by itself to secure the important democratic benefits for which press freedom is a prerequisite. To become an
24
pp33-34, lines 18-1, Dr Neil Manson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofAfternoon-Hearing-16-July-2012.pdf
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authentically free press of the kind valued and privileged in a democracy, the press must also exercise its freedoms effectively for that purpose. It must actively choose that role and live out its implications. That point was made to the Inquiry in many ways; examples include: The duties or responsibilities of the press follow straightforwardly from the reasons we have for wanting a free press. So if one of the main reasons for wanting a free press is that we be fully informed as citizens, then there are responsibilities on the press to be accurate, honest, open and accountable. 25 Clearly though, a press which is free in the sense of not being controlled centrally, not censored, will only be meeting a necessary condition for serving its purposes of informing and scrutinising. In order for the press to serve these public interests it will also need to pursue its work with accuracy and rigour, to be concerned for the truth, to seek to avoid bias or serving particular interests, to make wise judgments as to what is worthy of public attention and what not, and perhaps to be courageous in pursuing these goals. (And it may well also be that in order to serve its purpose the press needs to communicate in ways that are intelligible and assessable). 26 Freedom is not licensed, and thats the way in which all these responsibilities bear on how you exercise your freedom. So you have those guiding aims of the media holding people accountable and presenting information serving those roles and then these constraints. 27 The strategy here has been to focus on the valuable ends that a free press is meant to serve and then to point out (a) that a free press need not secure those ends; (b) that a free press can even stand as an obstacle to the achievement of those ends. This is not to argue in favour of censorship but to point out ways in which a free press can fail to contribute towards the public interest, and, as such, public-interest based justifications will fail to apply. 28 it is important for good judgment that the press is clear not only on the nature of the purposes it serves in a free and democratic society but on their partial contribution to public interest as a whole and the independent significance of other components of the public interest. In my view the press itself at present assumes too quickly that freedom of the press (and free expression to the extent that is related to press freedom) is sufficient to guarantee that the press serves its distinctive role in contributing to the public interest. On the one hand this is problematic because press freedom is only a necessary condition for the press to make its distinctive contribution to the public interest. Treating it as a sufficient condition is making the press insensitive to all the other factors that are critical to this accuracy and rigour, avoidance of partiality, bias, conflict of interest, and the other factors mentioned above. All these must receive appropriate attention. But this is also problematic because assuming that a process (a free press) will achieve a beneficial goal allows journalists and editors to fail to address carefully the question of what exactly that distinctive purpose is, or how it relates to other parts of the public interest. 29
25
pp36-37, lines 22-2, Professor Sue Mendus, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-16-July-2012.pdf 26 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-ChristopherMegone.pdf 27 p104, lines 6-12, Professor Christopher Megone, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-16-July-2012.pdf 28 p6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Neil-Manson.pdf 29 p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-ChristopherMegone.pdf
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While it is important to protect genuine investigative journalism into matters of public interest it is also important to distinguish the genuine article from purported investigative journalism that ignores or flouts the relevant disciplines of truth seeking, or is not directed at any matters of public interest. Pseudo public interest journalism discredits the genuine article, is not assessable by its audiences and damages the reputation of the media. 30 The moral justification for a media organisations rights of expression and communication turns on the role of media organisations rights in constituting a public sphere that gives appropriate status and respect to individual people, and on the related instrumental grounds [of constraining power and enabling democratic deliberation and decision-making]. 31 The public interest is not just in a free but a diverse press, and also given the presss power and its central role within the public sphere of democratic policy-making an accountable press too. 32 The fact that the press has certain investigative powers doesnt mean automatically that it has carte blanche to do whatever it wishes to find things out. 33 Freedom and responsibility are not incompatible notions. Principally behind the notion of freedom in my account is freedom from censorship, from authorities coming in and telling the press what they may or may not say with respect to output, but they may nonetheless have a number of responsibilities they need to respect in producing those outputs. I think thats very important. No, I dont see them as inconsistent. 34 4.5 The point was also made more narrowly, to underline that the freedom of the press, and the value inherent in its freedom to publish, is the beginning and not the end of the questions about the public interest: The fact that freedom of expression is in the public interest and it clearly is it doesnt follow that every instance of expression is in the public interest. 35 I think a kind of slippage can happen in which this freedom of expression is seen to be the primary public interest the public has in the press, and then that can then seem as liable to trump many of the other side constraints. So, and if ones a journalist and one values being allowed to write what one thinks is important, theres a kind of, as I say, a natural slippage in which this freedom of expression can be seen to be the dominating aspect of ones code. 36 4.6 I set these thoughts out to underline, and indeed to risk labouring, the point that ethical standards are not inconsistent with a free press but necessary for it fully to realise the value of its freedom. Ethical standards and behaviour are about valuing the freedom of the press for what it is, and seeking to promote all that is good about that freedom, and not just about
p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-BaronessONeil.pdf 31 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Rowan-Cruft.pdf 32 p3, ibid 33 p7, lines 6-9, Dr Neil Manson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofAfternoon-Hearing-16-July-2012.pdf 34 p102, lines 12-21, Professor Christopher Megone, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-16-July-2012.pdf 35 p93, lines 3-5, Dr Rowan Cruft, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-16-July-2012.pdf 36 p111, lines 12-22, Professor Christpher Megone, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-16-July-2012.pdf
30
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avoiding the shoddy and the disreputable (far less just the unlawful). A free press certainly has choices which it can exercise in ways which undermine the premises of its freedom and work contrary to the public interest. An ethical press will not choose to exercise its freedoms in that way. 4.7 With freedom, rights and privilege therefore come choices, and with choices, responsibilities as to how they are exercised and with what consequences. With choices which affect the public sphere, come also public accountabilities. The private interests of the press industry, or of organisations within it, can be expected to be strongly aligned with the public interest for just this reason: it is what the free press in a democracy is all about. But there will also be powerful motivations of a contrary nature to be overcome by an ethical press. An ethical approach requires a culture of care and awareness, but deadlines are short and time is money. A diverse and plural press will also be a highly competitive one, contesting among its titles for readership and reputation. And the pressures of public demand, real or perceived, are by no means a reliable guide to the public interest. This latter point is a well-worn one: the fundamental difference between the public interest and what interests the public. It is nevertheless a point which it is important to stress once again, if only because of the seeming indefatigability of the argument in some quarters that whatever sells newspapers must ipso facto be a good thing, since newspapers are a good thing in themselves. The argument is sometimes put more subtly: that newspapers should simply meet the demands and expectations they perceive their readers to have or be capable of having in a non-judgmental way, and that the flourishing of newspapers by such means directly supports their ability to fulfil the higher purposes and freedoms of the press. But this is simply a further restatement of the error that because it is good for the press both to flourish and to be free to make choices, its exercise of those choices in its own perceived interests will itself necessarily be good. The fallacy of this line of reasoning was emphasised to the Inquiry in a number of ways: The key point here is that the fact that people have a (vicious) curiosity clearly does not entail a right to know those things, nor does it automatically excuse those who breach other norms in the service of that curiosity. 37 There is no ethical duty at all to provide audiences with whatever they want, even if there are good economic reasons for doing so. 38 The we are only providing people with what they want may appear to have a whiff of nobility about it, but where peoples wants are vicious, it is little more than an admission of lack of moral sensitivity. 39 [The idea of the publics right to know] is puzzling and problematic for many reasons. First, it is not clear what the scope of the right is (right to know what?). Second, the very idea of a right to know is problematic. If it is a negative claim right (no one is permitted to stop me from knowing) then this does not entail any correlative right of publication or communication. But a positive right to know (others are obliged to ensure that I know) is not feasible: I might not believe them, even if they tell me the truth. Worst still, it doesnt tell us anything at all about whom the obligation to inform might fall upon. 40
p9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Neil-Manson.pdf p15, ibid 39 p19, ibid 40 p16, ibid
38 37
4.8
4.9
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4.10
B
4.11
The commercial interests of the press in supplying or stimulating demands for particular kinds of content are not therefore either identical to, or even necessarily aligned with, the public interest in a free press. More than that, in an industry with people as its stock in trade, and assuming an evident and growing public appetite for information about other people which is contrary to the public interest because of the way in which it affects the personal autonomy or individual rights of those people, the commercial interests of the press have a clear potential to act contrary to the public interest. There are other respects in which the commercial interests of the press have a clear potential to tend contrary to the public interest. They include the instances discussed above in which the private interests of individual journalists, editors or proprietors may be engaged in editorial content in ways which may not be apparent to their readership.41 They also include incentives to anti-competitive business practices and cartel behaviour, that is to say practices which may benefit one organisation at the expense of the diversity of the sector as a whole, or which may seek to unite the industry against healthy competitive disciplines and external scrutiny capable of benefiting readers and the public as a whole. There was some emphasis throughout the Inquiry on the place of ethical codes in supporting an ethical press. I put the matter that way with care. No code of ethics can make an unethical organisation or sector an ethical one. An unethical organisation will simply find ways round or disregard any code it purports to apply to itself when motivated to do so. An ethical organisation, on the other hand, will be helped and guided by a code of ethics, but that will be on the basis that the code is simply a clear encapsulation of the values and practices of the organisation in any event. This is a very fundamental issue about culture, practices and ethics, and the way they relate to each other. Professor Christopher Megone, who has worked extensively with industry bodies (mainly in finance and engineering) on issues of workplace ethics, put the matter this way to the Inquiry: Of course an ethical media organisation needs to have an ethical code, one which reflects the distinctive mission of the organisation as part of the press (and thus is aware of the key role of the press regarding the public interest), and one which is sensitive to the particular ethical challenges that may arise for editors, journalists, etc in pursuit of their mission. However, even more critical to the existence of an ethical media organisation is culture. If there is an unhealthy culture then an organisation can have an ethical code but it will have little influence. Members of the organisation can undergo ethics training but it will have little effect. As soon as they return from the training to their desk or office, the pervasive culture will dominate their decision-making. The culture brings to bear all sorts of accepted norms which an afternoons training will be relatively powerless to affect. (I do not, of course, think that good ethics training is pointless, but simply that its effectiveness depends on whether, or to what extent, other factors are in place in the organisation.) there are a number of critical factors that could be expected to bear on ethical culture in a media organisation. First, tone from the top leadership is of tremendous importance. The role of owners and editors here will be crucial. Certainly the organisation needs to have its ethical code, but that code needs to be fully understood and endorsed by its owners and editors, and these people need to live
4.12
4.13
41
pp71-72, lines 20-8, Professor Baroness ONeill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Afternoon-Hearing-16-July-2012.pdf
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out that code day in and day out. This is a decisive factor in that code having meaning for all who work in the organisation. But their living it out means thinking about how they can convey the code through their practice right across the organisation, how they interact with employees right across the organisation in a way that makes it resonant for them. Secondly, an ethical organisation needs to have an open and honest culture in which it is possible for members of the organisation to raise their concerns about practices and to discuss them with colleagues and senior staff. [S]taff need to feel confident that if they perceive unsatisfactory practices to be developing, or face a challenging situation, they can raise the matter with colleagues or senior staff. And they need to be confident that they can do so, and have a proper discussion, without fear of mockery or retribution. Accepted norms need to be open to challenge. Amongst other things, developing an open culture in a press/media organisation will require sensitivity to the particular kinds of pressure that journalists and other employees are bound to be under. 4.14 Against this background, an operative code of ethics therefore would have a number of potential functions. (a) It would serve as a reminder of the special importance and roles, the freedoms and privileges, the power and responsibilities of the press. It would, in other words, provide a full context for the choices which fall to be made in practice so that they can be made in accordance with the principles to be derived from this context. It would, in short, explain what ethical (or, as it is sometimes described, public interest) journalism is. It would help journalists to understand the circumstances in which they are called upon to make ethical decisions. It would help them to make the right choices in practice. It would do this not as a matter of rigid and disconnected prescriptions and prohibitions, but by promoting a stable disposition to act in certain ways for the right reasons.42 It would recognise and explain the circumstances in which the temptations and motivations to act unethically (including commercial motivations) may be especially strong, and why they need to be resisted, in order to change the incentive structure in such cases.43 It would seek to provide clarity, and would focus on practical applicability to everyday decision-making. It would not expect to stand alone. It would take its place in a context of ethical culture, sources of advice and guidance both generally and at the particular levels of training, reinforcement, management and feedback. It would be authoritative and respected. It would have consequences in terms of how individuals and organisations are perceived, in terms of rewards and sanctions.
(b)
(c)
(d) (e)
(f) 4.15
The Inquiry asked a number of its witnesses specifically, and through its website the public more generally, what would be the distinguishing features of the culture and practices of a media industry, or any organisation which was a part of that industry, which would make it a recognisably ethical one. I was particularly interested to hear in response about Professor
42
p13, Dr Neil Manson,http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-DrNeil-Manson.pdf 43 p61-62, Professor Sue Mendus,http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-16-July-2012.pdf pg 61, line 17 - pg 62, line 9
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Baroness ONeills suggested six principles of openness44 for identifying ethical journalism which seem to me to have much to recommend them:45
(a) (b) (c) (d) (e) (f) 4.16
openness about payments from others openness about payments to others openness about the interests (financial or otherwise) of owners, editors, programmemakers and journalists openness about errors openness about (most) sources, with an adequately drawn test of the public interest to allow sources to be kept secret, for specific reasons and in particular situations openness about comments from members of the public.
It is also worth setting out extracts from some of the answers to this question which appear to me to be particularly illuminative. I do not mean a media industry driven by ethical goals in the way that a charity like Oxfam is. I mean, rather, a media industry whose members and whose regulatory framework, while driven by a range of diverse goals that are not necessarily ethical in a narrow sense, are nonetheless deeply sensitive to the industrys pivotal role in the liberal public sphere A free press within an ethical media industry in this sense would have the following features, among others: a sense of journalism as a profession with its own aims and values, including respect for the truth, respect for those about whom the press writes, respect for readers; poor practices (unethical, illegal, or contrary to the reasons supporting press freedom) are regarded as shameful and their practitioners are ashamed of them;- whistle-blowers are supported; journalists, editors and proprietors grasp the complexity of the moral role of the press (as, perhaps, politicians since the expenses scandal grasp the moral complexity of their own role); the wider public is willing to pay the comparatively high costs (e.g. of ethical investigative methods) to support a press that upholds a liberal public sphere.46 In my view media organisations are ethical if they genuinely try to communicate in ways that enable intended audiences to understand and to assess what they publish, while respecting the legitimate claims of those on whom they comment and of those affected by their reporting. These are demanding aims. To meet them the media need not only to refrain from unlawful speech acts (threatening, bribing, defaming, breaches of data protection, breaches of confidentiality and many others) but to meet adequate ethical and epistemic standards in journalistic, editorial and business practice. 47
pp81-87, lines 14-18, Professor Baroness ONeill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Afternoon-Hearing-16-July-2012.pdf; p11, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/Witness-Statement-of-Professor-Baroness-ONeil.pdf 45 p11, Professor Baroness ONeill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/WitnessStatement-of-Professor-Baroness-ONeil.pdf 46 p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Rowan-Cruft.pdf 47 p6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-BaronessONeil.pdf
44
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1. There is a need for an aspirational code, not simply a list of prohibitions against failings which those in the media fall into. 2. Such a code needs to be presented in the context of the specific critical contribution that a free press can make to the public interest... 3. The code could then be developed in terms of the duties to the key parties with whom the press/media interact in ethically relevant ways. 4. A code by itself is not worth the paper it is written on unless it is a lived code. To make a code a lived code, media organisations need to attend to the critical factors that can bring about an ethical organisation, or promote integrity in an organisation. These factors include tone from the top (or leadership), an open and honest culture, and so on. 5. Part of developing such an ethically reflective organisation might be to introduce governance reports which press/media would produce annually, writing such reports in light of the requirements of the code. The reports might reflect both on the ethical culture of the organisation and on the organisations contribution to the public interest. Any such governance reporting would need to avoid either being overburdensome or being a mere ritual in order to be both effective and meaningful 48 In order for a code of conduct to be properly effective it has to be, not only coherent and justified in terms of its normative content, but such that there is something about the social, institutional, legal or practical context that motivates and secures compliance. 49 4.17 I conclude this analysis by recognising the risks that this Inquiry must confront. The Editorin-Chief of the Mail titles, Paul Dacre, identified these risks, and the challenges the Inquiry faces, in this way:50 ...I would argue that Britains commercially viable free press, because its in hock to nobody, is the only real free media in this country. Over-regulate that press, and you put democracy itself in peril. I have always been keenly aware of the dangers of going too far; and I have been continually reminded as the Inquiry has progressed. In short, it has not been difficult for me to remain alive to this critical risk. I go further. The public interest in a press which is free, which is viable, and which is diverse cannot be too highly valued. Without investigative journalism, and the ability of the press to scour hidden places, the domain of the powerful, for potential wrongdoing, our democracy would be severely impoverished. Nothing I shall recommend will fail to hold to these principles.
48
p13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-ChristopherMegone.pdf 49 p15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Neil-Manson.pdf 50 Paul Dacre, The future for self regulation?, 12 October 2012, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/RPC_DOCS1-12374597-v1-PAUL_DACRE_S_SEMINAR_SPEECH.pdf
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parT C The preSS
ChapTer 1 ConTexT
1. Introduction
1.1 The Inquiry is required to examine the culture, practices and ethics of the press but, in order to do that, it is helpful to set out the commercial context within which the press operates. This Part of the Report looks at the market for news provision and some of the ways in which it is changing as well as the newspaper market more generally. This Chapter looks briefly at the economics of the newspaper market and where the challenges are coming from. Chapter 2 looks at the main players in the newspaper industry, including a brief review of the history of each where relevant, the financial and commercial performance of each and the governance and compliance processes in place at each title. This is all important background in order to understand the differences, if any, between the cultures and practices of individual titles and publishers. The focus of Chapter 2 is on the national press, and within that on those with the largest circulation and market share. The Chapter also looks briefly at the markets for regional and local newspapers and for magazines, drawing, in particular, on evidence that the Inquiry has heard from specific titles. There is no attempt at a detailed analysis of these markets; this is not needed for the subsequent consideration of the issues at the heart of this inquiry. Chapter 3 looks at other, non-print, news providers. This includes both the economic models and market pressures, but also the regulatory environment within which they operate. Again, this is important context for subsequent analysis. Finally, Chapter 4 looks at the way in which competition law specifically applies to the press and the media, providing a brief history of media ownership and plurality provisions and how they currently apply.
1.2
1.3
1.4
2. Commercial pressures on the press

2.1 It is undeniable that the market in which newspapers compete has changed substantially over recent decades and continues to change rapidly. The rise of digital broadcasting and the internet mean that UK citizens now have a much broader range of news and media providers offering news coverage, current affairs and entertainment than ever before; and newspapers have to compete in this market both for advertising revenue and for readership. The result is that newspapers have a significantly smaller reach than they did 20 years ago, to say nothing of 50 years ago, and are operating in a media environment in which consumers and citizens have very different expectations of standards from different types of media. Whilst newspapers are losing their share of the market, the costs of producing the news are not reducing significantly and much of the competition on the internet comes from organisations which are not, themselves, the originators of news content. These changes mean that the commercial environment in which the press is operating is quite different to that in which the current self-regulatory regime was first established.
2.2
2.3
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Newspaper economics
2.4 The media landscape in 2012 is very different from that which Sir David Calcutt QC looked at when he made his recommendations that led to the establishment of the PCC in 1990. Then, the internet did not exist as a consumer medium, UK citizens had access to only four terrestrial TV channels, BBC1, BBC2, ITV and Channel 4, and satellite broadcasting had only just begun and was accessed by only a tiny minority of families. On the radio, citizens could listen to the (then) four BBC national radio stations (only joined midway through 1990 by Radio 5), local BBC radio and 69 commercial local radio stations. This meant that, in reality, most people had a choice of only two different radio providers. National newspaper circulation stood at over 15 million for the national daily newspapers and nearly 18 million for the Sunday papers.1 Regional and local press circulation (for paid-for papers) was nearly 17 million in total. The UK citizen therefore had limited sources of news and was heavily dependent on newspapers; broadcast media was limited to a very narrow range of broadcasters, with TV broadcasters, at least, having a public service remit in respect of news. The picture now is very different. The citizen today has a very wide range of sources of national, international and local news and comment, in a world of ever growing media complexity. Virtually every UK household has digital TV, providing a profusion of channels, including four free-to-view 24 hour news channels and others available with subscription. There are now 21 national radio channels, and 344 local radio stations,2 all of which will carry some form of news. Over 70% of adults in the UK have access to broadband.3 All media organisations, whether newspapers, broadcasters, or others now have some form of established internet presence, and the internet has opened up access to UK citizens to news coverage from across the world; some of this is from professional media organisations, but it also includes citizen journalism from individuals sharing their experience of, and views on, events that occur. Nearly a quarter of all the time that adults spend engaging with media is spent on the internet.4 Against this growing digital activity, newspaper circulation has fallen significantly, as shown by the table below. The national daily newspaper circulation stood at 9.45 million in September 2011.5 As Claire Enders explained at one of the Inquiry seminars in October 2011, the declines since 1990 and the Calcutt report have been biggest in the popular national press and the regional press, both falling by over 40%6 while the quality national press have seen falls of only 25% over that timescale. However, the decline has accelerated since 2005;7 that period has seen the whole of the 25% post-Calcutt fall in circulation of the quality nationals, while the popular nationals have fallen only by 14% in that time scale. Whilst other media sectors are now showing recovery from the recession, that is not the case with newspapers and magazines.8
C
2.5
2.6
2.7
2.8
http://www.competition-commission.org.uk/rep_pub/reports/2000/fulltext/442a4.2.pdf - cited as being cc from data in Advertising Statistics Yearbook 1999 2 http://stakeholders.ofcom.org.uk/binaries/research/cmr/cmr11/UK_Doc_Section_1.pdf 3 ibid 4 Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2011, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/07/Claire-Enders-Competitive-pressures-on-the-press.pdf 5 Guardian website based on ABC figure http://www.guardian.co.uk/media/table/2011/oct/14/abcs-nationalnewspapers 6 Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2011, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/07/Claire-Enders-Competitive-pressures-on-the-press.pdf 7 ibid 8 ibid
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Chapter 1 | Context
2.9
This table shows circulation for both national daily and Sunday titles in September 2002 and September 2012. Although the speed of circulation decline differs from title to title there is an evident trend here.
Table C1.1: National newspaper circulation 2002 - 2012

Title The Sun Daily Mirror Daily Star Daily Record Daily Mail The Express Daily Telegraph Times FT Guardian Independent News of the World Sun on Sunday Sunday Mirror People Daily Star Sunday Sunday Mail Mail on Sunday Sunday Express Sunday Times Sunday Telegraph Observer Independent on Sunday
Source: Audit Bureau of Circulations9
Circulation Sept 2002 3,733,052 2,130,859 855,880 540,886 2,387,149 942,842 934,527 640,424 417,911 389,894 187,042 4,067,205 1,804,334 1,301,799 719,308 656,921 2,306,911 910,177 1,387,182 744,023 432,938 186,188
Circulation Sept 2012 2,445,361 1,072,687 586,743 272,799 1,884,815 543,912 560,398 406,711 287,895 204,937 81,245
% change - 34.49 - 49.66 - 31.45 - 49.56 - 21.04 - 42.31 - 40.03 - 36.49 - 31.11 - 47.44 - 56.56 n/a n/a - 39.70 - 64.97 - 43.38 - 52.79 - 23.76 - 45.77 - 34.79 - 39.98 - 44.96 - 35.37
2,082,755 1,087,940 455,973 407,239 310,135 1,758,720 493,586 904,548 446,526 238,282 120,340
Newspaper revenues
2.10 Newspaper and magazine revenues come from three sources: copy sales revenue, display advertising and classified advertising. In the national press the main revenue streams are overwhelmingly sales revenue and display advertising: 52.6% from copy sales in quality press, 58.2% in popular press and only 27% in the regional press, where classified advertising makes
2002 daily figures from http://media.guardian.co.uk/presspublishing/tables/0,,811748,00.html; 2002 Sunday figures from http://media.guardian.co.uk/presspublishing/tables/0,,811755,00.html; 2012 figures from http://www.pressgazette.co.uk/abcs-three-national-dailies-increase-circulation-september
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up 41.4% of revenue. Both copy sales and display advertising revenue streams are under pressure. 2.11 Competition for display advertising spend is marked, with much advertising moving online. The Online Advertising Bureau stated that UK digital advertising expenditure grew 2.6% to 2.59 billion in the first half of 2012.10 In addition, advertising spend has historically declined when growth in the economy is slow, adding further pressures on newspaper revenues. More dramatically, print classified advertising has been particularly hard hit by the move to online. Online models have proved highly successful with buyers and sellers. Thus, revenues accrued through recruitment advertising have reduced from 150 million per year to 20 million per year, and there has been a similar decline in property advertising.11 Recruiters simply do not need to place print advertisements any more. Further, public sector advertising, once a source of considerable revenue for both regional and national press, has also largely moved online with significant implications for the revenues of newspaper businesses.12 The editors of Scottish, Welsh and Northern Irish newspapers who have given evidence said that advertising revenues were particularly important for the smaller circulation papers, and emphasised the impact of the loss of advertising from the public sector for those smaller papers.13 All of this means that newspapers face significant economic pressures. However, whilst newspapers revenues have fallen for most publishing groups in the last five years, the different ownership and operation structures within the industry mean that the impact of these pressures is different. Table C1.2 below shows the revenues of major newspaper groups in 2012 and the change from 2005 to 2012.
C
2.12
2.13
2.14
10 11
PWC adspend study, http://www.iabuk.net/research/library/2012-h1-digital-adspend-results pp83-84, lines 11-3, Sly Bailey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-16-January-20121.pdf 12 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Spencer-Feeney.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Mike-Gilson.pdf; http:// www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-McLellan.pdf; http://www. levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Jonathan-Russell.pdf 13 pp99-100, Spencer Feeney, Mike Gilson, John McLellan and Jonathan Russell, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/01/Transcript-of-Morning-Hearing-18-January-2012.pdf
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Chapter 1 | Context
Table C1.2: Newspaper revenues

publisher newspaper division National newspapers News International* (News Corporation) Associated (DMGT) Trinity Mirror national division FT Group (Pearson)** Telegraph Media Group Guardian News and Media (GMG) Express Newspapers (Northern & Shell) regional newspapers Johnston Press Trinity Mirror regional division Northcliffe (DMGT) Newsquest (Gannett) FY 2010 revenues (m) 1,047 850 430 403 324 221 214 398 331 294 344 2005-10 change in revenues (%) -2% -3% -14% 21% 0% -5% -26% -23% -48% -43% -53%
Notes: Unless otherwise stated, 2005-10 change in revenues is not like-for-like *News International includes News Group Newspapers Ltd and Times Newspapers Ltd **FT Group 2005-10 change like-for-like: 2005 revenue excl. IDC, reported in 2006 annual report TM regional division 2005-10 change like-for-like: 2010 revenues excl. GMG Regional Media Newsquest revenues converted to sterling using exchange rate stated in annual report [Source: Enders Analysis based on company reports]
2.15
Certainly there has been no structural like-for-like shift in advertising revenues for newspapers from print to online editions. Although the proportion of advertising online spend has grown at a considerable rate, those revenues are shared by a far greater number of businesses including micro bloggers and other online businesses. Although the internet enables highly personalised targeted advertising, for which advertisers will pay a premium, such revenues derived from advertising directed at specific types of user, so-called targeted or behavioural advertising, have not in any way matched the decline in revenue from traditional sources. It is certainly telling and illustrative of the challenges faced by newspapers that the UKs most successful online newspapers, the MailOnline and the Guardian, have yet to find a way of converting this into substantial or comparable profit. This advertising is driven by the availability of vast quantities of data, both personal and more general, that users upload when they make online purchases, or through anonymised tracking of individuals ISPs and other providers when users browse the internet. This model has served the internet industry and users well to a point. However, recent changes to the law restricting the use of cookies and other tracking technologies without the informed consent of the user may further dilute the potential revenues that a newspaper or other business may derive from this source. The Inquiry has been told that circulation may be boosted temporarily, through price cutting or promotional campaigns, but these do not generally have a long term impact and circulation levels tend to fall back once the promotional activity is discontinued.14
2.16
2.17
14
pp7-8, paras 26-27, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-VijayVaghela.pdf
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PART C | The Press
Impact of pressures on business models

2.18 The Inquiry has heard different interpretations of the impact of these economic pressures on newspaper business models. It is common ground that falling revenues and the increased need to produce copy 24 hours a day has resulted in fewer journalists having to do more work. Editors have argued that the financial levels affect staffing levels but that this simply means that journalists work harder15 and that there is no reduction in the quality of journalism. The Inquiry has been told that the economic difficulties have not affected training of journalists.16 Others17 have suggested that the effect of journalists having to produce more stories in less time and with less resource is that material is not as thoroughly checked as it once was, press releases are reproduced uncritically and stories are recycled around the media with little development or additional checking. The impact on regional newspapers has been more severe, with a number of titles merging or closing. For example, the Trinity Mirror portfolio of regional newspapers has fallen from 160 titles to 140.18 Across the press the same challenge faces all titles in respect of how to make money from content online in a world where advertising revenues and revenues from physical circulation continue to decline,19 whilst readership online is growing. Two UK daily titles (the Financial Times and the Times) operate behind paywalls but this is not necessarily seen as a solution that can work across the industry. That is not to say that, as is clear from Chapter 2 in this Part, there are not parts of the UK press that are profitable and, in some cases, highly profitable.
2.19
C
2.20
2.21
2.22
2.23
15
Richard Wallace, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning-Hearing16-January-2012.pdf 16 p61, lines 1-11, Richard Wallace, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-16-January-2012.pdf 17 p85, lines 10-15, Richard Peppiatt, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-29-November-2011.pdf 18 p75, lines 2-5, Sly Bailey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-AfternoonHearing-16-January-20121.pdf 19 pp99-100, Spencer Feeney, Mike Gilson, John McLellan and Jonathan Russell, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/01/Transcript-of-Morning-Hearing-18-January-2012.pdf; pp59-60, Peter Charlton, Maria McGeoghan, Nigel Pickover, Noel Doran, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Afternoon-Hearing-18-January-2012.pdf
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Chapter 2 the press: history, governanCe struCtures and finanCes

1. Introduction
1.1 In this Chapter I examine the history, governance structures and finances of the major British newspapers. I will look first and in some detail at those newspapers owned by News International (NI), and ultimately by the parent company in the US, News Corporation.1 This is fitting given the central role of the News of the World (NoTW) in the events that led to establishment of this Inquiry, as well as the extraordinary influence that Rupert Murdoch has exercised over the development of the press in Britain, since he purchased NoTW newspaper in 1969. I will then look at the history, governance structures and finances of the other major British newspaper publishing houses, before turning albeit briefly to the regional press and the magazine industry.
2. News Corporation
Group history and context
2.1 News Corporation (News Corp) was founded in 1979 as a holding company for Mr Murdochs Australian newspaper business, News Ltd, to manage News Ltds growing portfolio of international assets particularly in the United Kingdom and the US.2 Mr Murdoch is both the Chairman and Chief Executive of News Corp3 which, as of 2009, is the worlds second largest media conglomerate in terms of revenue, and the third largest in terms of entertainment. Although News Corp was initially incorporated in South Australia, reflecting the Australian origins of the business, in November 2004 the company was re-incorporated under Delaware Corporation Law. News Corp is now listed on the NASDAQ and has secondary listings on the Australian Securities Exchange. News Corp now has global reach, and in addition to its holdings in its traditional British, American and Australian newspaper markets, it has substantial operations in India, Italy, Germany, Brazil and Hong Kong that span both traditional media as well as new media, telecommunications and the internet.4
2.2
Group governance
2.3 News Corp is headquartered in New York. The News Corp Board of Directors is made up 17 directors and includes those in executive and non-executive capacities.5 The Board sets the strategic direction for News Corp and its subsidiaries and is responsible for the corporate governance of the company. These processes are published on the News Corp website.6 In
The Times is published by Times Newspapers Ltd and the other titles by News Group Newspapers Ltd. The corporate structures are examined below. 2 Page, B, The Murdoch Archipelago, p10 3 http://www.newscorp.com/investor.html 4 ibid 5 http://www.newscorp.com/investor/annual_reports.html 6 ibid
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June 2012 News Corp announced that it intends to pursue the separation of its publishing and media and entertainment businesses into two distinct publicly traded companies. Rupert Murdoch would remain Chairman of both companies.7 2.4 The Murdoch family owns a 29% stake in the company. As these shares are voting shares, Mr Murdoch exercises effective control of the company. Prince Alwaleed bin Talal al-Saud of Saudi Arabia owns 7% of News Corps shares through his Kingdom Holding Company, making him the second largest shareholder in News Corp.
C
2.5
The Management and Standards Committee

News Corp established the Management and Standards Committee (MSC) to take responsibility for all matters in relation to phone hacking at NoTW, payments to the police and all other related issues at NI.8 The MSC is autonomous from News Corp and NI.9 It works to ensure full co-operation with all investigations into these issues, including this Inquiry, the police inquiries, civil proceedings and Parliamentary hearings. The MSC is authorised to conduct internal investigations to fulfil its responsibilities in relation to NIs papers: The Sun, The Times and The Sunday Times. It has power to direct NI staff to cooperate fully with all external and internal investigations, and to preserve, obtain and disclose appropriate documents. An important part of the MSC role is to recommend and oversee the implementation of new policies and systems to ensure that editorial practices at NIs titles meet the highest standards.10 The MSCs role is to ensure that NIs titles are underpinned by a robust governance, compliance and legal structure.11 The MSC originally reported to Joel Klein, Executive Vice-President and a director of News Corp,12 but at the time of writing, reports to Gerson Zweifach, Senior Executive Vice-President and Group General Counsel of News Corp, who in turn report to the independent directors on the News Corp Board through Professor Viet Dinh, an independent Director on the News Corp Board of Directors.13 The role of the MSC is addressed in more detail later in the report.14
2.6
2.7
2.8
2.9
Financial results
2.10 News Corp estimates its global assets to be worth some $61.98bn.15 Its financial results reflect the global scale of the organisation. In 2010, it reported a turnover $32.78bn, an 8% increase on its turnover for 2009.16 In 2011, this had risen further to 33.41bn. News Corp posted profits of $2.54bn in 2010 and $2.99bn in 2011.17
http://www.newscorp.com/news/news_535.html http://www.newscorp.com/corp_gov/MSC.html 9 ibid 10 ibid 11 ibid 12 ibid 13 http://www.newscorp.com/corp_gov/MSC_reporting_structure.html 14 Part E, Chapter 5 15 http://www.newscorp.com/investor/annual_reports.html 16 ibid 17 ibid
8
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Chapter 2 | The Press: History, Governance Structures and Finances
2.11
Although newspapers were once central to the News Corp business model this is no longer the case. In the 2009/2010 financial year, newspapers accounted for just 13% of News Corps overall profit.18 By contrast, in 2001, newspapers had contributed to 30% of News Corps total profits.19 In 2010 New Corps television businesses provided around 56% percent of the companys total profit. The closure of NoTW in July 2011 affected the profitability of the companys newspaper and publishing businesses. Profit fell 38%, to $110 million. The company reported a $91 million pre-tax charge related to its British newspaper business.
2.12
Annual conference
2.13 In addition to its media interests, News Corp also plays a role in public policy discussion, organising and hosting an annual Management Conference, the aim of which is to provide a forum for the discussion of media issues and policy in relation to world events. The conference is not only for News Corps senior executives and journalists but also for policy makers and other interested parties. The conference has been held in Cancun, Mexico, and Hayman Island, Australia, as well as Pebble Beach, California. The News Corp Management Conference is a private event, and in so far as can be established, no records of the meetings are made available. However, details of the 2006 event in Pebble Beach were leaked together with an agenda to the Los Angeles Times.20 According to that newspaper, agenda items ranged from discussions on Europe, to broadcasting and new media and terrorism. Speakers have included Rupert Murdoch, the Governor of California, Arnold Schwarzenegger, Tony Blair, ex-President Bill Clinton, Al Gore, Senator John McCain and the Israeli President, Shimon Peres.21
2.14
News International
2.15 News Corporations UK newspaper interests are held by its wholly-owned subsidiary, NI,22 which is the parent company both of Times Newspapers Holdings Ltd (TNHL) and of News Group Newspapers Limited (NGN). Times Newspapers Limited (TNL), the publisher of The Times and The Sunday Times, is a subsidiary of TNHL. NGN is the publisher of The Sun and The Sun on Sunday, and formerly published NoTW.23 In 1987, NI bought the Today newspaper, a mid-market tabloid that had launched in 1986 and pioneered the use of colour printing and computerised editing. However, the title struggled financially and did not make a profit. It was closed on 17 November 1995. In September 2006, NI launched The London Paper. This was the first title to have been launched rather than bought by the UK subsidiary. The London Paper, an evening freesheet published fives times each week, was distributed at bus and railway stations across London. In September 2009 the paper closed in the face of intense competition from the other free titles distributed in London, including the Metro, the London Lite and the Evening Standard.
2.16
2.17
18 19
http://www.economist.com/node/18958553 ibid 20 http://articles.latimes.com/2006/jul/28/business/fi-fox28 21 ibid 22 http://www.newscorp.com/investor/stock_quotes.html 23 p1, para 1.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ThomasMockridge.pdf
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2.18
The Sun considers itself a family newspaper. Mr Murdoch made clear his view in an interview with the title ahead of the launch of The Sun on Sunday that the new Sunday edition of the paper would be family orientated and ethical.24 Indeed, in his evidence to the Inquiry, the current editor of The Sun, Dominic Mohan, expressed his firmly held belief that The Sun is a powerful force for good,25 and cited the work undertaken by the paper to enable its poorest readers to afford holidays as well as its recent work in schools promoting science learning. The Sun also sees itself as a campaigning newspaper, championing causes it considers important to its readers26 such as the Help for Heroes campaign.27 Mr Murdoch described NoTW as:28 a campaigning newspaper. certainly it was interested in celebrities, just as the public is, and a much greater investment went into covering the weekend soccer.. Coverage of celebrities, yes. Salacious gossip? Meaning I take gossip as meaning unfounded stories about celebrities: no. I certainly hope not. James Murdoch described the brand of NoTW as:29 an investigative newspaper with exposes and the like, wasnt only concerned with celebrities and salacious gossip, but also uncovering real wrongdoing, scandals, campaigning and so on and so forth.
2.19
2.20
NI has described The Times as renowned for its ability to deliver accurate, intelligent and engaging information.30 Both The Times and The Sunday Times have a long and established a reputation for quality investigative journalism, particularly The Sunday Times Insight Team, which has been responsible for stories such as the exposure of the spy scandal relating to the MI6 agent Kim Philby, the scandal of Thalidomide, as well as more recent allegations of vote rigging at FIFA. News International history: News Group
2.21
NoTW was purchased by Rupert Murdoch in January 1969. The Sun, which had been launched by the International Publishing Corporation (IPC) in 1964, was acquired by Mr Murdoch in October 1969. The two newspapers were published as sister titles from that date until the closure of NoTW on 10 July 2011. At the time of its acquisition The Sun was almost bankrupt. Changes to content, and in particular the introduction of a far more irreverent and informal style, as well as changes to editorial policy and production methods, led to a dramatic turnaround in the newspapers fortunes.31 Within three years, The Sun newspaper was not only highly profitable, providing much of the necessary finance for further acquisitions elsewhere, but was successfully challenging the Daily Mirror as the UKs best selling newspaper.
24
http://www.thesun.co.uk/sol/homepage/news/4138209/Its-Sun-day-Were-launching-new-edition-of-Britains-No1newspaper.html 25 p52, lines 7-9, Dominic Mohan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-9-January-2012.pdf 26 ibid 27 p52, lines 7-22, Dominic Mohan, ibid 28 p44, lines 21-21, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-26-April-2012.pdf 29 p10, lines 12-16, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-24-April-2012.pdf 30 http://www.newscorp.com/management/newsint.html 31 Snoddy, R, The Good, the Bad, and the Unacceptable: The hard news about the British press, p124
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2.22
Mr Murdoch introduced a style and understanding of journalism that he had developed at the Adelaide News. In an otherwise staid newspaper market, the re-launched The Sun and NoTW were irreverent and anti-establishment. This new approach to tabloid journalism was well illustrated in the publication in NoTW of Christine Keelers memoir of the 1963 Profumo affair. Indeed, some commentators have suggested this was a, if not the, defining moment in the development of a journalistic ethos at what was to become NI.32 The Keeler article certainly boosted sales, although Mr Murdoch received much criticism from his competitors of reporting old news, especially of such a nature.33 The Sun under Mr Murdoch set out to appeal to a broader cross-section of society. Innovations in content intended to appeal to a mass market included the introduction of television coverage, and the advent of the first Page 3 girl in 1970. This marked the first anniversary of the re-launched tabloid and quickly became a controversial trademark of the paper, albeit copied by its competitors. During this period, the circulation of The Sun increased from 1 million in 1969 to over 3.8 million in 1980, peaking at 4 million in 1978 under Sir Larry Lambs editorship.34 Mr Murdoch was not only responsible for the introduction of a new approach to tabloid journalism at both The Sun and NoTW, he also introduced important changes to methods of production to all his titles. Although these changes were criticised by some within the industry at the time and, indeed, led to a bitter and protracted dispute with both the print unions and the National Union of Journalists (NUJ), commentators have credited these changes, which have since been adopted by all newspapers, with ensuring the economic viability of the British newspaper industry. NIs move to Wapping and decision to face down the print unions, had strong support in Government. Indeed, throughout the strike in the mid-1980s, NI was able to maintain almost full production and distribution capabilities as well as a complement of leading journalists. The company was therefore content to allow the dispute to run its course. With many thousands of workers having gone without pay for over a year, the strike eventually collapsed on 5 February 1987. It has been suggested that the defeat of the unions would not have been possible without the support of the Conservative Government of the time.35 Irrespective of any political support, the changes implemented by Mr Murdoch set a precedent: within two years of the conclusion of the strike, most of the national papers had followed NIs lead, left Fleet Street, and changed their printing practices. Although both The Sun and NI are conservative in outlook, the political loyalties of neither paper have been set in stone. Some commentators have argued that so influential has the tabloid become that it is able to decide the outcome of elections.36 Certainly, that was the clear inference of The Suns front page headline following the Conservative election victory in April 1992, It was The Sun wot won it.37 Although The Sun and NoTW backed the Labour Party in the 1997, 2001 and 2005 general elections, the relationship between the New Labour Government and the NI titles had grown
2.23
2.24
2.25
2.26
2.27
2.28
32 33
Page, B, The Murdoch Archipelago, p102 ibid, p103 34 Audit Bureau of Circulations, cited in Page, B, The Murdoch Archipelago, p120 35 Snoddy, R, The Good, the Bad, and the Unacceptable: The hard news about the British press, pp124-128 36 ibid, p14 37 Discussed in detail in Part I Chapter 3
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increasingly strained. It is reported that ahead of the 2005 election, Mr Murdoch had said that Tony Blair deserved one last chance.38 In late September 2009, on the day of Gordon Browns keynote speech to the Labour Party Conference, The Sun announced that it would support the Conservative Party in the 2010 election. The detail of the relationship between Mr Murdoch and politicians, including how that influenced the editorial stance of his newspapers, is considered in detail in Part I 2.29
C
2.30
The Sun now has the largest circulation of any daily newspaper in the UK, selling approximately 2.7 million copies each day. The paper claims a readership of almost 9 million.39 NoTW, at its time of closure in July 2011 had a circulation of just under 2.7 million and represented 28% of the Sunday tabloid market.40 The first edition of The Sun on Sunday achieved sales of 3.2 million but since has dropped to a level of sales similar to that of NoTW before its closure, at 2.6 million.41 News International history: Times Newspapers Holdings Limited
2.31
TNHL was established in 1967 when the Thomson Corporation purchased The Times from the Astor family and merged it with The Sunday Times. The Times is the oldest of the major UK national newspapers and was first published in 1785. It has been published continuously ever since, save for a ten month period in the late 1970s. Faced with escalating productions costs and a commercial model that was under increasing threat, the Thomson Organisation decided to put both titles up for sale at the end of 1980. NI reached an agreement with Thomson to acquire those papers. Under Section 58 of the Fair Trading Act 1973 any newspaper merger at the time required the consent of the Secretary of State for Trade. Further, and subject to two exceptions, the Secretary of State was prohibited from giving his consent to such a merger unless he had first received a report from the Monopolies and Mergers Commission (MMC). The Thomson Organisation imposed deadlines beyond which they said they would no longer support The Times (14 March 1981) or The Sunday Times (8 March 1981). The then Secretary of State, John Biffen, told Parliament that this factor, taken together with the financial figures for the two newspapers, convinced him that neither title was economic as a going concern and that to require an MMC reference would risk the closure of both titles, the loss of 4,000 jobs and the possibility of the permanent closure of The Times.42 He therefore gave his consent for the merger to go ahead, but he also imposed eight conditions:43 First, the newspapers are to be published as separate newspapers. Second, future disposals are to be subject to the consent of a majority of the independent national directors of Times Newspapers Holdings Ltd.
2.32
2.33
38
ABC circulation figures February 2012, http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=48913 &c=1 39 http://www.guardian.co.uk/media/table/2012/feb/10/abcs-national-newspapers 40 ABC circulation figures July 2011, http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=48913&c=1 41 ABC circulation figures February 2012, http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=48913 &c=1 42 HC Hansard 27 January 1981, Volume 997, Column 789, http://hansard.millbanksystems.com/commons/1981/ jan/27/times-newspapers 43 HC Hansard 27 January 1981, Volume 997, Column 790, ibid
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Third, the number of these independent directors is to be increased from four to six and the appointment of any independent national directors in the future is not to be made without the approval of the existing independent national directors. Fourth, on editorial independence, the editors shall not be appointed or dismissed without the approval of the majority of the independent national directors. Fifth, the editor of each newspaper shall retain control over any political comment published in his newspaper and, in particular, shall not be subject to any restraint or inhibition in expressing opinion or in reporting news that might directly or indirectly conflict with the opinions or interests of any of the newspaper proprietors. Sixth, instructions to journalists shall be given only by the editor or those to whom he has delegated authority. Seventh, subject only to any annual budget for editorial space and expenditure the editor shall retain control over the appointment, disposition and dismissal of journalists on his newspaper and of all other content of his newspaper. Eighth, disputes between the editors and directors of the companies are to be settled by the independent national directors. 2.34 2.35 Those conditions are included within the Articles of Association of Times Holdings Limited and still bind the company today. The decision of the Secretary of State was controversial. The Labour MP, John Smith, called an emergency debate on the decision on the day that the Secretary of States consent was announced. The Opposition, and indeed some Government backbenchers,44 argued that the threat of closure was a device concocted by Thomson and colluded in by NI designed to force the Governments hand. There were also allegations that the Prime Minister had influenced the Secretary of States decision as a favour to Rupert Murdoch. For example, Geoffrey Robertson MP said:45 In his first major decision the Right Hon. Gentleman has failed to stand up to the Prime Minister. That is the reality. I shall examine the facts and show why later. This is a straightforward pay-off for services rendered by The Sun. If it is not, let us see the facts and figures to show that I am wrong. 2.36 Despite this opposition the deal had the support of the editorial staff and the unions, and went ahead. The purchase gave NI more than a 25% share of daily newspaper circulation and something over 30% of the Sunday market. Although The Times has a reputation for taking a generally conservative approach to matters of public policy and social issues, its support for political parties at general elections has varied. Indeed, on occasion The Times and The Sunday Times have backed different parties. Most recently, The Times supported the Labour Party in 1997, 2001 and 2005 and the Conservatives in 2010. By contrast, The Sunday Times supported the Conservative Party at each of those elections.46 In February 2012 The Times had a circulation of 397,549. Although this is the second highest broadsheet circulation, it is some way behind the Daily Telegraph, and accounted for only 4.3% of national daily newspaper circulation in that month. By contrast, its sister paper The Sunday
2.37
2.38
44 45
HC Hansard 27 January 1981, Volume 997, Column 794, ibid HC Hansard 27 January 1981, Volume 997, Column 806 onwards, ibid 46 http://www.guardian.co.uk/news/datablog/2010/may/04/general-election-newspaper-support
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PART C | The Press
Times had a circulation of 939,395 in February 2012, reflecting its different character. This is by some margin the highest national Sunday broadsheet circulation (the Sunday Telegraph has a circulation of just over 460,000), and gives The Sunday Times the fourth highest national Sunday circulation, accounting for nearly 8.5% of the national Sunday market.47 2.39 Unlike The Sun, The Times and The Sunday Times have put their online content behind paywalls. This approach is not usual for UK newspapers, and The Times has the smallest online audience of any of the major UK newspapers: as of March 2012 it was reported to have only 119,000 subscribers.48 This compares poorly to the Guardians website which attracts upwards of three million unique users each day and the Daily Mail website which receives in excess of 70 million hits each day. News International governance structures 2.40 The NI Board now meets monthly to address issues of significance. The Inquiry was told that in October 2010 the Board included a News Corp representative and that a second would shortly be appointed.49 Subsequently, the Inquiry was informed that both Mr Murdoch and Janet Nova, Deputy Group General Counsel of News Corp, have stepped down from the NI board. Thomas Mockridge told the Inquiry that no NI executives sit on the News Corp Board:50 I am satisfied that notwithstanding these changes to the board, the appropriate oversight of the News International business is being maintained both at the local division and group levels and the board of directors of NI Group Limited continues to play a key role in ensuring the appropriate corporate governance standards of the company and its subsidiaries. 2.41 Mr Mockridge told the Inquiry the NI Board has undertaken a review of compliance since July 2011. He said:51 ... what we have sought to do is to update/refresh the whole range of compliance policies and in particular improve the communications of the compliance policies. My observation has been that even where an existing policy is completely thorough and appropriate, if its not well communicated, then its much more difficult to expect people to comply with it. 2.42 The Inquiry has also been informed that the editors of The Times, The Sunday Times and The Sun will be required to attend these monthly NI Board meetings and report on performance and compliance.52 No information has been provided on past corporate governance practice at NI or governance procedures at NoTW.
47
ABC circulation figures February 2012, http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=48913 &c=1 48 http://www.guardian.co.uk/media/2012/feb/15/times-digital-subscribers-rise 49 p2, para 2.4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ThomasMockridge.pdf 50 p1, paras 2-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Fifth-Witness-Statement-of-TomMockridge.pdf 51 pp46-47, lines 22-9, Thomas Mockridge, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-17-January-2012.pdf 52 p7, para 3.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ThomasMockridge.pdf
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2.43
The Corporate Audit Department of News Corp provides assurance on the effectiveness of operational and financial controls through audits carried out on the basis of an assessment of significant risks to News Corp. In 2012 such audits were planned at NI in relation to, inter alia, advertising revenue, circulation revenue, compliance with the UK Bribery Act and NIs digital media operations.53 There is a separate Board for TNHL, which is covered by the undertakings given to the Secretary of State for Trade following the acquisition of the titles in 1981. The TNHL Board must comprise no more than 20 directors of whom at least six must be Independent National Directors. A majority of the Independent National Directors is required for the appointment and dismissal of the editors of either of the titles or the disposal by NI of the titles. The TNHL Board meets quarterly54 and the editors of The Times and The Sunday Times attend and are expected to account for editorial coverage to the Board.55 The Independent Directors meet regularly with the Editor of The Times both at board meetings of TNHL and separately to discuss any on-going issues at the paper,56 and with the Editor of The Sunday Times.57 There are separate boards for Times Newspapers, News Group Newspapers and NI Trading, which meet as required.58 News Internationals financial results
2.44
2.45
NI is now only a small but still important part of News Corps global business.59 Although The Sun is highly profitable, the relative profitability of the group has been in decline for a number of years. News Group News posted pre-tax profits of 88.6m for the 2009/2010 financial year, as well as an increase in revenue from 639m to 654m.60 By contrast, The Times and The Sunday Times have run at a loss for a number of years and have not made a profit since 2001.61 However, the decline in revenues at TNHL appears to have been halted though not fully reversed. TNHL reported a pre-tax loss of 45m for the financial year 2009/2010 compared with a pre-tax loss of 87.7m for the 2008-2009 financial year.62 Despite the strong performance by NGN, NI recorded a pre-tax loss of 78.5m for 2009/2010, compared with a profit of 34.7m for the 2009/2009 financial year. Much of this loss was attributable to the costs of writing down a 45m loan made to its free title, The London Paper, after the closure of that title in September 2009. Over the same period NIs salary bill has been reduced from 11.7m to 8.8m. However, overall staff costs at NI have increased from 16.7m to 19.4m as a consequence of increased share-based payments and a rise in pension costs.63
2.46
2.47
2.48
p5, para 2.10, ibid p3, para 2.7, ibid 55 p2, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-Witherow.pdf 56 pp1-3, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-JamesHarding.pdf 57 p2, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-Witherow.pdf 58 p3, para 2.7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ThomasMockridge.pdf 59 http://www.economist.com/node/18958553 60 http://www.guardian.co.uk/media/greenslade/2011/jan/15/newsinternational-rupert-murdoch 61 http://www.economist.com/node/18958553 62 http://www.guardian.co.uk/media/greenslade/2011/jan/15/newsinternational-rupert-murdoch 63 ibid
54
53
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PART C | The Press
News International editorial independence 2.49 The position on editorial independence differs across the NI titles. The Times and The Sunday Times are guaranteed editorial independence pursuant to the 1981 undertakings. By contrast, Mr Murdoch takes an active interest in the editorial direction of the NGN titles, though the position in relation to The Sun and NoTW was far from identical. He told the Inquiry that:64 I never much interfere with the News of the World, Im sorry to say,
but that he would exercise editorial control on major issues, such as the support for parties at a general election or policy on Europe.65 In contrast, he said of The Sun:66 if any politician wanted my opinions on major matters, they only had to read the editorials in the Sun.
News International financial management

2.50 The News Corp Corporate Audit Department provides a check on operations, financial reporting and compliance.67 In particular this departments audits cover the Editorial Commissioning System, Casual Management System (by which casual staff are paid), expenses system and NewsPeople.68 The accounts of NI, NGN and TNHL are audited by Ernst & Young.69 On account of its US listing, NI is required to comply with the financial certification requirements of the Sarbanes-Oxley Act 2002.70 The Editorial Finance Director is responsible for the accurate reporting of the editorial numbers. A Corporate Reporting Team and a Financial Accounting Team ensure that NI complies with the relevant accounting standards. A Taxation Team ensures that tax compliance is followed.71 Day to day legal and policy compliance is a matter for editors, delegated to deputy editors and senior sub editors.72 Financial matters are dealt with by the managing editors.73 Payments to third parties for editorial content must be authorised by the relevant desk head and managing editor, apart from in the case of NoTW where a desk head could alone authorise payments up to 2,000.74 Payments or annual entitlements of over 50,000 require authorisation from the Chief Financial Officer.75 Cash payments, without limit, can be made to third parties subject to prior approval by the managing editor and the editor or deputy editor.76 This has been strengthened since the introduction of the Bribery Act 2010, before which authorisation for
2.51
2.52
64
p39, lines 8-9, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-25-April-2012.pdf 65 pp38-39, lines 23-9, Rupert Murdoch, ibid 66 p88, lines 23-25, Rupert Murdoch, ibid 67 p5, para 2.10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ThomasMockridge.pdf 68 pp7-8, para 9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-SusanPanuccio.pdf 69 ibid 70 ibid 71 ibid 72 p5, para 2.12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ThomasMockridge.pdf 73 p6, para 2.13, ibid 74 p2, para 5.1.1(ii), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-SusanPanuccio.pdf 75 p3, para 5.1.1(iii), ibid 76 p4, para 5.1.3(iii), ibid
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cash payments was only required from the managing editor or deputy managing editor.77 In addition the journalist who requested the cash has to sign a book saying that they have had training in the Bribery Act and will comply with NIs bribery policy.78 2.53 Expenses can be claimed through an online system, subject to authorisations from the Expense Administration Team and the Managing Editors office. Expenses where a receipt is not provided can be paid at the authorisers discretion.79 The Times rarely pays for stories, with the exception of book serialisation deals with publishers.80 The Sunday Times pays fees to external sources of information, including local news agencies and freelance journalists.81 The Sun makes payments to a range of external sources of information, including press agencies, tipsters and regular informants.82 News International policies and procedures 2.55 News Corp has a number of relevant policies that apply to its (and hence all NI) staff: Standards of Business Conduct, Global Anti-Bribery and Anti-Corruption Policy and the Record Retention, Policy.83 In addition there are a number of NI policies that apply to all NI staff, including: the PCC Editors Code, a Contracts Policy, an Approvals Authority Policy, an Expenses Policy, the Disciplinary and Dismissal Procedure, a Conflicts of Interest Policy and Data Protection Policies.84 Following the events at NoTW many of these policies are being or have been revised, leading to the addition of a Whistleblowing Policy and helpline,85 a Payment Policy86 which sets out the procedure which must be followed in order for journalists to pay sources for stories, a Workplace Conduct Policy87 and an NI Anti-Bribery policy which supplements the News Corp Global Anti-Bribery and Corruption policy.88 In addition NI has created a new role of Chief Compliance Officer, to be responsible for ensuring company-wide and title-wide compliance with the law and company policies89 and reporting directly to the CEO. The compliance officer has been tasked with reviewing and, where necessary updating, all NI policies, working closely with the in-house legal teams and the managing editors.90
2.54
2.56
pp8-9, para 12, ibid p3, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-DominicMohan.pdf 79 p6, para 5.2.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-SusanPanuccio.pdf 80 pp4-5, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-JamesHarding.pdf 81 p10, para 37, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-JohnWitherow.pdf 82 pp5-6, para 21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-DominicMohan.pdf; p7, para 27, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-ofGordon-Smart.pdf 83 pp3-4, para 2.8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ThomasMockridge.pdf 84 ibid 85 p4, para 2.8.4, ibid 86 ibid 87 ibid 88 p3, para 2.8, ibid 89 p4, para 2.9, ibid 90 ibid
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PART C | The Press
2.57
All new employment contracts will require compliance with company policies and, in the case of reporters or journalists, with the PCC Code, and existing contracts will be revised to include these provisions where they are not already there,91 although the Inquiry was told that for journalists with The Times, The Sunday Times and The Sun compliance with the PCC code is already a contractual requirement.92 The Sunday Times is also drawing up formal understandings with freelancers to require them to abide by the law and the PCC Code.93 Until recently NI had no procedures governing the employment of private investigators. New rules are being introduced which make the engagement of a private investigator subject to approval by the Chief Executive.94 At The Sunday Times the rules on the use of subterfuge have been revised, with prior approval now required from the legal team, the editor and the managing editor,95 and discussions as well as any legal advice are to be documented.96 Historically, in the NoTW, private investigators were employed by the news desk to provide various services, including surveillance, supporting undercover investigations and provisions of data.97 Evidence has been provided that the news desk, rather than reporters, instructed these private investigators.98 News International management structures and processes
2.58
2.59
This section provides a brief overview of the management structures and day-to-day working practices at NI. The NI Executive Management Team (consisting of the heads of NIs various divisions, the three editors and the CEO) meets weekly to discuss day to day business issues and to draw the CEOs attention to issues of significance.99 At title level the three editors have ultimate responsibility for ensuring that their staff behave lawfully, professionally and ethically.100 At The Times, the heads of each section (e.g. business editor, head of news) report to the editor, who is assisted by the deputy editor, managing editor and executive editors. The vast majority of reporters are staff, and are on site daily, discussing news stories with their editors. Journalists are expected to discuss and explain lines of enquiry and methods of obtaining a story. There is an emphasis on transparency and continuous debate and discussion.101 At The Sunday Times the managing editor (News) is in overall charge of news coverage, and the news editor and foreign editor report to him. Difficult ethical or legal questions are discussed with the editor and the in-house legal team. The system operates on trust but with stringent control by the news desk, managing editor (News) and other departmental heads.102
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p8, para 6.1.7, ibid p2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-James-Harding. pdf; p2, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-JohnWitherow.pdf 93 p3, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-Witherow.pdf 94 p8, para 6.1.6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ThomasMockridge.pdf 95 p3, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-Witherow.pdf 96 p9, para 32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Pia-Sarma.pdf 97 p5, para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-MazherMahmood.pdf 98 p5, para 19, ibid 99 p5, para 2.11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ThomasMockridge.pdf 100 p5, para 2.12, ibid 101 p2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-James-Harding.pdf 102 p2, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-Witherow.pdf
92
91
110
2.62
At The Sun there is a daily news conference chaired by the editor at which proposed stories are discussed. The editor is responsible for ensuring that The Suns corporate governance system works and is adhered to. Day to day issues of corporate governance are delegated to the managing editor.103 News International incentives
2.63
Staff on The Sun are paid bonuses depending on personal performance, including the stories that the individual has produced.104 NoTW ran a monthly merit scheme with awards being in the region of 500.105 News International oversight by readers
2.64
The Times has a feedback editor who acts as an ombudsman, with a weekly column airing readers concerns.106 You, the editor invites readers to give their views on the previous days paper.107 At The Sunday Times the editor has appointed the associate editor as ombudsman to take an independent view of any complaint and recommend a correction and apology or defend the newspaper as appropriate.108
BSkyB: history and context

2.65 The detail of News Corps ownership of satellite television broadcaster BSkyB is dealt with in detail in the context of its recent bid for full ownership of BSkyB.109 However, at this stage I examine the early involvement of News Corp in satellite broadcasting in the UK. NI acquired 65% of the struggling Satellite Television Ltd in 1984 for a nominal 1 and relaunched the company as the Sky Channel. The company continued to be loss making, losing 10m in 1987. Problems with the satellite technology meant that it was primarily a cable channel in the UK until 1989, when it moved to the newly launched Astra Satellite, based in Luxembourg, which made reception in the UK much easier, and its four channels were marketed primarily to the UK. Until 1990 it was the only satellite serving the UK. The Independent Broadcasting Authority (IBA) awarded a DBS (Direct Broadcasting via Satellite) service licence to British Satellite Broadcasting (BSB) in late 1988. BSB was required by its licence to use a different technology to that then successfully in use by Sky, and was bedevilled by technical problems, not being able to launch until March 1990. The BBC had also proposed its own satellite service, going as far as signing a heads of agreement on the construction of two satellites in March 1986, but this service never launched.110 This meant that the two satellite services being marketed to the UK ran on different technical standards and needed different dishes (and different receivers) so that they were placed in direct competition with each other for customers who would only be able to receive one service or the other.
2.66
2.67
p4, para 15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-DominicMohan.pdf 104 p5, para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Gordon-Smart.pdf 105 p4, para 15, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-MazherMahmood.pdf 106 p2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-James-Harding.pdf 107 ibid 108 p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-Witherow.pdf 109 See Part I Chapter 6 110 http://www.bbceng.info/Eng_Inf/EngInf_12.pdf
103
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PART C | The Press
2.68
In 1989 the Broadcasting Bill was introduced to Parliament, which contained provisions relating to the licensing of satellite services. The Bill placed a number of licence conditions (impartiality and accuracy of news; not offending against good taste or decency; not inciting crime or disorder; and not offending against public feeling) on BSB, but not on Sky. During debate on the Bill amendments were proposed to extend cross media ownership restrictions to the holders of a domestic or non domestic satellite service.111 In practical terms this would have required NI to divest the Sky Channel, but might also have had an implication for other publishers who held stakes in BSB. These amendments were defeated and the Act became law without any cross media ownership provisions affecting the holders of satellite broadcast licences. In November 1990, within days of the Broadcasting Act 1990 receiving Royal Assent but before the regulatory changes had taken effect, it was announced that BSB and Sky were going to merge. The Home Office was formally notified of the merger on 2 November 1990, with a formal public announcement being made by the two companies, and the merger taking place, on 3 November, resulting in the creation of BSkyB. At the time, the merger was covered by the Broadcasting Act 1981, under which BSBs direct broadcasting satellite service was provided under a contract with the International Broadcasting Authority (IBA), the regulator at the time. Under the 1981 Act an IBA contract for satellite broadcasting could be ended or suspended by the IBA or the Secretary of State if a newspaper proprietor had an interest in a contractor and the existence of those shareholdings has led, or is leading to results which are contrary to the public interest. The IBA was not informed of the merger in advance of it taking place.112 Under the terms of BSBs contract with the IBA it was obliged to get the approval of the regulator for any merger. That approval was not sought in advance. In the event this proved immaterial as the merged company then broadcast solely from the Astra satellite, thus removing the need for an IBA licence.113 The merger also took the newly formed company out of the full licensing regime that the 1990 Act would have imposed on BSB as a domestic satellite service. For over a decade BSkyB provided the only satellite broadcasting service directed primarily at UK viewers. The service was available only with subscription, and with a combination of strong marketing and exclusive programming the proportion of households with Sky subscriptions grew from the extremely low levels in 1990 to nearly six million in 2002, and over ten million in 2011. The BBC moved to make its channels available free to air from satellite in 2003 but, as they were the only channels being broadcast from the satellite without encryption and therefore free to view, take up was limited. Over subsequent years ITV and Channel 5 joined the BBC in offering free to air satellite broadcasts, and Sky added a freesat from Sky offer which allows consumers to take free to air satellite services from Sky. BSkyB now competes against both free to air digital terrestrial and satellite services and subscription based services via cable. Increasingly there is additional competition from on demand services provided over broadband.
2.69
C
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2.71
2.72
HL Hansard, 09 October 1990, Volume 522, Column 169, http://hansard.millbanksystems.com/lords/1990/oct/09/ broadcasting-bill 112 HL Hansard, 12 November 1990, Volume 523, Column 111, http://hansard.millbanksystems.com/lords/1990/ nov/12/satellite-broadcasting 113 HC Hansard, 12 November 1990, Volume 180, Column 350, http://hansard.millbanksystems.com/commons/1990/ nov/12/rights-freedoms-and-responsibilities
111
112
2.73
BSkyB is now a significant part of News Corps direct satellite broadcasting business, which consists of the whole of SKY Italia, which now has 5 million subscribers, 39.14% of BSkyB, and significant holdings in Sky Deutschland; TATA SKY in Asia and FOXTEL in Australia and New Zealand. Direct Satellite broadcasting is a relatively small part of News Corps activities, contributing only 11.5% of revenues in 2010. Financially BSkyB went from making a loss of over 700m in 1991 to delivering revenue of over 6.5 billion and profit of 1.073 billion in 2011.114 BSkyB is a Plc, traded on the London Stock Exchange, and News Corp owns 39.14% of the shares, which for practical purposes is a controlling shareholding. As of 30 September 2012, just over 10.5m subscribers held a subscription with BSkyB.115 BSkyB governance
2.74
The BSkyB Board consists of 14 Directors. The Chief Executive and Chief Financial Officer are the only executive Directors on the Board. There are nine independent non-executives, including the Chairman, three non-execs from News Corp and the Chief Executive of NI.116 James Murdoch was CEO of BSkyB from 2003 to 2007, then becoming non-executive Chairman. He stepped down as Chairman on 3 April 2012, saying: As attention continues to be paid to past events at News International, I am determined that the interests of BSkyB should not be undermined by matters outside the scope of this company. I am aware that my role as Chairman could become a lightening rod for BSkyB and I believe that my resignation will help ensure that there is no false conflation with events at a separate organisation.117 He retains a non-executive Director seat on the BSkyB Board. Sky News
2.75
2.76
Through its Sky News subsidiary, BskyB is both a broadcaster and provider of broadcast news content. Sky News broadcasts continuous rolling news, it is also a major provider of news services to commercial radio stations and has contracts to provide news content to Channel 4 and Channel 5.118 Like all other broadcast news providers, Sky News is bound by the terms of the Broadcasting Code. According to Ofcom, Sky News had in October 2010 an average weekly reach of some 24% of the wholesale news market, equivalent to 11.7m people per week, and 9.9% of the retail news market, or some 5m people per week.119 Ofcom has estimated that Sky News share of national and international news television viewing is around 6% of the news market.120 This is less than the 70% market share enjoyed by the BBC and the 18% by ITV.121 Sky News share of the radio market is, in comparison, much larger. In October 2010 it had an average weekly reach of 33.4m people.122
2.77
http://corporate.sky.com/documents/pdf/publications/2010/annual_report_2010?type=Finjan-Download&slot=00 000010&id=0000000F&location=0A64020F 115 http://corporate.sky.com/file.axd?pointerid=495797230af24663be7ae0cbafaa96d6 116 http://corporate.sky.com/about_sky/our_board_and_management/board 117 http://corporate.sky.com/media/press_releases/2012/bskyb_announces_board_changes 118 p30, para 4.14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/08/Exhibit-OFCOM34.pdf 119 p31, para 4.18, ibid 120 p30, para 4.15, ibid 121 p30, para 4.15, ibid 122 p8, para 1.23, ibid
114
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PART C | The Press
2.78
The Inquiry has heard some evidence on the corporate governance procedures operated at Sky News. This was provided by John Ryley, Head of News at Sky News. Mr Ryley was invited to give evidence to the Inquiry in relation to the unauthorised access of private email accounts by the journalist Gerard Tubbs in relation to two stories broadcast by Sky News in 2008 and 2010.123 Mr Ryley described in some detail the informal, but thorough processes in place at Sky News, and revealed that discussions around whether to pursue each story as well as decisions to authorise the unauthorised access of the email accounts in question were had and made, together with the taking of appropriate legal advice, at senior editorial levels. 124 Mr Ryley also said that as a consequence of the broadcast of the two stories in question, Sky News would look to introduce a formal process requiring, should the situation arise, formal written authorisation to be sought either from the head of news or the appropriate editor designate.125
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3. associated newspapers Ltd

History
3.1 The Daily Mail was launched in 1896 by Harold and Alfred Harmsworth. The company was incorporated as the Daily Mail & General Trust (DMGT) in 1922 and listed on the London stock exchange in 1933. Alfred Harmsworth (later Viscount Northcliffe) also founded the Daily Mirror in 1903 and took over the Observer in 1905, and The Times and The Sunday Times in 1908. Alfred Harmsworth died in 1922 without an heir, and control of DMGT passed to Harold Harmsworth, 1st Viscount Rothermere. The Times was sold to Viscount Astor in 1922. Viscount Rothermere disposed of his interest in the Daily Mirror in 1939. The Harmsworth family have remained owners of a substantial part of DMGT, and have continuously held the post of Chairman since the company was founded. Viscount Rothermere, the current owner of DMGT has given evidence to the Inquiry explaining the ethos and nature of the Mail Newspaper Group. Viscount Rothermere told the Inquiry that he firmly believes in taking pride in our products and services.126 He has said that DMGT has been built on his personal and family values, and that these values resonate and are replicated across the Mail group of newspapers.127 Viscount Rothermere also told the Inquiry that the popularity of the Daily Mail resides with the broad spectrum of news content that is offered by the title it provides something for everyone. In their initial written submission to the Inquiry, Associated News further explained this appeal in their description of the Daily Mail:128 in touch with the hearts and minds of Middle England. It reflects their concerns, hopes and lifestyle. Top of the agenda is reporting the news and asking the tough questions. With its campaigning stance, it is not afraid to expose the wrongs and shortcomings of people in power and with the vocal backing of its 5 million readers can be an effective force for change.
pp1-41, lines 16-8, John Ryley, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-23-April-20121.pdf 124 pp10-24, lines 14-9, John Ryley, ibid 125 p6, lines 10-21, John Ryley, ibid 126 p5, line 9, Viscount Rothermere, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-10-May-2012.pdf 127 p5, lines 3-14, Viscount Rothermere, ibid 128 http://www.mailconnected.co.uk/daily-mail
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3.3
The growth of the MailOnline, now the most popular newspaper website in the world, is also testament to the enduring appeal of the breadth of content, and in particular, celebrity news, offered by the Mail newspapers. Viscount Rothermere has described the MailOnline as having made a global footprint.129 The Mail has traditionally been politically conservative, supporting the Conservative Party at every general election since 1945.130 When giving evidence to the Inquiry, the current editor-in-chief, Paul Dacre, has said that the Daily Mail propounds the virtues of family life, of traditional matrimony and traditional values.131
3.4
The Mail Group today

3.5 DMGT today operates in over forty countries with a substantial portfolio of media and information companies providing content, information, analytics and events for businesses and consumers. In 2010 DMGTs revenue was nearly 2bn, with operating profit for the year running at 320m. DMGT employs 12,000 people and only just over a quarter of its profits come from its consumer facing businesses. DMGT comprises five divisions, only one of which, A&N Media, is involved with publishing newspapers. A&N Media includes Associated Newspapers, which publishes UK national newspapers. Associated Newspapers is highly profitable and employs over 4,300 staff. In 2010, it showed a substantial increase in profits, despite a small percentage fall in revenues.132 In the 2010/2011 financial year, Associated Newspapers had revenues of 850m, with an operating profit of 95m. This makes Associated Newspapers by some way the most successful newspaper concern in the UK in purely cash terms, to say nothing of the global reach of its online content. Northcliffe Media publishes ninety publications in the UK, including thirteen paid-for daily titles, two free daily titles, twenty-five paid-for weeklies, two weekly classified titles, eighteen monthly magazines and twenty-nine free weekly newspapers, in addition to a network of local websites that attracted five million unique users in September 2011. Northcliffe Media employs 2,531 people and through deduction from the Annual Report had in 2011 revenues of 248m and an operating loss of 2m. Associated Newspapers publishes the Daily Mail, the Mail on Sunday, the Metro and MailOnline. The Daily Mail has a circulation of just over 2m, which is the second highest national title circulation (after The Sun at 2.7m), and accounted for some 21% of national daily newspaper circulation in February 2012.133 The Metro, launched in 1999, is a free daily newspaper distributed in all major urban centres in the UK. It has a circulation of 1.38m and readership of 3.4m.134 The Mail on Sunday had a circulation of 1.8m in February 2012.135 Following the demise of News of the World this was the highest Sunday circulation, but was topped by the Sun on Sunday at its launch in February 2012 with a circulation of just over 3.2m. The February 2012 circulation figures for the Mail on Sunday account for just under 17% of national Sunday circulation.
3.6
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3.8
p3, line 23, Viscount Rothermere, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-10-May-2012.pdf 130 http://www.guardian.co.uk/news/datablog/2010/may/04/general-election-newspaper-support 131 p11, lines 14-21, Paul Dacre, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-6-February-20121.pdf 132 http://www.dmgtreports.com/2010/Business-Review/A--and--N-Media-Associated-Newspapers.php 133 ABC circulation figures February 2012, http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=48913 &c=1 134 http://www.associatednewspapers.co.uk/free-division 135 ABC circulation figures February 2012, http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=48913 &c=1
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3.9
The picture would be incomplete without some reference to the phenomenal growth of the MailOnline. The MailOnline is the most popular UK newspaper website and the most visited newspaper site in the world. The website receives on average a daily viewing audience of 5.6m people, of which 2.2m are readers in the UK and 1.7m in the USA.136 The content produced for the MailOnline is edited separately to that of the Daily Mail and the Mail on Sunday. However, the MailOnline reproduces much of the content published in the printed titles, in addition to its own, often US focused content.137
C
3.10
Governance structures
Associated News Limited publishes the Daily Mail, the Mail on Sunday, the Metro and MailOnline. Associated News Limited is part of A&N Media, which is, itself, part of DMGT, a publicly listed company quoted on the UK Stock Exchange.138 Our focus here is on A&N Media, and within that on Associated Newspapers. A&N Media also includes Northcliffe Media. Associated News Boards 3.11 The DMGT Board comprises nine executive directors and seven non-executives. The Chair and Chief Executive of A&N Media and the editor-in-chief of Associated Newspapers sit on the DMGT Board. The DMGT Risk Committee has responsibility for all group risk, including risk arising from editorial matters, including where appropriate recommending changes to existing practices.139 In addition the Information Security Committee includes within its remit responsibility for data protection in the company, including third party data held by the company.140 Associated News editorial independence 3.12 The DMGT Board are not involved in the editorial process, nor do they have any proprietorial influence on published content. The editors of Associated Newspapers have complete editorial independence over the content published in individual DMGT titles. The editors of Associated Newspapers report to the Chair of DMGT and the editor-in-chief, not to the commercial management of the organisation.141 The exception to this is the Editor of the MailOnline, who, in addition to reporting to the editor-in-chief on editorial issues, reports also to the Managing Director of Associated Newspapers on business matters.142 Mr Dacre, has given evidence as to the extent of this editorial freedom, and stressed that:143 just as I am given the freedom to edit by our management, I leave the individual editors of the titles it cant be any other way. You cant edit by remote control.
pp1-2, paras 4-7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-MartinClarke.pdf 137 p63, lines 20-22, Peter Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-11-January-2012.pdf 138 http://www.dmgt.co.uk/about-dmgt 139 p12, para 38, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Paul-Dacre. pdf; p2, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Kevin-Beaty. pdf 140 p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Kevin-Beaty.pdf 141 p3, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Peter-Wright. pdf 142 p5, lines 2-4, Martin Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-9-May-2012.pdf 143 p5, lines 2-5, Paul Dacre, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-AfternoonHearing-6-February-20121.pdf
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3.14
Mr Dacre has also suggested that the editorial freedom that he is granted as editor-in-chief of the Mail Group of newspaper by the DMGT Board is not necessarily something extended to newspaper editors working for other concerns. He has told the Inquiry that:144 I have turned down editorships of The Times and The Telegraph. One reason I did so is that at the Mail I enjoy total freedom from proprietorial and managerial interference, a freedom that is not necessarily found in other newspaper groups.
3.15
To this extent, he has suggested that the personal views of Mr Murdoch have influenced editorial decision making at the NI titles. Mr Dacre cited that newspaper groups coverage of the second Iraq conflict, which provided support for the Labour Governments decision to go to war in Iraq. He told the Inquiry his view that it would have been difficult, if not impossible, for the Labour Government to have proceeded with this decision, without the support received through Mr Murdochs newspapers.145 Associated News financial management
3.16
New systems of approving and recording payments to third parties were established at Associated Newspapers following the introduction of the Bribery Act 2010. These require: prior approval from department heads; documentation of the payment; an explanation of why the payment is necessary, including any public interest issue where appropriate; and where it involves an employee acting against their employer, the information presented must be assessed as well as justified. This system applies to freelance journalists working at Associated Newspapers when they need to make payments to third parties in pursuit of a story for the company.146 In addition to normal relationships with news agencies, fees to third parties are sometimes paid. These could be fees to freelancers (either for information or for journalism), fees to the public for information, fees to the public for the right to tell their story, or fees to the public for pictures.147 Payments can be made in cash in a limited number of circumstances, and can be to anonymous sources. Each desk will have delegated authority to approve payments up to an agreed level. Above that level, the approval of the editor or deputy editor is required. Where larger sums are involved, for example in regard to buy-ups, there will normally be senior editorial discussion and the payments would be subject to contractual documentation.148 Associated News policies and procedures
3.17
3.18
3.19
Compliance with the Editors Code of Practice is a contractual requirement for all journalists employed at Associated News.149 Additionally, it has been a contractual requirement for all ANL journalists, and any freelance journalists working for ANL, to comply with the Data Protection Act. Any complaints to the PCC, and guidance from them, is reflected in legal notices circulated to editorial staff and relevant legal advisors.150 The editor-in-chiefs policy is that:151
p4, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Paul-Dacre.pdf pp116-117, lines 25-9, Paul Dacre, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-6-February-20121.pdf 146 p9, para 27, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Paul-Dacre.pdf 147 p9, paras 28-29, ibid 148 p11, paras 33-34, ibid 149 p2, para 5, ibid 150 p6, para 18, ibid 151 p5, para 15, ibid
145
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PART C | The Press
one of the most important things a newspaper can do is to employ first rate reporters, writers and subs who are more concerned than anybody to ensure that their journalism is of the highest professional standards. 3.20 Mr Dacre explained to the Inquiry that clear lines of communication exist between staff, department heads and the managing editors. In this respect, the company ensures that presence of the managing editors on the newsroom floor is constant. Mr Dacre said that:152 If, for example, a reporter was asked to do something he or she was unhappy about, or a head of department was unhappy about signing off payment, there is no reason why they would not feel able to discuss this with the managing editors ANL also has a Data Protection Policy,153 and a staff handbook which includes a whistleblowers procedure and a speak up policy.154 3.21 Compliance with the Editors Code of Practice is a particular responsibility of managing editors, together with companys in-house lawyers, who are not involved in editorial decision making and who staff should approach with any concerns related to compliance with the Code. managing editors ensure that all staff are kept aware of any changes to the Code and also have copies of the latest version. PCC training and refresher sessions are also used to ensure compliance with the Code.155 The Inquiry has been told that training is a key part of ANLs approach to embedding ethics and compliance with the code within the organisation across the range of responsibilities. Disciplinary action has been taken by ANL against journalists on occasion in respect of breaches of the code.156 It is made clear to all journalists working for ANL that failure to abide by the Editors Code of Practice will have serious consequences for them, the editor and the company.157 Examples of letters to staff and instructions from the managing editors, legal warnings from the legal department and disciplinary action have been disclosed to the Inquiry.158 Since April 2007 there has been an outright ban on ANL staff using private investigators and search agencies.159 As well as informing all ANL Journalists of the ban, the Inquiry has been told that ANL have also written to every agency previously used by ANL employees stating that any further use of their services was unauthorised and would not be paid for by the company. This has only been breached once, which resulted in the dismissal of the staff member responsible.160 ANL retains three commercial relationships with information search services in relation to genealogy, business information and tracing, each of which the company is satisfied complies with DPA requirements.161
3.22
3.23
152
p6, para 19, ibid p8, para 25, ibid 154 p6, para 19, ibid 155 p6, para 20, ibid 156 p13, paras 29-40, ibid 157 p5, para 17, ibid 158 p6, para 18; p13, paras 29-40, ibid; p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Witness-Statement-of-Peter-Wright.pdf 159 p14, para 45, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Paul-Dacre.pdf 160 p13, para 39, ibid 161 p14, para 44, ibid
153
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3.24
Any staff who believe they have access to, or want to access, material in breach of the DPA are required to contact the editor or deputy editor and where there are compelling public interest reasons to proceed, those reasons should be recorded in writing.162 Associated News has an Anti-Bribery and Corruption policy, a policy on Working with Third Parties and a policy on Gifts and Hospitality. Introduction of new procedures relating to these policies were undertaken in light of the introduction of the Bribery Act 2010. All staff must comply with these policies and promptly report any concerns or violations.163 Associated News management structures and processes
3.25
3.26
Editorial departments at Associated Newspapers are hierarchical organisations.164 Reporters make the initial judgment on the quality and source of the information they are dealing with, and whether it is publishable with regard to issues of libel, privacy, data protection and taste. If they have doubts about the accuracy of the information or how it was obtained they have to discuss it with their head of department, who in turn must discuss it with senior editorial executives, who may make other investigations or consult the deputy editor or other senior executives.165 Sub-editors are encouraged to check facts where it is appropriate to do so.166 The editor will in turn scrutinise their decisions and may make his own enquiries if he has any reason to doubt the accuracy of the story or the methods used to obtain the story.167 The current editor of the MailOnline, Martin Clarke, told the Inquiry that he applies the same standards of reporting and appropriate checks involved in the publication of stories on the website as the companys print journalists would do.168 Editors are assisted in any such decision making by the managing editors. It is the role of the managing editors to investigate complaints and alleged breaches of the Editors Code of Practice if, and when, they arise, while at the same time educating journalists about any new developments to or requirements of the Code, and must be proactive in ensuring that the Code is not breached.169 The Inquiry has been told that Managing Editors are a constant presence on the editorial floor, independent of other departments and not involved in editorial decision-making, save where they are seeking to ensure that a legal or PCC warning is noted.170 Paul Dacre has made clear that one of their core functions is to:171
3.27
3.28
p14, para 44, ibid p8, para 27, ibid 164 p4, para 10, ibid; pp1-2, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/WitnessStatement-of-Peter-Wright.pdf 165 p13, para 41, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Paul-Dacre. pdf; pp3-4, paras 9-11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-PeterWright.pdf 166 p5, para 15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Paul-Dacre. pdf; p3, para 9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Peter-Wright. pdf 167 p13, para 41, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Paul-Dacre. pdf; pp3-4, paras 9-11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-PeterWright.pdf 168 p7, lines 6-10, Martin Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-9-May-2012.pdf 169 p4, para 10; p6, paras 19-20, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statementof-Paul-Dacre.pdf 170 p6, para 19, ibid 171 ibid
163
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ensure that our journalists understand and comply with the highest professional standards. Associated News incentives 3.29 The editor-in-chief and other ANL editors may receive share options as part of their remuneration but these are tied to DMGTs overall financial performance, and not editorial performance.172 Mr Dacre, told the Inquiry that he also received a one-off lifetime bonus which was taken in 2010.173
C
4.1
4. northern and shell Media group Ltd

Northern and Shell is a privately owned company, founded and owned by Richard Desmond. The Daily Express Group was acquired by Mr Desmond on 22 November 2000.174 In its formal submission to the Inquiry, Northern and Shell have described the Daily Express as the worlds greatest newspaper,175 and that it:176 covers world and domestic events in depth and with style, it leads opinions and tell the truth intelligently, fearlessly and with attitude. It engages the modern reader with a unique mix of news, features, sport, health, money matters, columnists and entertainment [it] spearhead[s] the values of middle Britain. 4.2 Perhaps more prosaically, Mr Desmond has told the Inquiry that his only interest in acquiring the Express Group was the commercial opportunity that it offered.177 Echoing the importance of the commercial interests of the Express Groups owner, the current editor of the Daily Express, Hugh Whittow, has told the Inquiry that his priority for the title is to keep it: buoyant, popular and profitable, and hopefully keep and encourage more readers.178 The Daily Express has traditionally supported the Conservative Party. Although the paper backed the Labour Party in the 2001 general election under the editorship of Rosie Boycott, the paper returned its support to the Conservative Party ahead of the 2005 general election.179 The then editor, Peter Hill, explained the reason for that change in allegiance to the Inquiry:180 the entire history of the Daily Express had been that of a right-of-centre newspaper. It has an enormous constituency of readers who supported that view, and I felt that it had been a huge mistake to move the newspaper to support the Labour Party, which had been done by previous editors and administrations, and it had, in fact, cost the newspaper an enormous number of readers who had abandoned it in despair.
p4, para 13, ibid; p3, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statementof-Peter-Wright.pdf; p2, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statementof-Liz-Hartley.pdf 173 p4, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Paul-Dacre.pdf 174 p2 para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-RichardDesmond.pdf 175 http://northernandshell.co.uk/media/express.php 176 http://northernandshell.co.uk/media/express.php 177 p64, lines 19-22, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-12-January-2012.pdf 178 p125, lines 22-24, Hugh Whittow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-12-January-2012.pdf 179 http://www.guardian.co.uk/news/datablog/2010/may/04/general-election-newspaper-support 180 p17, lines 6-13, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-12-January-2012.pdf
172
4.3
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History
4.4 The Daily Express was founded by Arthur Pearson in 1900. In 1916 the newspaper was purchased by Max Aitken, later Lord Beaverbrook. Beaverbrook was unashamed about the political use he made of his newspapers. In this respect the Beaverbrook Foundation said:181 it will be for his role as a pioneer of newspapers and for his ability to form public opinion that Beaverbrook will be ultimately remembered. 4.5 Under Beaverbrooks ownership the Daily Express became one of the most popular daily newspapers in the UK. Its circulation grew from 2.33m in 1938 to 4.3m in 1960.182 However, its circulation fell after Lord Beaverbrooks death in 1964 and in 1977 the Daily Express was bought by the construction company Trafalgar House. In 1978 Trafalgar House launched the Daily Star, initially circulated only in the North and the Midlands. In 1982 Trafalgar House incorporated its newspaper publishing interests into a new company, Fleet Holdings, which was purchased by United Newspapers in 1985. In 2000, Express Newspapers, which at the point included the Daily Express, the Daily Star and the Sunday Express, was purchased by Northern and Shell, a company owned by Richard Desmond. The Northern & Shell Media Group was founded in December 1974 by Richard Desmond, who continues to own it.183 The group began publishing music magazines and expanded into a wider range of magazines as well as into advertising and insurance. The group acquired Express Newspapers in November 2000 and Channel 5 in July 2010.184 The Northern & Shell Media Group currently comprises newspapers (the Daily and Sunday Express and the Daily Star and Daily Star Sunday), printing and distribution, magazines (OK!, New! and Star), Television (Channel 5 and a number of subscription and pay per view channels) and digital media (a stake in the internet television service, YouView, on demand video, websites of its print publications and other web services).185 In 2010 Northern and Shell Media Group had a turnover of 496.3m, with operating profit of 36m.186 Group turnover in 2010 from publishing and printing (newspapers and magazines) was 347m, with operating profit of 43.7m. The circulation of the Daily Express in February 2012 stood at 577,543, the sixth highest circulation for a national newspaper. Although this is just below the circulation of the Daily Telegraph (on 578,774), the Express has a significantly smaller readership than The Sun, Daily Mail, and Daily Mirror and fractionally less than its sister title, the Daily Star, which has the fourth highest circulation at 617,082. This gives the Daily Express and the Daily Star 6.3% and 6.8% of national daily newspaper circulation respectively, giving N&S Group a 13.1% share of national daily newspaper circulation. In February 2012 the circulation of the Daily Star Sunday and the Sunday Express was 599,078 and 567,800 respectively, which equates to 5.4% and 5.1% of the national share, and accounts for some 10.5% of national Sunday newspaper circulation.187
4.6
4.7
http://www.beaverbrookfoundation.org/lord-beaverbrook3.php http://www.beaverbrookfoundation.org/lord-beaverbrook3.php 183 p54, lines 6-11, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-12-January-2012.pdf 184 http://northernandshell.co.uk/about/index.php 185 http://northernandshell.co.uk/media/express.php 186 http://www.northernandshell.co.uk/downloads/NorthernAndShell_2010.pdf 187 ABC circulation figures February 2012, http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=48913 &c=1
182
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Northern and Shell boards 4.8 The Board consists of five Executive Directors including the Group Editorial Director, who assumes the role of Board Director, in charge of the creative functions of the organisation.188 The Board does not have any members who are the editors of the Northern and Shell titles. The Board has the responsibility for the administration and business functions of Northern and Shell. In January 2011, it took the decision to withdraw Express Newspapers from the Press Complaints Commission (PCC).189 Northern and Shell editorial independence 4.10 The Inquiry has been told that the members of the Northern and Shell Board has no influence over the editorial content carried by the Express Newspaper titles. Mr Desmond has further told the Inquiry that individual editors are responsible for determining the tone of the newspapers they manage and have complete independence in terms of the content they publish. 190 He has said that Editors:191 decide the stories that go in the papers and leave the directors and the administration side of the company to look after the business issues. 4.11 The decision made by the former Editor of the Daily Express, Peter Hill, to support the Conservative Party ahead of the 2005 general election, was taken with the approval of the Board, although Mr Hill emphasised in evidence that the decision was ultimately his. He has explained:192 It had qualified support, because the chairman, Mr Desmond, was a strong supporter of Mr Blair, who was then the Prime Minister, and he was not really a -- he was not a supporter of the Conservative Party, but he accepted that this was the appropriate thing to do. 4.12 Mr Desmond also stressed the independence of the editor in reaching that decision, and mused as to whether Mr Hills decision might have impacted adversely on his relationship with the then Prime Minister, Tony Blair. He noted that:193 at the end of the day Peter Hill runs the editorial of the paper and that was the decision that he made.
4.9
pp1-2, para 1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-PaulAshford1.pdf 189 p5, para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-RichardDesmond.pdf 190 pp31-32, lines 20-5, Paul Ashford, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Afternoon-Hearing-12-January-2012.pdf; p5, para 16, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Richard-Desmond.pdf 191 p3, para 9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-RichardDesmond.pdf 192 p17, lines 19-23, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-12-January-2012.pdf 193 pp65-66, lines 23-1, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Afternoon-Hearing-12-January-2012.pdf
188
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Northern and Shell financial governance 4.13 Corporate Governance at the Northern and Shell is primarily achieved through financial control and, particularly, the imposition of strict budgeting and financial oversight. Following the purchase of Express Newspapers, Northern and Shell implemented new systems in November 2000 intended to effect more effective control of expenses and invoices. Any expenses which exceed 5,000 must be signed off by a director at the group.194 The Managing Director samples payments to ensure they are appropriate and approves all editorial expenses claims.195 Cash payments are rarely used but are handled as staff expenses, which require approval by the relevant editor and managing editor. Northern and Shell policies and procedures 4.14 Express Newspapers has a staff handbook which before 2001 was given to all staff and which is still available to staff on request.196 That handbook included the Editors Code of Practice and stated that editors and journalists must comply with it.197 Gareth Morgan, editor of the Star on Sunday, told the Inquiry that he has sought to ensure that hard copies of the Editors Code of Practice are distributed throughout his newsroom, and that this is done each time the Code is revised.198 The Northern and Shell staff handbook also includes a requirement that employees should comply with any company policies in force in this regard. It also includes a requirement that staff should seek to minimise the risk of expensive and damaging legal action.199 Although Northern and Shell is not a member of the PCC, the legal team expect to work in accordance with the standards set down in the Editors Code of Practice.200 Rather than responding to complaints made by members of the public or by affected parties through the PCC, instead Northern and Shell has established a Committee, comprising all the editors, the Group Editorial Director and the legal department, which sits on an ad hoc basis to look at any complaints received relating to the companys publications.201 At present, there are no specific documents setting out the policies around anti-bribery or information gathering. Northern and Shell are in the process of issuing an anti-bribery and corruption policy following the enactment of the Bribery Act 2010.202 There are no rules on the employment of private investigators and search agents.203 The absence of any internal system for monitoring the use of search agencies has allowed some journalists to maximise the use of these services, without oversight through the legal
4.15
4.16
4.17
p3, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-RobertSanderson.pdf 195 p2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Paul-Ashford1.pdf 196 p2, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Martin-Ellice.pdf 197 p24, Martin Ellice, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-MSE1.pdf 198 p2, para 2.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-GarethMorgan.pdf 199 p13, Martin Ellice, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-MSE1.pdf 200 p4, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-NicolePatterson.pdf 201 p2, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Dawn-Neesom. pdf; p3, para 9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-MartinTownsend.pdf 202 p3, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-RobertSanderson.pdf 203 p5, paras 12-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-RobertSanderson.pdf
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department of Express Newspapers, or the editors of the Express titles. In this regard, Nicole Patterson, Head of Legal at Express Newspapers informed the Inquiry that:204 I cant say as far as we were aware because until we started having a look at this, I didnt even know that we used these search agencies. 4.18 Dawn Neesom, the current editor of the Daily Star, told the Inquiry that it was the investigations of Express Newspapers legal department into unusually large payments made in expenses claims, which revealed the extent of the Daily Stars use of external search agencies. Ms Neesom said that as editor of the title she should have been made aware sooner that these practices had been taking place but was not.205 Ms Neesom explained that a specific policy in relation to the use of external providers of information did not exist at the Daily Star. The expectation now is that her newsroom operates within the limits of the Editors Code of Practice;206 the Northern and Shell staff handbook, and the financial systems set in place by the Board.207 Mr Whittow, also told the Inquiry that he was unaware of the use of search agencies by his journalists. He said that he received the same assurances as Ms Neesom. Similarly, he assumed that any use of the search agencies would have been conducted within the confines of the law.208 In contrast, the use of search agencies at the Daily Star Sunday, was undertaken with the knowledge of the editor. Mr Morgan, told the Inquiry that payments to search agencies are authorised through the Assistant News Editor, Jonathan Corke. Mr Morgan told the Inquiry that he:209 speak[s] to Mr Corke on a regular basis to make sure that if we are instructing a search agency, we are doing the right thing. 4.20 The Inquiry has not heard any evidence to suggest that the Express Newspaper titles have implemented a formal whistle-blowing policy. Instead, Ms Neesom told the Inquiry that she operates an open-door policy for her staff at the Daily Star, but was unable to differentiate between that process and an official policy for her employees. She told that Inquiry that journalists:210 can go to human resources. We dont Ive never had a whistle-blowing experience, to be honest with you.
4.19
p9, lines 6-7, Nicole Patterson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-12-January-2012.pdf 205 p43, lines 8-19, Dawn Neesom, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-12-January-2012.pdf 206 p7, para 19, Dawn Neesom, ibid 207 pp44-45, lines 16-5, Dawn Neesom, ibid 208 pp7-8, para 21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-HughWhittow.pdf 209 p8, para 25, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-GarethMorgan.pdf 210 p76, lines 18-19, Dawn Neesom, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-12-January-2012.pdf
204
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Northern and Shell management structures and processes 4.21 The editor of each Northern and Shell title is responsible for the staff who work on that title.211 Journalists report to their head of department, who in turn reports to the deputy editor, who reports to the editor.212 The news and pictures desk, and individual reporters, have responsibility for verifying sources of information for their stories.213 Ms Patterson told the Inquiry that:214 I expect that when Im presented with a story or some copy for legalling that the journalist will have done their job and that those facts will be correct, and if there is a legal problem with any of them, then I ask them, where did it come from? How did it come about? 4.22 Editors have a responsibility to ensure that the policies for lawful, professional and ethical conduct are adhered to in practice.215 The Inquiry has been told that editors at the group check throughout the day on all stories and pictures that are being printed.216 Sources for stories are discussed at editorial meetings which take place throughout the day, at which unusual articles and sources of information for those articles will be discussed.217
5. trinity Mirror plc

5.1 Trinity Mirror describes the Daily Mirror as: a unique balance of real news, real entertainment and sport and says that its core values are compassion, conviction and courage.218 Since the 1930s the Mirror has been a left-wing newspaper, and has supported the Labour party at every general election since 1945.219 Richard Wallace, editor of the Daily Mirror at the time he gave his evidence, said that the fact that he had met more often with Labour leaders than with the Conservative leader is a reflection of the papers political stance.220 5.2 Lloyd Embley , then the editor of the Daily Mirrors sister title, the People, and now the editor of the Daily Mirror, described the People as providing:221 a combination of news, showbusiness and celebrities, football coverage and reallife stories.
211
p7, para 27, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-NicolePatterson.pdf 212 p2, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Dawn-Neesom.pdf 213 p6, para 16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Hugh-Whittow.pdf 214 p23, lines 10-15, Nicole Patterson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-12-January-2012.pdf 215 p5, para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-RichardDesmond.pdf 216 pp3-4, para 3-4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-HughWhittow.pdf 217 p8, para 29, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-NicolePatterson.pdf 218 http://www.trinitymirror.com/our-portfolio/nationals/daily-mirror/ 219 http://www.guardian.co.uk/news/datablog/2010/may/04/general-election-newspaper-support 220 p41, lines 9-14, Richard Wallace, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-16-January-2012.pdf 221 p6, para 25, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lloyd-Embley.pdf
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Mr Embley has said that the People, provides a unique focus on real-life stories. The title even publishes a supplementary magazine given over to such stories.222 5.3 Despite the historic support of the Mirror Group for the Labour party, Mr Embley has shifted the political allegiance of the People. It is now politically independent. Mr Embley has told the Inquiry that this was a personal decision, linked to the wider re-launch of the title, following his promotion to the position of editor in May 2008.223 Mr Embley stressed the importance of the Peoples independent position, and explained to the Inquiry that:224 My move to political independence, I think, says quite a lot about where I stand on my view is that I represent and my paper represents the views of its readers, and my view on why I moved it to be politically independent is because I think politics has changed so much and the parties are so closely aligned on so many policy issues that it seems wrong to me just to follow one party. I felt it enable me to stand up for my readers best. 5.4 The Trinity Mirror titles are also campaigning newspapers, and routinely run campaigns on issues they understand to be of importance to the demographic of their readership.225 The People has campaigned on the issue of fuel poverty, working with the industry to provide free energy saving devices and raising awareness to rising energy costs.226 The Sunday Mirror have led a number of military campaigns, raising money for former servicemen, highlighting the need for improved aftercare offered to troops returning from service.227 Other campaigns have included the Daily Mirrors Honour the Brave and the successful Pride of Britain Awards.228 Mr Wallace told the Inquiry that the Daily Mirror campaigns very much reflect the titles values and political stance, representing the interests of ordinary people.229
History
5.5 The Daily Mirror was founded by Alfred Harmsworth, Viscount Northcliffe, in 1903 as a periodical for ladies. The paper left the Harmsworth stable when it was sold in 1922 to Viscount Astor after Viscount Northcliffes death. During the 1930s, the Mirror developed a strong focus on working class issues. By 1939 it sold 1.4m copies a day. Its popularity continued to grow and by the 1960s it was the most popular of the national dailies, selling over 6m copies a day. In June 1953 the Daily Mirror broke all records selling 7m copies on the day of the Coronation. In 1963 the Mirror Group together with three magazine publishers formed the International Publishing Corporation (IPC).230 In 1960 the Mirror Group acquired the failing Daily Herald, and re-launched it in 1964 as a mid-market paper called The Sun, which was then sold to NI in 1969. In 1970 the IPC was taken over by Reed International Limited. In 1984, Pergamon
5.6
ibid p50, lines 10-18, Lloyd Embley, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-16-January-20121.pdf 224 p53, lines 12-20, Lloyd Embley, ibid 225 p4, para 16; p6, para 20, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-ofTina-Weaver.pdf 226 p6, paras 27-29, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-LloydEmbley.pdf 227 p6, para 22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Tina-Weaver.pdf 228 pp5-6, para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-RichardWallace.pdf 229 p6, para 18, ibid 230 http://www.ipcmedia.com/about/
223
222
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Holdings, a company owned by Robert Maxwell, acquired the Daily Mirror from Reed and it was re-listed as Mirror Group in 1991 following the death of Mr Maxwell that year. Trinity was formed in 1985 when the Liverpool Daily Echo separated from its holding company. Trinity grew rapidly through the acquisition of regional titles and in 1999 Trinity and the Mirror Group merged to form Trinity Mirror, the biggest newspaper publisher in the UK.231 5.7 Trinity Mirror is still one of the UKs largest newspaper publishers with a portfolio including five national newspapers, over 130 regional newspapers and more than 500 digital products. In 2010 Trinity Mirror had revenue of 761.5m and operating profit of 123.3m.232 The Group employs over 6,500 people in more than 60 locations across the UK, including nine print sites. The Group has two trading divisions: Regionals and Nationals. The Nationals contribute something over half of Trinity Mirrors revenues and profits, with revenue in 2010 of 430.3m and operating profits of 86.1m compared to 2010 revenue from the Regionals division of 331.2m, with an operating profit of 51.7m. Trinity Mirrors national titles include two daily titles: the Daily Mirror and the Daily Record; and three Sunday titles: the Sunday Mirror, the People and the Sunday Mail (the sister paper to the Daily Record). In February 2012 the Daily Mirror had a circulation of 1.102m,233 or just under 12% of national daily circulation. The Daily Record had a circulation of 291,825, which puts it at just over 3% of national circulation, meaning that the Mirror Group titles together account for around 15% of national circulation. The Sunday Mirror, the People and the Sunday Mail in February 2011 had circulations of 1,594,293, 701,246 and 376,898 respectively, with 14.4%, 6.3% and 3.4% of national Sunday circulation respectively, with Mirror Group titles accounting for just over 24% of all national Sunday circulation, including the third and fifth most popular national Sunday titles.234
5.8
5.9 Trinity Mirror is a public company listed on the London Stock Exchange. Trinity Mirror boards 5.10 The Board consists of eight members, of whom the Chair and four members are nonexecutives. The Executive Directors are the Chief Executive, the Finance Director and the Company Secretary.235 Risk management is handled through the Audit and Risk Committee and risk maps, with around 70 senior personnel required each year to certify that they are properly identifying and reporting risk.236 The Inquiry has been told that risks tracked by the Risk Committee include catastrophic editorial error.237 Day to day corporate governance is managed through the Executive Committee, which includes the three executive directors and the Managing Directors of the Nationals and Regionals Divisions.238
http://www.trinitymirror.com/our-company/history/ http://www.trinitymirror.com/documents/Trinity%20Mirror%20Prelim%203March%20FINAL.pdf 233 ABC circulation figures February 2012, http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=48913 &c=1 234 ABC circulation figures February 2012, http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=48913 &c=1 235 http://www.trinitymirror.com/our-company/board-of-directors/ 236 p16, para 65, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Sly-Bailey.pdf 237 p15, para 59, ibid 238 p14, para 56, ibid
232
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5.11
Within the Trinity Mirrors overall strategy for the management of risk, the editor is responsible for identifying risks and making the best judgments associated with that risk. Inhouse lawyers are also in place at titles, and are responsible for providing advice to the editor in relation to publishing articles in compliance with the Code.239 The editor will report to the Managing Director (of either Nationals or Regionals), who in turn report to the Board, and the Chief Executive.240 Trinity Mirror editorial independence
5.12
The editors of the Daily Mirror, the Sunday Mirror and the People are appointed by the Board of Trinity Mirror, which has the power to remove them.241 The final decision on what is published in a title belongs to the editor of that title, and is without influence from the Board or shareholders of Trinity Mirror.242 Trinity Mirror financial governance
5.13
Financial authority is delegated within strict limits, dependent on seniority, and within budget categories.243 No one is authorised to approve payments that would breach any of Trinity Mirrors policies. Trinity Mirror has a strict policy against all manifestations of fraud and dishonesty.244 The Fraud Policy states that Trinity Mirror will seek to recover all associated costs from the individual responsible for a fraud and makes clear that such action will lead to potential disciplinary processes, and might lead to the involvement of the police.245 Trinity Mirror policies makes clear that the system used for paying expenses should not be used for payment for editorial content, which is instead registered as a payment for contributions.246 Expenses must be approved by someone other than the claimant with an appropriate authority level.247 If expenses relate to entertainment of a third party then only the editor can authorise the third party remaining anonymous on the record of the expenses.248 Each title has a budget for contributions, and MGN has 68,000 contribution accounts of which 19,000 have had at least one transaction processed since 2005.249 Payments under the contributions system are made direct to the bank accounts of the recipients. All payments must be appropriately authorised and new accounts cannot be set up by the authoriser.250 Cash payments can be made, but over a certain limit they must be approved by an editor or deputy editor and the approver must know to whom the payment is going. The request for the cash payment must be approved by a senior in-house legal advisor and the journalist must provide written receipts for the amounts claimed.251
5.14
p9, para 37, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Tina-Weaver.pdf p7, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-RichardWallace.pdf 241 pp22-23, para 84, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-SlyBailey.pdf 242 p23, para 85, ibid 243 p10, para 36, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-VijayVaghela.pdf 244 pp10-11, para 40, ibid 245 Trinity Mirror plc Fraud Policy. This evidence can be found on the Inquiry website. 246 p11, para 41, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-VijayVaghela.pdf 247 p12, para 42, ibid 248 p14, para 52, ibid 249 pp12-13, para 47, ibid 250 p13, para 49, ibid 251 p14, para 52, ibid
240
239
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Trinity Mirror policies and procedures 5.15 Trinity Mirror has a policy on Standards of Business Conduct with which all staff must comply.252 There is also a Code of Conduct policy. Breach of either is grounds for disciplinary action.253 The PCC Editors Code of Practice is incorporated into staff contracts.254 Trinity Mirror has a fraud policy and a whistle-blowers charter in place,255 which covers fraud and any instance of malpractice.256 Trinity Mirror also has a Dignity at Work Policy which covers bullying and victimisation, as well as an equal opportunities policy.257 The Mirror Group has used private investigators but since 2011 have introduced a new policy to halt such use.258 Trinity Mirror has also re-issued to staff the organisations policies and procedures on relevant privacy issues, including the zero tolerance policy on breaches to the Data Protection Act.259 Management structures and processes 5.17 The Chief Executive of the Trinity Mirror Group is responsible for the propriety and reputation of the company. The editorial functions of the national and regional titles are the responsibility of the editors of the individual titles. The management of editorial staff are for the editors alone. However, the Board has the power to appoint and terminate the contracts of the editors at all of the titles.260 Managing editors are responsible for the business operation of the newspapers and have no role in editorial issues. The editor is ultimately responsible for the content of their publication and is granted full editorial independence by the Trinity Mirror Board. The editor of a given title within the Group will chair editorial conferences with heads of departments on a daily basis.261 262 Journalists working on the Daily Mirror are expected to know and understand the Editors Code of Practice.263 Mr Wallace has told the Inquiry that in his view ethics was not something that should require frequent reminding in the newsroom as, he argued, it was inherently embedded in the culture of the Daily Mirror.264 To this extent, appropriate measures with regard to the verification of sources for stories, are expected to be the responsibility of
5.16
5.18
p10, para 40, ibid p10, para 38, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Paul-Vickers.pdf 254 pp22-23, para 84, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-SlyBailey.pdf 255 p17, para 68, ibid 256 pp10-11, para 39, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-PaulVickers.pdf 257 p12, paras 43-44, ibid 258 p15, para 57, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-VijayVaghela.pdf; p19, paras 66-67, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statementof-Richard-Wallace.pdf 259 p16, lines 2-19, Richard Wallace, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-16-January-2012.pdf; p8, paras 28-30, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Tina-Weaver.pdf 260 pp78-79, lines 25-21, Sly Bailey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-16-January-20121.pdf 261 p8, para 39, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lloyd-Embley. pdf; pp5-6, para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-TinaWeaver.pdf 262 p7, para 36, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-MariaMcGeoghan.pdf 263 p18, lines 22-25, Richard Wallace, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-16-January-2012.pdf 264 p20, lines 4-6, Richard Wallace, ibid
253
252
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individual journalists.265 The editor is also responsible for certifying that appropriate controls are in place. Trinity Mirror incentives 5.19 Editors at Trinity Mirror do not receive any financial benefit for printing exclusive stories. Trinity Mirror operates an annual bonus scheme which is linked to the financial performance of the company and an editors individual performance.266
C
5.20
Mirror Group Regionals

The Mirror Group regional titles also operate under the Mirror Group Standards of Business Conduct.267 In addition, there is a Mirror Group Regional Editorial Policy, which incorporates the Editors Code of Practice.268 Approaches may differ across the regional portfolio. The Inquiry has seen evidence from the Manchester Evening News (MEN), which was purchased from the Guardian Media Group in 2010, indicating that it requires every article to be looked at by two experienced journalists to ensure that it is lawful, accurate and fair.269 The MEN also seeks to ensure that nothing is published which is legally problematic, with a policy if in doubt, dont publish.270 Any breach of the law or any use of subterfuge would have to be approved by the editor.271
6. the telegraph Media group

6.1 The Daily Telegraph has the highest daily circulation of the national broadsheet titles. The Chairman of the Telegraph Media Group, Aidan Barclay, has described the Telegraph as an iconic company,272 which has successfully established itself as an investigative and campaigning newspaper.273 in this regard, Mr Barclay has said that the publication of the MPs expenses story in 2009 was:274 probably the most important piece of investigative journalism across the British press in the last two decades. 6.2 The current editor of the Daily Telegraph, Tony Gallagher, told the Inquiry of the quality of the professional culture that exists at the Daily Telegraph. He, like others, emphasised that his newsroom operates in full compliance with the terms to the PCC Code, and is proud to produce quality news that is fair and accurate.275
pp11-12, paras 44-46, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-TinaWeaver.pdf 266 p4, para 16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lloyd-Embley.pdf 267 p5, para 24, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-MariaMcGeoghan.pdf 268 p5, paras 24-25, ibid 269 p5, para 26, ibid 270 p6, para 31-32, ibid 271 p11, para 55, ibid 272 pp3-4, para 14-15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-AidanBarclay.pdf 273 pp7-8, para 25, ibid 274 ibid 275 p8, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-TonyGallagher.pdf
265
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6.3
The Daily Telegraph has historically supported the Conservative party. With this in mind, Mr Barclay also told the Inquiry that:276 We operate under an overarching principle that customers come first. That does not mean the papers do not criticise Conservative Governments and politicians: they regularly do.
History
6.4 The Daily Telegraph was launched by Colonel Arthur B Sleigh in 1855, allegedly to air a personal grievance, but was soon sold to Joses Moses Levy. Levys son, Baron Burnham, eventually sold the Telegraph to Viscount Camrose in 1928 and both the Burnham and Camrose families remained involved in the management of the newspaper until it was bought by Conrad Black in 1986 (Lord Black of Cross Harbour). Under Lord Blacks ownership, the Telegraph Group became part of Hollinger International, in which Lord Blacks Hollinger Inc. held a 73% controlling stake in the company. In 2004 Sir Frederick and Sir David Barclay purchased Hollinger Inc, and with it the controlling stake in the Telegraph Group. In February 2012, the Daily Telegraph had a circulation of 578,774, its nearest broadsheet competitor is The Times with a circulation of around 398,000. Even so, this amounts to only a small fraction (6.3%) of the UKs national daily newspaper circulation. In the same month, The Sunday Telegraph, had a circulation of 461,280, which is the second most popular of the Sunday broadsheets (well behind the Sunday Times on 939,395), and accounts for 4.2% of UK Sunday newspaper circulation.277
6.5
6.6 The Telegraph Media Group is a private company, ultimately controlled by Sir David and Sir Frederick Barclays Family Settlements.278 In 2010, it recorded a profit after taxation of 50m on a turnover of 324m.279 It currently employs over a thousand members of staff.280 The Group publishes the Daily Telegraph and the Sunday Telegraph and also operates the Telegraph website, www.telegraph.co.uk. Telegraph boards 6.7 The Board of the Telegraph Media Group consists of eight members: the Chief Executive and Finance Director, Howard and Aidan Barclay, three Directors of other Barclay family undertakings, Rigel Mowatt, Philip Peters and Michael Seal and Loraine Twohill, who is an independent non-executive Director.281
pp9-10, para 32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-AidanBarclay.pdf 277 ABC circulation figures February 2012, http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=48913 &c=1 278 p14, para 41, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-TonyGallagher.pdf 279 1 January 2012 Report and Accounts for the Financial Year of the Telegraph Media Group Limited (published 21 March 2012) 280 p10, para 30, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-MurdochMacLennan.pdf 281 p3, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-MurdochMacLennan.pdf
276
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Telegraph editorial independence 6.8 The commercial and editorial sides of the business are run separately, with the editors reporting directly to the Chief Executive.282 The editorial teams determine what appears in the publications at TMG, and decisions on editorial matters are left entirely to the editor, subject to operating within TMG budgetary constraints.283 Mr Gallagher, told the Inquiry that he speaks only once or twice a month to the Chairman of TMG and would otherwise be left to focus on editorial matters.284 Telegraph financial governance 6.9 The Board agrees the budget for the newspaper, and authority to commit expenditure is delegated by the Board to department heads and senior editorial staff. Approved budgets for each editorial department are reviewed on a monthly basis.285 Any expenditure above the delegated level must be approved by the managing editor, Executive Director Editorial or the Finance Director.286 TMG has made clear to the Inquiry that it has systems in place to ensure that it acts in accordance with the requirements of the Companies Act 2006.287 TMG also operates clear procurement policies which state that any procurement must fully reflect all applicable laws and requires that any actual or potential unethical or illegal practices by a supplier should be reported to the Finance Director and Commercial Legal Director.288 Only five staff members at TMG are able to authorise payments to contributors of over 500 or payments to suppliers of over 1,000.289 Cash advances are generally only permitted for foreign travel expenses.290 Telegraph policies and procedures 6.11 All TMG editorial staff are required under the terms of their contracts of employment to comply with the terms of the Editors Code of Practice.291 The companys staff handbook and standard employment contracts also require adherence to a wider set of standards, which include not bringing the company into disrepute.292 More recently, TMG have moved to synthesise their core principles of ethical and legal conduct into an Editorial Code of Conduct.293
6.10
282
p2, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Tony-Gallagher. pdf; p3, para 9; p10, para 39, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-ofIan-MacGregor2.pdf 283 p14, para 41, ibid 284 p82, lines 8-18, Tony Gallagher, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-10-January-2012.pdf 285 p5, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-FinbarrRonayne1.pdf 286 p6, para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-TonyGallagher.pdf 287 pp3-4, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-FinbarrRonayne1.pdf 288 pp7-8, para 18a, ibid 289 pp6-7, paras 16-17, ibid 290 p8, para 18b, ibid 291 pp2-3, paras 6-7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-TonyGallagher.pdf 292 ibid 293 ibid
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6.12
TMG operates a whistle-blowing policy which allows staff to raise on an anonymous basis concerns they may have around potentially illegal or unlawful activity, or wrongdoing.294 TMG also introduced an Anti-Corruption and Bribery policy in 2010 following the introduction of the Bribery Act.295 At the time of writing, TMG did not have a policy on the employment of private investigators, but the company has made clear in evidence to the Inquiry that none have been employed within the tenure of the current editors.296 Telegraph management structures and processes
6.13
The Chief Executive Officer of the TMG, Murdoch MacLennan, is responsible for day to day leadership of the company. He holds weekly senior management meetings to discuss key strategic issues.297 Working to the editor of the Daily Telegraph are, the deputy editor, assistant editor and executive editor. Together they comprise the titles senior editorial team. Beneath them sit the Department Heads (or editors). They are also supported by deputy editors.298 There are two legal departments at TMG. They have distinct responsibilities; the Corporate Legal Department and Editorial Legal Department.299 When issues arise they are addressed jointly by the editorial and relevant legal teams. Where a complaint is made about a failure to adhere to terms of the Editors Code of Practice, the Editorial Legal Department is responsible, together with the journalists involved and department head, for conducting an investigation and responding to the complaint including drafting an apology where appropriate.300 Editorial Directives, for example requiring staff to bring specific types of issue to the legal department, are issued from time to time.301 Mr Gallagher told the Inquiry that the Daily Telegraph operates a system of peer-review for the majority of articles published on the Telegraphs website. This has replaced the traditional process of editorial checks found in most newsrooms, for online news stories, as it relies on the judgment of more experienced reporters, who are effectively allowed to self-publish their stories.302 Mr Gallagher has noted, however, that this process is only applied to seemingly uncontroversial news stories, whereas any article which might attract attention would be edited through the normal process, including, where appropriate with legal involvement.303
6.14
6.15
p9, para 20, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-FinbarrRonayne1.pdf 295 p10, para 24, ibid 296 pp13-14, para 49, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-IanMacGregor2.pdf; p17, para 47, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statementof-Tony-Gallagher.pdf 297 pp4-5, lines 18-6, Murdoch MacLennan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Afternoon-Hearing-10-January-2012.pdf; p3, para 9, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Murdoch-MacLennan.pdf 298 p3, paras 8-9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-TonyGallagher.pdf 299 p3, para 7-8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-AdamCannon.pdf 300 p6, para 19, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Arthur-WynnDavies.pdf 301 p10, para 30; p13, para 38; p18, para 56, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/WitnessStatement-of-Adam-Cannon.pdf 302 p74, line 1, Tony Gallagher, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-10-January-2012.pdf 303 p74, lines 3-12, Tony Gallagher, ibid
294
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Telegraph incentives 6.16 TMG operates an annual bonus scheme for its senior commercial executives and senior editorial executives. These bonuses are not contingent on publishing particular stories or exclusives, but rather are determined by financial targets related to the operating profit of TMG and the individual titles.304
7. the guardian Media group

7.1 The Guardian is the only national broadsheet title that is owned by a Trust, rather than a traditional proprietor owner, or through shareholders in a public or private company. Dame Elizabeth Forgan is the Chair of the Scott Trust which owns the Guardian. She has said that the central objective of the Trust is:305 To secure the financial and editorial independence of The Guardian in perpetuity: as a quality national newspaper without party affiliation; remaining faithful to liberal tradition; as a profit-seeking enterprise managed in an efficient and cost-effective manner. 7.2 The Guardian is required by the Trust to support liberal journalism. It has developed a reputation as a strongly liberal newspaper. Although this might be considered as a direct influence on the editorial decision-making at the Guardian, Alan Rusbridger, editor-in-chief of the title, explained to the Inquiry that:306 the only thing the Scott Trust tells you is to carry on the paper as heretofore, and its left to you to interpret the traditions of the paper in the light of the current circumstances. I think its a liberal small L, we discuss what the meaning of that is, but its not liberal politically. With this in mind, the Guardian has supported at different times the Labour Party, the Liberal Party, the Social Democratic Party, and the Liberal Democratic Party at general elections since 1945.307
History
7.3 The Manchester Guardian (the Guardian) was founded in 1821 by John Edward Taylor to promote liberal interests in the aftermath of the Peterloo massacre. The journalist CP Scott was made editor of the Guardian in 1872 and remained in post until 1929. Scott bought the paper in 1907 and in 1936 the Scott Trust was established by the son of CP Scott and became the owner of the Guardian. The Trust Deed requires that the company must: ... be carried on as nearly as may be upon the same principles as they have been heretofore conducted.
p7, para 21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-BenedictBrogan1.pdf; pp14-15, para 42, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statementof-Tony-Gallagher.pdf; p11, para 41, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/WitnessStatement-of-Ian-MacGregor2.pdf 305 p3, paras 13-14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-DameElizabeth-Forgan.pdf 306 p79, lines 1-7, Alan Rusbridger, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-17-January-2012.pdf 307 http://www.guardian.co.uk/news/datablog/2010/may/04/general-election-newspaper-support
304
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7.4
The Trust was established as a limited company in 2008, with the core purpose of securing the financial and editorial independence of the Guardian in perpetuity.308 The Scott Trust is the owner of the Guardian Media Group. The Guardian Media Group has three wholly owned businesses: Guardian News & Media, GMG Radio and GMG Property services; and shares in Trader Media Group and Emap. In 2010 GMG had a turnover of 280.2m excluding its joint ventures, but made an operating loss of 53.9million.309 Guardian News & Media publishes the Guardian and the Observer and guardian.co.uk. It also operates Guardian Business and Professional. GNM had turnover of 221m in 2010.310 In February 2010 The Guardian had circulation of 215,988, making it the second smallest circulation national broadsheet newspaper, with only 2.4% of UK daily national circulation. The Observer, in February 2010, had circulation of 253,022, which is again the second smallest of the Sunday broadsheets, accounting for 2.3% of national Sunday newspaper circulation.311
7.5
7.6 Guardian News and Media is wholly owned by GMG. GMG is wholly owned by the Scott Trust, who appoints, and can remove, the editor of the Guardian.312 The Scott Trust is not only responsible for the appointment of the editor-in-chief but is also responsible for the appointment of the readers editor. Only the Trust has powers to rescind that appointment, and that is done by way of a vote of the Board of the Trust.313 This is to ensure the independence of the readers editor from senior operational staff at the Guardian and the editor-in-chief. Guardian boards 7.7 The Board of the Scott Trust comprises ten directors. It includes the editor-in-chief of the Guardian, Alan Rusbridger, and the Chief Executive of GMG.314 Directors are appointed by a Nominations Committee (comprising the Chair and five Independent Directors). The directors meet quarterly and also meet annually with the full Board of GMG.315 The GMG Board consists of ten members, and includes the editor-in-chief of the Guardian, the Chief Executive of GMG and the Company Secretary of GMG, with addition the Chief Financial Officer of GMG and the Chief Executive of GMG Radio. The Board also comprises five Independent Directors.316 The Chair of the Scott Trust leads the appointment process for the Chair of GMG.317 The structure is deliberately designed to keep separate the editorial and
7.8
http://www.gmgplc.co.uk/the-scott-trust/history/ http://www.gmgplc.co.uk/wp-content/uploads/2010/11/GMG_AR_2010.pdf 310 http://www.gmgplc.co.uk/wp-content/uploads/2010/11/GMG_AR_2010.pdf 311 ABC circulation figures February 2012, http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=48913 &c=1 312 http://www.gmgplc.co.uk/the-scott-trust/the-scott-trust-board/ 313 p54, lines 4-21, Chris Elliott, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-17-January-2012.pdf 314 pp3-4, para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-DameElizabeth-Forgan.pdf 315 http://www.gmgplc.co.uk/gmg/gmg-board/ 316 ibid 317 p4, para 19, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-DameElizabeth-Forgan.pdf
309
308
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commercial parts of GNMs business in order to guarantee the editorial independence of all journalistic content.318 7.9 The Chief Executive Officer of GMG is ultimately responsible for all non-editorial aspects of corporate governance. All board directors of GNM and GMG (with the exception of the editor-in-chief) are accountable to the Chief Executive.319 Guardian editorial independence 7.10 Editorial governance is the responsibility of the editor-in chief, who is accountable to the board of the Scott Trust. The GMG Board is briefed on a monthly basis by the editor-in chief on editorial strategy and implementation, budgets, capital expenditure, industrial relations issues, significant stories and press coverage of the group. The editor-in chief also briefs the Scott Trust on similar issues on a quarterly basis. Both Boards reviews past performance and strategy for the year ahead in November.320 Directors do not discuss the editorial or political line of the paper.321 Guardian financial governance 7.11 The Group Audit Committee assists the GMG board in its oversight, including the integrity of financial reporting procedures and the companys compliance with legal and regulatory requirements.322 GNM has policies on expenses, delegated authority thresholds, bribery and anti-corruption, corporate hospitality and gifts and travel and expenses.323 These policies are available to staff through the company intranet and are kept under review to ensure that they are up to date.324 Payments to freelance journalists are processed by administrators using a bespoke payments system. Any one-off payments are made through the Finance Department. Payments to regular suppliers are made through a procurement system which requires a unique purchase order number for that payment to be made.325 Staff are able claim expenses in accordance with the companys expenses policy. Expenses are approved by officials within delegated approval limits.326 If a claim exceeds the limits set by the relevant policies, claims are referred to the managing editor for further scrutiny.327
7.12
318
p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Andrew-Miller. pdf 319 p3, para 6, ibid 320 p2, paras 4-5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-AlanRusbridger.pdf 321 p3, para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-DameElizabeth-Forgan.pdf 322 p3, para 7f, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Darren-Singer. pdf 323 pp13-14, paras 19-20, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-ofAlan-Rusbridger.pdf 324 p3, para 7f, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Darren-Singer. pdf 325 p3, para 7, ibid 326 ibid 327 ibid
136
Guardian policies and procedures 7.13 The Guardian operates its own editorial code of conduct which has been in place since 2002.328 This incorporates the Editors Code of Practice, which Guardian staff are required to comply with in the terms of their employment contracts.329 The GNM Code includes a number of issues not covered by the Editors Code of Practice (e.g. conflicts of interest and declarations) and also offers more comprehensive guidance than the Editors Code of Practice on a number of matters including privacy. In addition, the GNM Code also sets out a series of questions, including engaging the the Omand Principles, which should be considered by journalists whenever privacy issues are potentially engaged. These are:330 (a) (b) (c) (d) (e) 7.14 There must be sufficient cause the intrusion needs to be justified by the scale of the harm that might result from it; There must be integrity of motive the intrusion must be justified in terms of the public good that would follow from publication; the methods used must be in proportion to the seriousness of the story and its public interest, using the minimum possible intrusion; there must be proper authority any intrusion must be authorised at a sufficiently senior level and with appropriate oversight; there must be a reasonable prospect of success fishing expeditions are not justified.
The Guardian also operates a whistle blowing policy, and encourages its use by reassuring staff that they should be able to raise issues without fear of accusations of disloyalty, harassment or victimisation.331 An Anti-Bribery and Corruption Policy was introduced in June 2011, which was designed by the GMG and GNMs Anti-Bribery and Corruption Committee. This Committee reports on a regular basis to the GMG Board.332 Guardian management structures and processes
7.15
As previously stated, the editor-in-chief is responsible to the Scott Trust in terms of all editorial matters. In this regard, he reports directly to the Trust, rather than GMGs Chief Executive Officer. However, the editor-in-chief (who is also a director of both GMG and GNM) also has a responsibility to keep the GMG board informed about his areas of business, including the business of both the Guardian and the Observer.333 The remainder of the board directors of GNM and GMG are accountable to the CEO. He in turn reports to the Chair of GMG and directors of the Trust.334 335
328
pp3-6, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-AlanRusbridger.pdf 329 ibid 330 p15, para 21, ibid 331 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Supplementary-Statement-of-Alan-Rusbridger. pdf 332 pp1-2, Darren Singer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-DS1.pdf 333 p2, paras 4-5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-AlanRusbridger.pdf 334 p3, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Andrew-Miller. pdf 335 The role of the Managing Director of GNM was removed with the arrival of GMGs CEO in July 2010
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PART C | The Press
7.16
On an editorial level, the editor-in-chief of the Guardian and the editor of the Observer are responsible for their respective titles. They hold meetings to discuss issues affecting both titles, including budgets, staff issues and general strategy.336 The editorial process is the same for both the print and digital edition of the Guardian.337 Parallel to such processes, the Director of Editorial Legal Services, Gillian Phillips, reports directly to the managing editor of GNM, with whom meetings are held on a fortnightly basis. The Director of Editorial Legal Services is responsible for briefing the GNM Executive Committee on a monthly basis. These briefings will cover the main legal issues which have arisen, and the status of any complaints, or other on-going matters which the Committee should be made aware of.338 Guardian readers editors
7.17
7.18
Both the Guardian and the Observer have readers editors. The Guardians readers editor, Chris Elliott, is, as noted, independently appointed by the Scott Trust, and is accountable only to the Chair of the Trust.339 The readers editor at the Observer is not appointed in this way, but through the editor and with an unwritten guarantee of independence.340 This position is currently held by Stephen Pritchard, who is also member of the Board and former President of the Organisation of News Ombudsman.341 The contact details of the readers editor of both titles are published in each edition of the respective newspaper. As noted above, the Guardian is one of very few newspapers to employ a readers editor. The role of the readers editor is to correct or clarify inaccuracies, discuss issues raised by readers and liaise with an external Ombudsman.342 The readers editor at the Guardian writes a weekly column on the issues raised by readers. Reflecting the corporate and editorial independence of the role, this cannot be amended by the newspapers editor. On occasion, when the editor might disagree with the judgment of the readers editor, the views of the former may be taken into account, but ultimately the editor has no power to change the outcome of the readers editors findings. To this extent, Mr Elliott has stressed to the Inquiry that:343 ...obviously you listen carefully to that [view of the Editor], but if, in the end, you think its the right thing to do, you can fall back on the fact that you are employed by the Trust -- Im employed by the Trust and I actually think theyre wrong and we go ahead and I do what I see fit. However, there is a consultation process with the editor, the managing editor and the
7.19
7.20
pp1-3, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-AlanRusbridger.pdf 337 pp3-6, para 6, ibid 338 p8, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Gillian-Phillips. pdf 339 p54, lines 11-15, Chris Elliott, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-17-January-2012.pdf 340 p4, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Alan-Rusbridger. pdf 341 pp1-2, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-JohnMulholland1.pdf 342 p56, lines 3-16; pp57-58, lines 15-19, Chris Elliott, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Afternoon-Hearing-17-January-2012.pdf 343 p57, lines 9-14, Chris Elliott, ibid
336
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journalist involved in the article, once the readers editor has made his decision. 7.21 The readers editor may also refer any substantial grievances to the external Ombudsman. This is an externally appointed reviewer, who considers any complaints which bring into question the integrity of a Guardian journalist.344 The Ombudsmans role is to review the process of review conducted by the Readers Editor in carrying out the initial investigation. The Ombudsman does not look at or reinvestigate the complaint itself:345 he will look at the processes, the way weve actually carried out, rather than try to reinvestigate it. What hes trying to assess is whether the readers editor has done it fairly and competently. 7.22 In his evidence to the Inquiry, Mr Elliott explained that the external Ombudsman is unlikely to deal with a large number of referrals in the space of a year, only maybe one or two a year.346
8. the independent group

8.1 The Independent is the youngest of the major national daily newspapers. Independent Print Limited is jointly owned by the Russian business tycoon, Alexander Lebedev and his son, Evgeny. The Evening Standard Limited is also owned by the Lebedevs, having been purchased in January 2009. Evgeny Lebedev told the Inquiry that his focus for both newspaper titles is the provision of accurately informed journalism, which is ethically sound and delivered in the public interest. He said that although his papers might adopt different approaches and have different political leanings, the broader purpose of both titles remains dedicated to fair and accurate journalism.347 Mr Lebedev has expressed his pride at the successes of the London Evening Standard, a free newspaper title, which has reach of over one million readers a day in London, reporting on issues affecting the people of the capital.348 With regard to the philosophy of The Independent, Mr Lebedev has said that the title is:349 famed for its brilliant journalism, its foreign reporting, its comment, its -- its a newspaper that people trust because traditionally its been independent. 8.3 The current editor of The Independent, Christopher Blackhurst, echoed Mr Lebedevs evidence with regard to the reputation of The Independent. Mr Blackhurst told the Inquiry that the Independent prides itself on taking the highest ethical stance. He said that this ethical journalism is the core of The Independent brand, which Mr Blackhurst described as a serious newspaper at the top end of the market. 350 He has said further that this commitment to high quality journalism is reflected in the content published by the newspaper.
8.2
p58, lines 2-15, Chris Elliott, ibid p58, lines 16-19, Chris Elliott, ibid 346 p73, lines 13-16, Chris Elliott, ibid 347 p5, lines 8-23, Evgeny Lebedev, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-23-April-2012.pdf 348 p2, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Evgeny-Lebedev. pdf 349 p5, lines 16-19, Evgeny Lebedev, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-23-April-2012.pdf 350 pp2-3, paras 9-10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-ofChristopher-Blackhurst.pdf
345
344
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8.4
The Independent did not adopt a party political position at the two general elections that followed its launch but supported Labour at the 1997 electon. In subsequent elections it has switched its support between the Labour and the Liberal Democrat parties.
History
8.5
C
8.6
The Independent was founded in 1986 by the journalists Andreas Whittam Smith, Stephen Glover and Brett Straub, and was published by Newspaper Publishing plc. The creation of the new paper took place against the background of the Wapping disputes. It launched with the advertising slogan, It is. Are you? making play of the independence of the newspaper from the influence of a powerful proprietor. Although The Independent enjoyed initial success, and had achieved a circulation in excess of 400,000 by 1989, by the early 1990s its readership had declined and the paper was struggling financially. In 1994 both Independent News & Media (INM), a prominent Irish publishing company, and Mirror Group Newspapers took a stake in Newspaper Publishing and in 1996 INM purchased the whole company. By 1998 circulation had fallen to below 200,000, the smallest circulation of any of the national daily newspapers by some margin. By 2004, The Independent was reporting losses of 5m per year, and in 1998, following staff cuts, and in order to make further cost savings, the title moved to Northcliffe House, the headquarters of Associated Newspapers, where the two groups shared a number of services (though editorial, management and commercial operations remained separate). In January 2009 a company set up by the Lebedevs, purchased the loss making Evening Standard from Associated News for 1. The DMGT retain a 24.9% share of the Evening Standard.351 In March 2010, it was announced that the Lebedevs company would be buying The Independent. Alexander Lebedev was quoted as saying:352 I invest in institutions which contribute to democracy and transparency and, at the heart of that, are newspapers which report independently and campaign for the truth to be revealed. I am a supporter of in-depth investigative reporting and campaigns which promote transparency and seek to fight international corruption. These are things the Independent has always done well and will, I hope, continue to do.
8.7
8.8
A separate newspaper, the i was launched in October 2010, aimed at readers and lapsed readers of all ages and commuters with limited time. Priced at 20p it has quickly overtaken The Independent in circulation. In February 2012, the circulation of The Independent stood at 105,160. Its sister paper i has more than twice the circulation, at 264,432. Altogether the two titles account for 4% of UK national daily newspaper circulation. The Independent on Sunday had a circulation in February 2012 of 124,260, or 1.1% of UK national Sunday newspaper circulation.
8.9
p64, lines 18-25, Andrew Mullins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-10-January-2012.pdf 352 http://www.independent.co.uk/news/media/press/independent-titles-sold-to-lebedev-family-company-1927436. html
351
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8.10 Independent Print Limited (IPL), wholly owned by the Lebedev Family, is a private company. The company is legally distinct from the Lebedev owned Evening Standard Limited,353 The Independent board 8.11 8.12 The Board of IPL consists of a Chairman, Deputy Chairman, the CEO of IPL and of Non Executive Directors. The Board is also attended by the Company Secretary and Finance Director.354 The IPL Board also exercises a number of financial functions, which are reviewed on a weekly basis, to monitor the budgeting within the company. Editorial staff, for example, are allocated set budgets and these are monitored on a weekly basis and scrutinised in more depth by the Board on a monthly basis.355 The Finance Director and Company Secretary of IPL has emphasized the importance of transparency of editorial payments to the Boards overall corporate and financial governance functions.356 The managing editor of IPL and Evening Standard Limited is responsible for the IPLs company strategy.357 This document is endorsed by the IPL Board, and is used to monitor the progress of IPL on a monthly basis through Board meetings.358 The Independent editorial independence 8.14 There is complete editorial independence from the Board.359 The governance of the Board is concerned primarily with the financial management of the business. managing editor, Andrew Mullins explains that:360 we separate commercial and editorial to create clear editorial independence. 8.15 However, there are instances where editorial issues might be raised at Board level and Mr Blackhurst has also told the Inquiry that as the editor he is fully aware of the companys overall business strategy. 361 Mr Mullins explained that there are occasionally scenarios where costs related to the editorial structure are impacted; or where sales would significantly fall. Mr Mullins explained that in these instances, discussion of editorial processes would be
8.13
p4, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-AndrewMullins.pdf 354 p4, para 12, ibid 355 p4, para 14, ibid; pp2-3, paras 11-12 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/WitnessStatement-of-Manish-Malhotra.pdf 356 p77, lines 3- 10, Manish Malhotra, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-10-January-2012.pdf 357 p4, para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-AndrewMullins.pdf 358 pp68-69, lines 17-4, Andrew Mullins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-10-January-2012.pdf; p4, para 14, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Andrew-Mullins.pdf 359 pp5-6, para 19, ibid 360 p67, lines 13-15, Andrew Mullins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-10-January-2012.pdf 361 p70, lines 16-19, Christopher Blackhurst, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-10-January-2012.pdf
353
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PART C | The Press
discussed at board level, although there would never be any discussion in relation to the editorial content.362 8.16 Mr Blackhurst also told the Inquiry that The Independent has always sought to adopt a deliberately distinct approach to other national titles and continues to operate free from proprietorial influence.363 In his evidence to the Inquiry, Mr Lebedev emphasised that although he might on occasion share his expectations and personal vision with his editors on a regular basis, he has no influence on the editorial content of his newspapers.364 He explained to the Inquiry that:365 we certainly discuss policies, and I certainly expect it to be taken into account, but to answer your question, there have been many instances when weve discussed particular issues, stories, policies and editors would have stuck with their original plan to write whatever they were planning to write. The Independent financial governance 8.17 The Independent has in place clear procedures that govern all financial transactions made by staff at the company.366 Manish Malhotra, the IPLs current Finance Director and Company Secretary of Evening Standard Limited told the Inquiry that these procedures reflect the:367 separation between editorial and commercial for that reason its very important that editorial payments are going through the overall corporate and financial governance of the company so that we have clear sight of whats being paid and whos being paid. 8.18 Under this system, payments to casual staff are authorised by the relevant Department Head and have to be approved by the Financial Controller or the Senior Management Accountant.368 Contributions payments (made to freelancers, photographs etc) are made on the payments system and checked by the Finance Department with levels of authorisation required dependent on the amount concerned. The Financial Controller and Senior Management Accountant authorise such payments. Expenses have to be authorised by department heads, and editorial expenses must be authorised by the Managing Editor. These payments are then authorised by the Finance Department in a similar way to contributions payments. No advances are made for UK based expenses.369
362
pp67-68, lines 15-1, Andrew Mullins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-10-January-2012.pdf 363 pp85-86, lines 20-4, Christopher Blackhurst, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-10-January-2012.pdf 364 p3, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Evgeny-Lebedev.pdf 365 p7, lines 18-23, Evgeny Lebedev, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-23-April-2012.pdf 366 p4, para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ManishMalhotra.pdf 367 p76, lines 3-10, Manish Malhotra, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-10-January-2012.pdf 368 p3, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ManishMalhotra.pdf 369 ibid
142
8.19
Mr Malhotra told the Inquiry that there are no mechanisms in place which allow for journalists or other IPL members of staff to make cash payments.370 Internal controls are overseen by the office of the managing editor, who ensures that any payments which are made are:371 proper, are substantiated and, if appropriate, that there is a receipt to support them. The Independent policies and procedures
8.20
IPL has recently introduced a Code of Conduct which brings together a number of policy matters in one document. Mr Blackhurst told the Inquiry that it would have been unlikely for The Independent to have introduced this revised Code, were it not for the exposure of phone hacking and other practices across the British National press. The purpose of the revised Code is to ensure clarity on a range of issues facing journalists.372 The IPLs Finance Director and Company Secretary has explained that the document goes further than the PCC Code, that:373 its a wider document because it covers both commercial and editorial operations. It also goes into the use of hospitality and guidance and policies around that.
8.21
The creation of the Code was triggered by the enactment of the Bribery Act. However, as well as covering anti-bribery it also covers business relationships, social media and data protection.374 IPL has also restated its insistence on staff compliance with the Editors Code of Practice.375 IPLs Code of Conduct details individual financial responsibility within IPL, and the policies on company expenses and hospitability.376 The IPL Code of Conduct also includes a policy on whistle-blowing, which encourages employees to report concerns without fear of reprisal.377 IPL also has a clear disciplinary policy which sets out that employees who are found to have committed acts of gross misconduct are liable for dismissal. Acts of gross misconduct includes theft, dishonesty or deliberate falsification of documents, unauthorised use or disclosure of confidential information and a serious act which breaks mutual trust and confidence or which brings or is likely to bring IPL into disrepute.378 This policy was explained to the Inquiry by Mr Blackhurst in the context of the disciplinary action that has been taken against Johann Hari, a former journalist at The Independent. Mr Hari was accused of plagiarism and producing derogatory comments about fellow journalists on the Wikipedia website.
8.22
pp77-78, lines 25-8, Manish Malhotra, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-10-January-2012.pdf 371 p28, lines 4-5, Manish Malhotra, ibid 372 pp70-71, lines 19-1, Christopher Blackhurst, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-10-January-2012.pdf 373 p80, lines 19-22, Manish Malhotra, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-10-January-2012.pdf 374 p5, para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-AndrewMullins.pdf 375 p6, para 22, ibid 376 http://www.independent.co.uk/service/code-of-conduct-and-complaints-6280644.html 377 http://www.independent.co.uk/service/code-of-conduct-and-complaints-6280644.html 378 p8, para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ManishMalhotra.pdf
370
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8.23
Staff and external contributors are required by contract379 to comply with both the law and with the PCC Code.380 Freelance contracts require that:381 Anyone who supplies material to any of our publications must ensure that their conduct and the material they submit are ethical, legal and proper.
8.24
Other than these guidelines, there are no specific policies in place in relation to the payment for information. Mr Blackhurst has acknowledged that payments are sometimes made for tip-offs for stories carried in The Independents diary page but Mr Blackhurst also stated that he exercises considerable caution with information received in this way. He told the Inquiry that the Independent would:382 only pay, as a point of principle, if subsequently the story checked out. You wouldnt be agreeing and paying Thats not how it works. The Independent management structures and processes
8.25
Mr Blackhurst described The Independent as a relatively small newsroom. The group employs just under 200 journalists across the three titles (the daily, Sunday, and i publication) and a small number of foreign correspondents.383 Letters to the editor are handled between the editor and the managing editor, in the absence of a readers editor. Mr Blackhurst said that The Independent does not have enough resources to merit the appointment of a readers editor at the title.384 The editor is responsible for overseeing processes around the verification of sources in the newsroom. Checks are made by the original reporter, the news editor, the deputy editor and finally the editor, having been through legal scrutiny. Mr Blackhurst told the Inquiry that:385 Im with the news editor, the foreign editor, the deputy editor pretty much all day long, and theyre around me, and its not a case of formal up and down the line requests. If I want to ask a reporter: Wheres the story come from? Ill ask them. I wont wait for the deputy editor to speak to the news editor to speak to the reporter. We havent got all day. I mean, just get on with it.
8.26
8.27
8.28
Freelance writers are generally dealt with by the Heads of Department and very rarely deal directly with a newsroom editor, unless the freelancer is working on a substantive story.386
p3, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ChristopherBlackhurst.pdf 380 p8, para 35,http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ManishMalhotra.pdf 381 p9, para 38, ibid 382 pp96-97, lines 24-12, Christopher Blackhurst, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-10-January-2012.pdf 383 p87, lines 1-8, Christopher Blackhurst, ibid 384 p91, lines 12-24, Christopher Blackhurst, ibid 385 pp94-95, lines 21-4, Christopher Blackhurst, ibid 386 p8, para 34; p9, para 37, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-ofChristopher-Blackhurst.pdf
379
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9. the financial times

9.1 The Financial Times focuses on the detailed and impartial reporting of business and financial issues. Lionel Barber, current editor of the Financial Times, told the Inquiry that as a consequence of this focus, that paper avoids the more populist news items which might be given space in other parts of the UK press.
History
9.2 The Financial Times (FT) was first published in 1888. In 1945 it merged with the Financial News. The FT was acquired by Pearson Plc in 1957 and is now a global newspaper, printed in 18 locations, in three international editions and with estimated global readership of 1.4m across more than 100 countries.387 Pearson is primarily an education publishing company, with publications of educational material accounting for 74% of its revenue. 19% of Pearson revenue is derived from its consumer book publishing arm, with the remaining 7% coming from the FT Group which provides business information both through publication of the FT and digital services. The FT Group, including both FT print and digital services had sales in 2010 of 403m, with operating profit the same year of 60m. Digital revenues accounted for 40% of FT Group revenues. The FT Group employs 2,600 people, of whom 1,600 are based in the UK.388 In February 2012 the FT had a UK circulation of 316,493, making it the third largest selling broadsheet newspaper in the UK after the Daily Telegraph and The Times, giving the FT some 3.5% of the UK national daily newspaper market.389
9.3
9.4 FTL is wholly owned by Pearson Group and as such both the Chief Executive and the editor report to the Chief Executive of Pearson Group. Pearson is a public company and has dual listing on the US and UK stock exchanges.390 The editor of the Financial Times is appointed by the Chief Executive of Pearson Group, who is also the only person who can remove him or her. On financial matters the editor reports to the Chief Executive of the FT. The editor of the FT, Mr Barber,391 has made it clear in evidence to the Inquiry that there is no editorial involvement by Pearson. The Chief Executive of the FT has said that reporting to Pearson provides a further layer of governance,392 but no additional information has been provided on how that relationship works in practice. The FT family consists of a number of different news services. The FT itself and FT.com, where relevant, has according to the FTs own figures,393 a combined paid print and digital circulation of 591,390. This is made up of the FT newspapers daily (global) circulation of 344,583 noted above394 and the 247,000 paying FT digital subscribers. The FT has said that it has a combined print and online average daily readership of 2.1m people worldwide. FT.com has over 4m registered users.
9.5
https://www.financialtimes.net/cgi-bin/eudev.cgi/fess/dummyHtmlPage?pagecode=ABOUT_FT&param=4 http://www.pearson.com/media/files/annual-reports/Pearson_AR10.pdf 389 ABC circulation figures February 2012, http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=48913 &c=1 390 p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ScottHenderson.pdf 391 p7, para 22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lionel-Barber.pdf 392 p3, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-Ridding.pdf 393 http://aboutus.ft.com/corporate-information/ft-company 394 ABC figures as quoted by the Guardian and the FT
388
387
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Financial Times boards 9.6 The FT Board of Directors comprises the editor and Chief Executive of the FT and the managing editors of other parts of the FT family as well as senior Directors with responsibility for finance, HR and communications. There are no independent Directors on the Board.395 The Board is not expected to have knowledge of the sources of stories that appear in FT publications.396 Financial Times financial governance 9.7 The FT group is profitable and has shown growth in profits over the period 2005-2010. Financial Times policies and procedures 9.8 Pearson PLC publishes a Code of Conduct which requires all Pearson employees (and therefore all FT employees) to conduct themselves in accordance with the law and with the ethical principles set out in that Code.397 All Pearson employees are reminded of the Code on an annual basis and required to confirm compliance or identify cases of non-compliance.398 Pearson employees can report breaches of the Code to their manager or in-house legal team. The FT incorporates the Editors Code of Practice into employee contracts and has further, additional requirements in relation to financial reporting and share ownership.399 FT employees are asked by management to sign up to the terms of the Editors Code of Practice and are asked to declare any financial interests in a share register. Evidence has been submitted that demonstrates 75% of FT employees had done so.400 It is the intention of the FT to require all employees to sign up to compliance with the Editors Code on an annual basis.401 The Inquiry was told that management are not aware of any breaches of the Editors Code of Practice at the FT.402 Mr Barber said that journalists at the FT are expected to go beyond what is required in the PCC Code and uphold the highest levels of ethical journalism at his title. To this effect he told the Inquiry that:403 the reason we set such a high bar is that our relationship with our readers -- and they are largely in business and finance, but not exclusively, and diplomacy and academia is one of trust. People have to be able to rely on the Financial Times for accurate information which is set in context, multiple sourced and that they can rely on it because theyre making decisions, important decisions in their respective professions.
9.9
9.10
http://aboutus.ft.com/corporate-information/ft-board p5, para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-Ridding.pdf 397 p3, para 12, ibid 398 p3, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lionel-Barber. pdf; p3, para 10-11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-LisaMacLeod.pdf; p3, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-ofJohn-Ridding.pdf 399 p3, para 13, ibid 400 p3, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lisa-MacLeod.pdf 401 p3, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-Ridding.pdf 402 p4, para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lisa-MacLeod.pdf 403 p5, lines 3-10, Lionel Barber, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-10-January-2012.pdf
396
395
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9.11
The news editor is responsible for ensuring that the relevant editorial checks are made in the FT newsroom. Mr Barber has described the position of the news editor at the FT as one the most critical appointments that I can make as editor.404 Pearson also operates a whistle-blowing hotline called Ethicspoint which allows employees to report breaches of the Pearson code on an anonymous basis.405 However, Mr Barber told the Inquiry that the FT does not offer a similar whistle blowing hotline for breaches of the Editors Code of Practice. Of course, employees are entitled to use the Pearson hotline to raise any concerns they might have, but Mr Barber said that he would expect any issues in relation to such breaches to be brought to the attention of senior management directly.406 Mr Barber spoke about a good culture at the FT and said that he would expect problems to be shared at all levels. He also told the Inquiry that the managing editor operates an open-door policy for staff who may wish to raise any HR issues, and works together with the Financial Times union, to whom individuals can also bring grievances.407 In this regard Mr Barber told the Inquiry that:408 I think the FT should be the gold standard in journalism, and that means that we need to uphold the highest practices, the highest standards of integrity, and that is why we have the Investment Register and why we want to have full compliance from our journalists.
9.12
9.13
9.14
The FT also has in place an anti Bribery and Corruption policy, introduced after the Bribery Act 2010.409 Where an employee might have a concern relating to bribery or corruption at the FT, they are required to raise it with their immediate manager or with the in-house legal or internal audit teams, or to use Ethicspoint to report their concerns, should they wish to do so anonymously. The FT has policies in place regarding approval of payments to third parties and payment of expenses to employees.410 In both cases expenditure within agreed budgets and spending limits are approved by the individual incurring the expenditure and on the basis of appropriate evidence of the expenditure. Generally two individuals will review any expenses claim.411 These processes are checked regularly to ensure compliance.412 The FT states that it does not pay sources for stories, though sometimes reasonable expenses, such as travel, may be reimbursed, though no specific incidences are recalled.413 Whilst the editorial management team is responsible for ensuring editorial staff adhere to the PCC Code of Practice, other policies such as the companys anti-bribery policy are the responsibility of the Company Secretariat team.414
9.15
9.16
pp18-19, lines 19-10, Lionel Barber, ibid p3, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-Ridding.pdf 406 pp15-16, lines 14-6, Lionel Barber, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-10-January-2012.pdf 407 pp15-16, lines 22-3, Lionel Barber, ibid 408 pp10-11, lines 25-5, Lionel Barber, ibid 409 p4, para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-Ridding.pdf 410 p3, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ScottHenderson.pdf 411 p5, para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lisa-MacLeod.pdf 412 p5, para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ScottHenderson.pdf 413 pp5-6, paras 20-21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-LisaMacLeod.pdf 414 p6, para 21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Tim-Bratton.pdf
405
404
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Financial Times management structures and processes 9.17 The FT Management Board are responsible for the corporate and financial governance of the FT. Its operation is entirely separate from all editorial responsibilities which lie with the editor. The FTs finance team is responsible for overseeing the processes of expenses and invoice payments.415 It is the role of the managing editor to ensure the management of the editorial budget, staff management and the general departmental administration of the newsroom.416 The managing editor is also responsible for administering the Investment Register, an internal procedure which ensures that the investment interests of editorial staff are appropriately disclosed.417 Financial Times incentives 9.19 Financial incentives for the Chief Executive are linked to circulation and profitability of the group.418 There are no financial incentives for the editor related to the production of exclusive stories.419
9.18
10. the regional press

10.1 There are 1,167 regional and local newspapers operating in the UK today, including 105 dailies, 15 Sundays, 504 paid weeklies, 533 free weeklies and ten combined weekly titles.420 As of 1 January 2012 there were 87 regional press publishers, including 40 publishers who produce just one title each.421 The top 20 publishers account for 86% of all regional press titles and 97% of total weekly circulation.422 Table 5.1 (below) sets out the twenty most significant regional newspaper groups measured both by weekly circulation and by the number of titles published. Regional newspapers in the UK are read by 32.9 million people (70.7% of all British adults), compared with the 56.8% who read a national newspaper. Significantly, 27% of those who read a regional newspaper do not read a national newspaper.423 In addition to the regional print titles there are also over 1,600 websites and hundreds of other print, digital and broadcast channels produced by local and regional media groups.424 The regional and local newspaper industry also has a significant economic footprint. Over 30,000 people, including 10,000 journalists, are employed by the regional and local press.425 The four largest regional newspaper groups had revenues in 2010 of 1,330m, with total sales and advertising revenue across the industry of 2,191m.426 However, the regional and local newspapers market has been in significant decline for a number of years. Some regional
10.2
10.3
ibid p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lisa-MacLeod.pdf 417 pp2-4, paras 7-13, ibid 418 p6, para 21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-Ridding.pdf 419 p7, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lionel-Barber.pdf 420 http://www.newspapersoc.org.uk/regional-press-structure 421 ibid 422 ibid 423 http://www.newspapersoc.org.uk/readership-and-coverage 424 http://www.newspapersoc.org.uk/circulation-and-distribution 425 http://www.newspapersoc.org.uk/ 426 Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2011, p5, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/07/Claire-Enders-Competitive-pressures-on-the-press.pdf
416
415
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newspapers have seen their circulations halve since 2000 and others have been forced to close entirely. Annual regional newspaper circulation has fallen from just under 3.5bn in 1985 to below 2bn in 2009.427 The factors considered to contribute to this decline in circulation include: increasing access to, and adoption of, internet information sources: economic conditions; and lack of engagement with print media by young adults.428 10.4 The decline in circulation has been matched by a decline in revenue. Print newspapers have two main sources of income copy sales and advertising. Advertising is predominantly in two different forms, display advertising and classified advertising. The local and regional press tend to rely much more heavily on classified advertising than do the nationals, with classified advertising accounting for 41% of revenues among the regional press but only 6.5% of revenues in the national press.429 All three forms of revenue have been under significant pressure over recent years.
Table C2.1
rank weekly circulation 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 group name rank No. of titles 3 1 2 4 17 17 6 15 9 5 7 8 15 14 13 13 17 10 17 12 titles Weekly Circulation 10,087,945 6,428,426 6,247,326 4,690,109 3,817,120 3,503,640 1,725083 1,588,395 1,557,750 1,122,997 973,897 322,269 458,483 437,451 364,153 361,695 261,882 241,609 212,384 206,728 44,609,342 46,034,273
Trinity Mirror plc Johnston Press plc Newsquest Media Group Northcliffe Media Ltd Associated Newspapers Ltd Evening Standard Ltd Archant D.C. Thomson & Co Ltd The Midland News Association Ltd Tindle Newspapers Ltd Iliffe News & Media KM Group Independent News & Media NWN Media Ltd Bullivant Media Ltd CN Group Ltd Irish News Ltd Dunfermline Press Group Topper Newspapers Ltd Clyde & Forth Press Ltd total top 20 publishers total all publishers (87)
140 243 187 91 1 1 66 6 17 73 39 19 6 14 9 10 1 14 1 13 951 1,101
Source: Newspaper Society, January 2012430

427 428
Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2011, p7, ibid Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2011, p8, ibid 429 Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2011, p6, ibid 430 http://newspapersoc.org.uk/sites/default/pdf/Top-20-Publishers_January-2012.pdf
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10.5
C
10.6
Overall advertising revenues in the regional press have fallen steeply, from a high of 3,133m in 2004 to 1,599m in 2010. This is a much steeper decline in advertising revenues than has been seen in the national press or in consumer magazines.431 The decline in advertising revenue has been largely driven by competition from the internet. Classified advertising, in particular, has moved online, with the share of classified advertising online rising from 4% in 2002 to over 60% in 2010, and the printed press share falling commensurately from 96% to under 40% in the same timeframe. That trend is predicted to continue, with the internet accounting for over 80% of classified advertising by 2015.432 Display advertising has also moved online, but the trend is not as marked as is the case with classified advertising.433 The net result of these changes is that revenues in regional and local newspaper publishing have been very hard hit. Trinity Mirrors regional division saw revenues fall by 47% between 2005 and 2010, while Newquest has seen revenues fall by 56% over the same timeframe and Northcliffe has seen its revenues fall by 50%. Johnston Press appears to have suffered less over the period, with revenues falling only by 23%, but it is clear that conditions for regional and local newsgroups are very difficult. Despite this bleak picture, regional news provision remains essentially profitable, with the three of the top four regional newspaper groups for which figures are available posting profits of 154m between them in 2010.434 Sly Bailey, then Chief Executive of Trinity Mirror, told the Inquiry that, in between her submission of written evidence to the Inquiry on 13 October 2011, and her appearance at the Inquiry on 16 January 2012, the company had reduced the number of regional titles it publishes from 160 to 140.435 Ms Bailey indicated that Trinity Mirrors regional business was facing structural challenges, with the competition from the internet and the proliferation of new connected devices, as well as cyclical challenges from the state of the economy. She said that the cyclical challenges had hit the hardest.436 The effect of the economic downturn has meant, for instance that whereas at its peak Trinity Mirror had seen 150m in revenue from recruitment advertising, this figure had reduced to 20m last year.437 Ms Bailey said that Trinity Mirrors response to the current situation was to restructure and re-engineer the industry using technology, rather than trying to do the same things with fewer people.438 This picture was echoed by editors of regional newspaper in their evidence to the Inquiry.439 Maria McGeoghan, editor of the Trinity Mirror Regional title, the Manchester Evening News, told the Inquiry that:440 circulation on the Manchester Evening News and the paid for weekly titles is declining, but our website has got 1.5 million unique users every month and is growing, and I think the challenge for all of us is how we can make more money out of that.
10.7
10.8
Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2011, p14, http://www.levesoninquiry.org. uk/wp-content/uploads/2012/07/Claire-Enders-Competitive-pressures-on-the-press.pdf 432 Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2011, p15, ibid 433 Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2011, p13, ibid 434 Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2011, p18, ibid 435 p75, lines 2-5, Sly Bailey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-AfternoonHearing-16-January-20121.pdf 436 p81, lines 4-13, Sly Bailey, ibid 437 p83, lines 2-5, Sly Bailey, ibid 438 p86, lines 2-5, Sly Bailey, ibid 439 pp98-103, lines 1-21, Regional Editors, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-18-January-2012.pdf; pp59-62, lines 4-15 Regional Editors http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/01/Transcript-of-Afternoon-Hearing-18-January-2012.pdf 440 pp60-61, lines 22-1, Regional Editors, ibid
431
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10.9
Over recent years the regional and national press has been concerned about, and lobbied on, a number of public policy issues that impact on them. These have included: changes in the rules governing statutory notices; local authorities publishing their own free newssheets, in particular where they are partially advertising funded; and the media merger rules as they apply to the transfer of ownership of newspaper at the regional and local level.441 This last issue is considered to be the most significant and was raised by Mr Bailey in her evidence to the Inquiry.442
10.10 The exigencies of the economic and structural problems faced by the regional newspaper industry have led to a substantial extent to groups looking to consolidate and rationalise their holdings. Savings can be achieved where titles that are geographically close can achieve synergies through working together. This has led to regional newspaper groups looking to consolidate their holdings, in particular with an eye to geographical rationalisation. The regional newspaper industry has been concerned that the Office of Fair Trading (OFT) is inclined to consider proposals for newspaper mergers in the context of the local newspaper market only, rather than taking account of the wider competition from, in particular, internet services. This, the industry argues, leads to potential regional newspaper transfers that could allow titles that would otherwise be uneconomic and may have to close to survive under different ownership. In 2009 the OFT conducted a review of the media merger regime as it applies to local and regional newspapers, and concluded that:443 the current merger regime, which is broadly the same for newspapers as for other industries, is well placed to take into account developments such as competition from the internet because it is evidence-based and capable of reflecting market realities. The regime is also flexible in that it can take account of valid failing firm arguments, as well as efficiencies and any other benefits to customers brought about through a merger. The OFT has therefore recommended that no legislative changes are needed to the media merger regime. The OFT proposes that it will formally seek Ofcoms view in future newspaper merger cases, given its specific sector knowledge in the UK. 10.11 The first proposed regional newspaper transaction since this new process involving Ofcom was introduced was the proposal of the Kent Messenger Group to acquire seven local weekly titles from Northcliffe Media Limited. Ofcom conducted a Local Media Assessment which found that the merger may provide the opportunity to rationalise costs, maintain quality and investment, and provide a sounder commercial base from which to address long-term structural change. The OFT noted that it was able only to consider consumer benefits and that Ofcom was not able to guarantee that in the longer term any benefits arising from the transaction would accrue to consumers rather than to shareholders. In the light of this the OFT said that it could not conclude that the evidence presented to it was sufficiently compelling to indicate that those benefits can and will only be achieved through the merger. The OFT also said that they had not been shown any compelling evidence that in the absence of the transaction the titles would all continue to exist as economic going concerns. The OFT therefore concluded on 18 October 2011 that the merger should be referred to the Competition Commission.444 Within a month of the OFT decision Northcliffe had announced the closure of two of the titles concerned, the Medway News and the East Kent Gazette.445
p101, lines 15- 25, Regional Editors, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-18-January-2012.pdf 442 pp86-87, lines 14-17, Sly Bailey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-16-January-20121.pdf 443 http://www.oft.gov.uk/shared_oft/mergers_ea02/oft1091.pdf 444 http://www.oft.gov.uk/shared_oft/mergers_ea02/2011/kent-messenger.pdf 445 http://www.guardian.co.uk/media/greenslade/2011/nov/25/northcliffe-media-downturn
441
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10.12 In relation to regional and local newspapers, I do not make a specific recommendation but I suggest that the Government should look urgently as what action it might be able take to help safeguard the ongoing viability of this much valued and important part of the British press. It is clear to me that local, high-quality and trusted newspapers are good for our communities, our identity and our democracy and play an important social role. However, this issue has not been covered in any detail by the Inquiry and, although the extent and nature of the problem has been made clear, the Inquiry has heard no evidence as to how it might be addressed. I recognise that there is no simple solution to this issue. I also recognise that many efforts have been made over the years to try to find a solution, and that many of the options for public support that have been canvassed are not appropriate. This does not make the need to find a solution any less urgent. I should also, perhaps, make it clear that the regulatory model proposed later in this Report should not provide an added burden to the regional and local press.
11. Magazines and periodicals

11.1 The UK magazine market is substantial. There are some 3,000 consumer titles in the UK (this is separate from the 4,765 business to business magazines). The magazine industry has a value of 4.1bn, with an estimated 1.4bn copies sold or distributed annually, and consumers spending some 1.9bn a year buying magazines.446 ABC monitors some 515 consumer magazines published by 161 publishers with a total circulation of 54,751,905. 110 of those 161 publishers publish only one title, with a further 36 publishing two to four titles. The four most prolific publishers publish 181 titles between them. As is to be expected in such a broad and varied market, circulation varies enormously. Of the seven consumer magazines that have circulation of over a million, four are supermarket magazines, two are TV listings magazines and the other is the National Trust Magazine. Other magazines circulated to members of particular associations (for example, Saga or RSPB) have very high individual circulation. Beyond that there is no obvious pattern or rhythm to levels of circulation, with lifestyle, health and celebrity magazines varying considerably in popularity by title. Most of these consumer magazines are specialist interest titles of varying sorts and are not engaged in the sort of news and current affairs reporting, or reporting on individuals, with which the Inquiry is primarily concerned. The magazines classified by ABC as womens interest weeklies include some of those best known for their coverage of celebrities and celebrity lifestyles. These 24 titles are published by 11 publishers and have a combined circulation of just over 7m.447 According to the Periodical Publishers Association (PPA) magazines are read by 87% of the population and, unlike newspapers, are particularly popular among the young, with at least 91% of 15-24 year olds reading a magazine. Whereas newspapers are essentially ephemeral, and understandably have developed a reputation as tomorrows fish and chip wrappers, magazines are kept and referred to because they are considered to be a trusted friend.448 Magazines have not been hit as hard by either structural or cyclical factors. Consumer magazine circulation has fallen, from around 1.5bn in 1985 to just over 1bn in 2009.449 Advertising revenues, having held steady at around 750m from 2000 to 2008, fell steeply
11.2
11.3
11.4
http://www.ppa.co.uk/retail/magazine-market-data/~/media/PPANew/Retail/Magazine%20Market%20Data/ Market%20Snapshot.ashx 447 ABC magazine circulation figures 2012, http://www.pressgazette.co.uk/node/49860 448 http://www.ppa.co.uk/marketing/effectiveness/10-things-to-love-about-magazines/ 449 Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2011, p7, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/07/Claire-Enders-Competitive-pressures-on-the-press.pdf
446
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in 2009 as the economic downturn hit, to just over 500m, and have not yet recovered.450 A PPA survey in 2010 found that magazine publishers in both the business to business and the consumer market were positive about the future 78% of consumer magazine publishers were profitable, with turnover in 2011 projected to rise by over 5% and 97% of publishers expected profitability to remain steady or improve.451 This confidence was echoed by the editors of Heat, OK! and Hello! Magazines when they gave evidence to the Inquiry.452
Editorial practices and ethics of the magazine titles

11.5 The Inquiry has heard evidence from the editors of three of the most popular weekly magazine titles in Britain: Heat, OK! and Hello! Magazines. It has been evident that there are some similarities with newspapers in terms of practices of the magazine newsroom, awareness and application of the Editors Code of Practice, as well as the impact of technological change and the phenomenal growth of the internet as a source of news and information. Heat Magazine employs 32 members of staff. These include three news desk reporters, one features editor and a number of reviews editors. The rest of the team comprise the art and production team.453 Hello! Magazine has forty employees, 19 of whom are either journalists or subeditors.454 OK! Magazine use only in-house journalists and employ 25 members of staff.455
11.6
OK! Magazine
11.7 Northern and Shell owned OK! magazine is internationally one of best known and most read celebrity weekly magazines,456 and has a weekly UK circulation of 473,000, and an estimated readership of over 2m. The OK! Magazine website is managed and edited separately and has its own editor. Lisa Byrne, the current editor of OK! Magazine described her title as:457 basically an exclusive invitation into the rich and famous and celebrities in this country and the States with worldwide celebrities. So we invite our readers into peoples homes, to their babies christenings, first pictures of their children, amazing exclusive weddings, so -- even the parties are exclusive, so its just a fantastic aspirational magazine for readers to have a look at celebrities and their lifestyles. 11.8 Ms Byrne told the Inquiry that the availability of news on the Internet has directly impacted the circulation celebrity magazines. She said that OK! Magazine now focuses less on celebrity news, and has shifted its emphasis on more exclusive features and stories which are less readily available online.458
Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2011, p14, ibid http://staging.ppa.co.uk/ppa-marketing/feature-article-archive/publishing-futures-publishers-gear-up-for-a-year-ofgrowth/ 452 pp7-8, lines 5-2, Lucie Cave, Rosie Nixon and Lisa Byrne, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Transcript-of-Morning-Hearing-18-January-2012.pdf 453 p6, lines 14-17, Lucie Cave, ibid 454 p6, lines 18-22, Rosie Nixon, ibid 455 p6, lines 23-24, Lisa Byrne, ibid 456 p2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-RichardDesmond.pdf 457 p5, lines 8-16, Lisa Byrne http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-MorningHearing-18-January-2012.pdf 458 pp7-8, lines 20-2, Lisa Byrne, ibid
451
450
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11.9
The majority of content that is published in OK! Magazine is sourced either directly from celebrities or through their agents. Consent is therefore freely offered in most cases for the publication of such content. Ms Byrne told the Inquiry that approximately 80% of content is produced with the direct consent of those celebrities involved.459 The remainder of content is either bought-in interviews, celebrity features, news round-ups and celebrity columns.460 Such material is subject to the same processes of verification that the Inquiry has been told is common to all newsrooms; checks are made by sub-editors, senior editors and the legal department. Ms Byrne said that she is aware of almost every story that goes in the magazine.461
11.10 The conduct of staff working at OK! Magazine is not subject to a specific code of practice. Nor does OK! Magazine subscribe to the PCC. However, Ms Byrne told the Inquiry that she expects her journalists to adhere to the terms of the Editors Code of Practice. She argued that the efficacy of the reporting in OK! Magazine is dependent on a strict adherence to the Editors Code of Practice, as this is vital to maintaining the relationships that the title has built up with the celebrities on which they report.462 Ms Byrne also stressed the importance of ethics to the OK! Magazine newsroom, as well as her role in overseeing that ethical practices and standards are upheld on a day to day basis.
Heat Magazine
11.11 Heat Magazine is owned by Bauer Consumer Media Limited,463 which is a UK division of the German owned Publishing House, Bauer Media Group.464 The magazine attracts approximately 320,000 readers a week. Heat Magazine also operates a website, which has been described by current editor, Lucie Cave, as an important feature of the Heat brand. The website attracts over 1m unique users each month. Ms Cave described the role of Heat Magazine:465 to cover the celebrities of the day in an entertaining fashion with an emphasis on interviews and amazing photo shoots that we do ourselves against a backdrop or a highly credible entertainment, TV and reviews section. 11.12 In addition to requiring staff to abide by the terms of the Editors Code of Practice, Heat Magazine also require staff to adhere to the Bauer Groups Best Practice Guidelines. Ms Cave stated to the Inquiry her expectations around journalistic standards and practice. Ms Cave fully expects all staff working for Heat Magazine to follow the Code and Practice and the Bauer guidelines as well as fully obeying the criminal and civil law. The Bauer Group Best Practice Guidelines are reviewed on a regular basis and circulated to the newsroom. 11.13 Ms Cave told the Inquiry that content is subject to routine checks by editors during the publication process, and external lawyers provide advice on an ad hoc basis as appropriate. The magazine publishes some content that originates from PR material, although Ms Cave was not able to quantify exactly proportion of the magazine is derived from such material.
p33, lines 3-4, Lisa Byrne, ibid p2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lisa-Byrne.pdf 461 p2, para 4, ibid 462 p3, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lisa-Byrne.pdf 463 p1, para 1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lucie-Cave.pdf 464 http://www.bauermedia.co.uk/about 465 p4, lines 13-17, Lucie Cave, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-MorningHearing-18-January-2012.pdf
460
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Hello! Magazine
11.14 Hello! Magazine is owned by the Spanish Company HOLA, S.L., an independently owned family business.466 Between January and June 2011, Hello! Magazine recorded average total sales of 413,311 copies per week.467 The title also has an online website, which is independent from the magazine and is edited by a separate editor. 11.15 Rosie Nixon, joint editor of Hello! Magazine described the title as promoting the positive portrayal of celebrity personalities. Ms Nixon said that the unwritten philosophy of Hello! Magazine lies in the phrase la spuma de la vida (the froth of life), words attributed to the founder of the company, Eduardo Perezs, grandfather.468 Ms Nixon has told the Inquiry that:469 the function of the magazine is to entertain. Its to provide an insight into the lives of the rich and the famous. we take a look at the lighter sides of the personalities that we feature. 11.16 Hello! Magazine publishes exclusive stories. These are agreed in advance with the celebrities or public figures concerned. Additionally, the magazine also publishes some news-based stories obtained through a variety of PR agencies. She argued that as a weekly publication, Hello! Magazine is primarily focused on building long-term relationships with personalities, rather than getting one-off scoops.470 11.17 Journalists at Hello! Magazine are expected to abide by the PCC Editors Code of Practice. However, Ms Nixon told the Inquiry that there are no formal internal documents relating to corporate of editorial governance beyond the PCC Code.471 The title also does not have a formal policy in relation to payments to external sources, but Ms Nixon told the Inquiry that as a rule it does not make cash payments for any information. The majority of the magazines content is produced in-house by pay-roll staff; a smaller amount of material is generated by freelance journalists, whose work is invoiced and processed according to the companys procurement policies.472 Hello! Magazine makes payments for exclusive stories, and any fees are discussed and agreed with HOLA, S.L.s CEO.
p1, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Rosie-Nixon.pdf p7, lines 9-11, Rosie Nixon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-MorningHearing-18-January-2012.pdf 468 pp10-11, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-RosieNixon.pdf 469 pp4-5, lines 19-2, Rosie Nixon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-18-January-2012.pdf 470 pp12-13, para 30, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-RosieNixon.pdf 471 pp10-11, para 10, ibid 472 p13, para 33, ibid
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Chapter 3 aLterNatIVe NeWS prOVIDerS

1. Introduction C
1.1 For centuries the printed press was the only medium that brought news to the people. The introduction of broadcasting in the 1920s brought a new voice, but one that had a very different relationship with the public than that of the newspapers with their readers. Technological changes in the last few decades have completely revolutionised the market in which newspapers are working, leading to the fragmentation not only in readership and advertising but also the introduction of news providers that are not currently a part of the self-regulatory, or indeed any other regulatory, regime.
2. Broadcasters
2.1 The main source of news in the UK is broadcasting, with 59% of news consumption coming from the three main broadcasters (as opposed to 29% from the six main national newspaper groups).1 At the same time broadcasters reach a higher proportion of the public than any individual newspaper title, with 81% of those in the UK who consume news receiving some of their news from the BBC.2 96% of UK households have digital TV,3 offering 50 TV channels without subscription4 (and many more with subscription), including four free to view 24 hour news channels, with at least another six5 24 hour news channels in some subscription packages. With the significant exception of the BBC these broadcasters are either advertising or subscription funded. This means that broadcasters are competing with newspapers for sales, for audience time, and for advertising revenue. Broadcasters are regulated by Ofcom, operating under statutory powers, and are subject to the Ofcoms Broadcasting Code.
2.2
The BBC
2.3 The BBC is a national public service broadcaster which is established by a Royal Charter6 (this was last renewed in July 2006, and came into force on 1 January 2007)7 and a Framework Agreement.8 The Royal Charter sets out the objectives and purpose of the BBC.9 There also
http://stakeholders.ofcom.org.uk/binaries/consultations/public-interest-test-nov2010/statement/public-interest-testreport.pdf 2 http://stakeholders.ofcom.org.uk/binaries/consultations/public-interest-test-nov2010/statement/public-interest-testreport.pdf 3 http://stakeholders.ofcom.org.uk/binaries/research/cmr/cmr11/UK_Doc_Section_1.pdf 4 http://www.freeview.co.uk/ 5 http://www.sky.com/products/tv-packs/extra-channels/ 6 http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/about/how_we_govern/charter.pdf 7 p1, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Mark-Thompson. pdf 8 http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/about/how_we_govern/agreement.pdf 9 pp5-6, lines 23-4, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-23-January-2012.pdf; p2, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Witness-Statement-of-Lord-Patten1.pdf. http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/about/how_we_ govern/charter.pdf
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exists a Framework Agreement between the BBC and the Secretary of State for Culture, Media and Sport, which sets out the provisions of the BBCs funding and regulatory duties.10 2.4 The BBC Trust is the sovereign body, responsible for making overall strategic decisions for the BBC. It has full oversight of the BBC Executive Board.11 Lord Patten, the current Chair of the BBC Trust, has made a clear distinction between the responsibilities of the Trust and the BBC Executive. As a sovereign body, the Executive is required to act in accordance with the governance set out by the Trust; equally, the Trust must not exercise the functions that are the responsibility of the Executive.12 A number of individual Boards report into the Executive Board, including the Editorial Standards Board. This is the main editorial forum for the discussion of editorial standards issues facing the BBC by senior editors, and where responses to such issues are formulated and discussed.13 The function of the Editorial Standards Board is therefore to monitor and review the editorial compliance systems which are in place at the BBC, in tandem with the Complaints Management Board.14 The former Director General of the BBC, Mark Thompson, explained to the Inquiry that he also served as the Head of the BBCs Executive Board. As Editor-in-Chief he was directly responsible for the entirely of the BBCs editorial and creative output.15 Mr Thompson described the BBC in the following terms:16 the character of public service broadcasting and the character of the BBCs editorial mission is different in many respects from that of some newspapers. The kinds [sic] of stories we do are different. In matters of privacy, our focus, when there is a debate about intrusions of privacy, are, I think without exception, in a journalistic context, around investigations into matters which I think everyone would accept were of public interest. we dont do any investigations into peoples private lives for their own sake. 2.7 The BBC meets its public purpose obligations, set out in the Royal Charter, through the distribution of information, education and entertainment. These are delivered on multiple platforms and include television, radio and online services.17 Corporate Governance 2.8 The BBCs Editorial Guidelines set out the overarching principles underpinning editorial management at the corporation as well as defining the appropriate structure for that management. These Guidelines, most recently revised in 2010 following a public consultation
2.5
2.6
p3, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord-Patten1.pdf pp5-6, lines 23-4, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-23-January-2012.pdf; p3, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Witness-Statement-of-Lord-Patten1.pdf 12 p5, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord-Patten1. pdf 13 p4, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-MarkThompson.pdf 14 ibid 15 pp2-3, para 7, ibid 16 pp19-20, lines 23-8, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-23-January-2012.pdf 17 Article 5 of the Royal Charter, http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/about/how_we_govern/charter. pdf
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process, are founded on the BBCs stated editorial values.18 The Trust is responsible for commissioning these Guidelines from the Executive Board. In addition to the Guidelines, the BBC must also comply with sections of Ofcoms statutory Broadcasting Code,19 including the Code on fairness and privacy. This safeguards the treatment of individuals and organisations in programmes broadcasted by the BBC. Compliance with the BBCs Editorial Guidelines is the responsibility of the individual editor and producer.20 In addition to the Editorial Guidelines, there are separate Producers Guidelines. Certain programmes, particularly those which rely on investigative journalism, also have to abide by relevant individual handbooks. The BBC has separate policies relating to complaints, data protection, and fraud management and ant-bribery. Different units at the BBC have responsibility for the general oversight of specific regulatory areas. For example, Fraud Management is overseen by the Investigations Unit under the overall supervision of the Chief Operating Officer and the Chief Financial Officer. Data Protection is overseen by the Information and Compliance Unit. With effect from 1 October 2007, the Controller, Fair Trading was appointed as BBC Compliance Officer. There is also a Central Compliance Unit (also established in 2007) which is responsible for monitoring, improving and reporting on the BBCs compliance obligations. The Compliance Unit is not responsible for delivering compliance but is responsible for ensuring that an appropriate framework is in place to minimise compliance failures. 21 Editorial policy compliance and financial compliance fall outside the remit of the Compliance Units functions. Regulation of the BBC 2.10 The BBC is regulated by the BBC Trust. The Trust has a supervisory role which is generally restricted to the regulation of broadcast content after it has been transmitted.22 Lord Patten told the Inquiry that:23 I would never ever seek to interfere with one of [Mr Thompsons] editorial decisions. I wouldnt, for example, ever ask to see a BBC programme, at least not in conceivable circumstances, before it was broadcast, if the Director General had decided it was worth broadcasting. 2.11 However, Lord Patten also told us that there were occasions where the Trust would consider the principles of the Editorial Guidelines prior to transmission.24 The Trust exists to hold the Executive to account, ensuring that the BBCs performance is in line with the public purpose set out in the Royal Charter. This includes: the BBCs compliance with general law; regulatory
pp6-7, lines 25-1, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-23-January-2012.pdf 19 http://stakeholders.ofcom.org.uk/broadcasting/broadcast-codes/broadcast-code/ 20 Section 2 of the BBC Editorial Guidelines, http://www.bbc.co.uk/editorialguidelines/page/guidelines-usingroles-responsibilities; p4, paras 3.1-3.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/WitnessStatement-of-Robert-Peston.pdf; p3, para 3.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Witness-Statement-of-Nicholas-Robinson.pdf 21 p5, para 21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Summary-of-Evidence-presented-bythe-BBC.pdf 22 p3, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-MarkThompson.pdf; pp5-6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-LordPatten1.pdf 23 pp103-104, lines 24-3, Lord Patten, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-23-January-2012.pdf 24 p8, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord-Patten1. pdf
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requirements; as well as the policies set by the Trust, including editorial guidelines and other codes, strategies and other priorities. To this effect, the duty of the Trust is to ensure that the BBC functions in the interest of licence fee payers.25 2.12 Ofcom is responsible for the regulation of some aspects of the content produced by the BBC. This responsibility is defined in the Royal Charter and Framework Agreement, and the Communications Act 2003.26 Therefore, the regulatory jurisdiction of the Trust and Ofcom overlap in respect of this content. Ofcom exercises a regulatory function in relation to the BBCs commercial activities, notably where they impact on the wider media market. All BBC commercial services must comply with the Ofcom Statutory Code, and Article 29 of the Framework Agreement requires the BBC Trust and Ofcom to create a Joint Steering Group in respect of market impact assessments.27 However, the BBC Trust assesses the market impact of non-services in-house (applying a Public Value Test). There is a clear delegation of function to Ofcom in relation to the assessment of the market impact of the BBCs commercial activities. This is accompanied by an express recognition that Ofcom could play a greater role and offer assistance and expertise to the BBC, including in relation to areas which currently fall within the remit of the BBC Trust (such as non services). Ofcom also exercises a role of oversight in relation to the editorial content of BBC output, specifically in relation to privacy and fairness. Where Ofcom finds a breach of the privacy or fairness sections of its Code, it may require the BBC to broadcast a statement of its findings.28 Further, should Ofcom find that the Code has been breached seriously, deliberately, repeatedly, or recklessly,29 it can impose sanctions which range from a requirement to broadcast a correction or statement of finding to a fine of up to 250,000.30 Guidance on right to reply expressly refers to the requirement under the Ofcom Broadcasting Code to afford the person a timely opportunity to respond.31 The Inquiry has heard evidence of situations where editorial incidents have taken place, which have led the BBC Trust to commission independent investigations into apparent breaches of the Editorial Guidelines, and the decision to impose relevant sanctions.32 The scandal around the misuse of premium rate phone lines by the BBC in 2007,33 in which it was revealed that viewers had been invited to call premium rate numbers in order to enter competitions on programmes that had, in fact, been pre-recorded, is an example. The BBC Executive proposed an action plan and the BBC Trust commissioned an independent report by Ronald Neil. Mr Neil was appointed an independent editorial adviser to the Trust in order to review the Executives action plan. This resulted in the development of new training programmes, including the BBC
2.13
2.14
p2, para 7; p5, paras 14-15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-ofLord-Patten1.pdf 26 p3, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Mark-Thompson. pdf 27 Section 19 of the BBC Editorial Guidelines, http://www.bbc.co.uk/editorialguidelines/page/guidelines-accountabilityofcom/ 28 ibid 29 ibid 30 ibid 31 Section 6 of the BBC Editorial Guidelines, http://www.bbc.co.uk/editorialguidelines/page/guidelines-fairness-rightof-reply// 32 pp11-12, para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-LordPatten1.pdf 33 pp53-54, lines 23-23, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-23-January-2012.pdf
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Academy.34 In the interim, audience phone-ins were suspended and a new Interactive Advice and Compliance Unit was created to look at audience interaction with the BBC. 2.15 In October 2008, two radio presenters, Russell Brand and Jonathan Ross, made unacceptable phone calls to Andrew Sachs in the course of a radio programme aired in that month.35 In December 2008, BBC Management announced an action plan to address the editorial failings which had led to the programme being broadcast.36 The progress made under this action plan was then subject to an independent review carried out by Tony Stoller (former Chief Executive of the Radio Authority) and Tim Suter (former broadcasting partner and Board member at Ofcom) for the BBC Trust.37 Both the BBC Executive and the BBC Trust reported on the findings of that independent review. Speaking to the importance to the BBC of addressing these failings in editorial conduct, Mr Thompson told the Inquiry about his role in informing the public of the necessary controls that have since been implemented, that: 38 its fundamental to my duty in this role. I think my job is to to not just to sit on top of a management machine and try and optimise it for editorial compliance thats, you know, in a senses, part of what one has to do to try and get the right result but also to take responsibility for what the BBC broadcast and also to take personal responsibility for occasions when we have fallen short of our high standards. 2.17 The recent revelations of sexual abuse by Jimmy Savile, and decisions around the Newsnight investigation into the matter, have raised questions in some quarters as to the effectiveness of broadcasting regulation and the internal governance systems within the BBC. None of this is a matter for this Inquiry, and there are separate inquiries into the specific issues. I merely note that, without in any way prejudging any of those investigations, the original Newsnight investigations, the ITV documentary that ultimately revealed the allegations, and the subsequent Panorama programme that investigated the handling of the matter within the BBC, were produced within the constraints of broadcasting regulation, not by the print press. Any attempt, therefore, to suggest that broadcasting regulation has had any part in constraining reporting on the matter is simply not borne out by the facts. Complaints system 2.18 The BBC is required to comply with the Royal Charter and the Framework Agreement. Complaints to the BBC therefore have an important role to play:39 The BBCs complaints handling framework (including appeals to the Trust) is intended to provide appropriate, proportionate and cost effective methods of securing that that BBC complies with its obligations and that remedies are provided which are proportionate and related to any alleged non-compliance.
pp55-56, lines 16-7, Mark Thompson, ibid; p12, para 34, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Lord-Patten1.pdf 35 p12, para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord-Patten1. pdf 36 pp57-58, lines 13-13; p59, lines 1-16, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Transcript-of-Morning-Hearing-23-January-2012.pdf 37 p12, para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord-Patten1. pdf 38 p56, lines 11-19, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-23-January-2012.pdf 39 p27, para 52.3, http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/about/how_we_govern/charter.pdf
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The Trust has the role of final arbiter in appropriate appeals, and has responsibility for setting the BBCs complaint framework.40 A Trust Protocol is established by the Trust, which oversees the procedures for specific areas of complaint, including editorial complaints.41 This is to ensure a clear division of responsibilities between the Trust and the Executive. The Trust does not have a role in handling or adjudicating upon individual complaints in the first instance, unless the complaint is concerning the act or omission of the Trust itself.42 In this regard, the responsibility as final arbiter is delegated to the Editorial Standards Committee. Any BBC viewer who is dissatisfied with any of the content broadcasted by the BBC may submit their complaint directly to the Corporation. Complaints that relate to fairness or privacy can also be made to Ofcom, in line with their regulatory jurisdiction over this form of content. Although the complainant can submit complaints relating to impartiality or accuracy issues to Ofcom,43 it is unlikely that Ofcom would entertain these types of complaints. Lord Patten told the Inquiry that, in practice, Ofcom would inform the complainant that such a complaint could be dealt with by the BBC.44 Equally, the Editorial Standards Committee is unlikely to consider a fairness and privacy or standards matter which overlaps with the regulatory responsibilities of Ofcom, until Ofcom has completed its own processes.45 Lord Patten explained the nature of the complaints system, whereby viewer complaints are dealt with at the first stage by the executives information department (possibly including the producers of the programme in question itself). Should no resolution result from this first stage of mediation, viewers can take complaints to a second stage process where they are handled by the complaints unit, governed by the Complaints Management Board (which reports directly to the BBC Direction Group).46 The last stage is the process of appeal to the Trust, should the complaint be unresolved to the satisfaction of the viewer.47 There is a recognition that the complaints system requires improvement, particularly in order to speed up the process of reply. Lord Pattens review of BBC Governance expressly acknowledged licence fee payers had expressed concerns that the current system was too complicated and too slow. He told the Inquiry that he has recommended the appointment of a chief of editorial complaints, of corrections,48 whose role would be to ensure that the system was improved and operated in a transparent manner. The Governance Report concluded that the BBC should publish a single page guide explaining where complainants should go to complain about BBC broadcast content or services. Lord Patten told the Inquiry that the BBC will work with Ofcom to ensure there is common language in the guide to explain in what circumstances complainants may complain to Ofcom. Other recommendations from the Governance Review include the streamlining of the appeals process and regular
2.20
2.21
2.22
pp47-48, lines 25-2, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-23-January-2012.pdf 41 p8, para 25, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord-Patten1. pdf 42 p10, para 31, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-MarkThompson.pdf 43 p9, para 30, ibid 44 pp10-11, para 30, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-LordPatten1.pdf 45 ibid 46 p11, para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-MarkThompson.pdf; pp105-106, lines 12-1, Lord Patten, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-23-January-2012.pdf 47 pp105-106, lines 12-1, Lord Patten, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-23-January-2012.pdf 48 p106, lines 7-8, Lord Patten, ibid
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impartiality reviews. Concerns were also raised about the correction of mistakes made online on the BBC website. 2.23 In 2007, the BBC Editorial Standards Committee recorded that 94% of complaints had been dealt with within ten working days. In this regard, Mr Thompson informed the Inquiry that:49 The BBC receives well over a million contacts from the public every year, of which only a relatively small proportion are complaints, but that still adds up to something like 240,000 complaints a year, of which the overwhelming majority are responded to very quickly. We have a target of responding in ten days. I think were currently at 93,94 per cent of that target, and in, again, the overwhelming majority of cases, the complaint is satisfactorily dealt with at that stage.
ITN
2.24 ITN is a news provider responsible for the production of the news programme for the broadcast channel, ITV. ITN also produce Channel 4 News, through a contractual agreement between ITN and Channel 4.50 The Chair of ITN, Maggie Carver, is responsible for the organisation, but delegates editorial matters to the Chief Executive Officer, John Hardie, who is responsible for the management of editors of both ITV News and Channel 4 News.51 Ms Carver is responsible for ensuring that the corporate governance set out by the company is adhered to by staff. In part, this is done through the ITNs Compliance Manual, the ITN Health and Safety Manual and the Ofcom Code.52 Compliance at ITN is the responsibility of the Head of Compliance, John Battle.53 Mr Battle is author of the Compliance Manual, first published in July 2004. The Compliance Manual sets out the industry regulations that affect news reporting, the main areas of laws affecting journalism such as libel, copyright, privacy and contempt of court and internal ITN standards and procedures. 54 This manual is the centrepiece guidance issued to staff at ITN and forms the basis of ITN staff training. ITN recently reviewed its Compliance Manual in light of allegations of phone hacking, as well as allegations of payments to public officials by journalists and others working at the NoTW. Although Jim Gray, Editor of Channel 4 News, told the Inquiry that the review of the Compliance Manual was regular procedure, he explained that additionally as part of the process triggered by this Inquiry, we have held an independent external Inquiry into ITNs journalistic practices and some the [sic] findings of that will feature in the new Compliance Manual. 55 Mr Battle also gave evidence to this effect, stating that:56
2.25
2.26
pp49-50, lines 10-18, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-23-January-2012.pdf 50 p4, para 8b, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-Battle.pdf 51 p1, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Maggie-Carver. pdf 52 p2, para 4, ibid 53 p1, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Tom-Bradby.pdf; p1, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Gary-Gibbon.pdf 54 p5, para 8h, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-Battle.pdf 55 pp35-36, lines 24-2, Jim Gray, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-23-January-2012.pdf 56 p60, lines 17-25, John Battle, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-23-January-2012.pdf
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Its fair to say that as a grown-up and professional organisation, wed have to have on board the Inquiry and whats been discussed here and within the news. There have been some tightening up procedures, tilting, as you said this morning, sir, towards better regulation. I dont think theres been substantive changes as a result of this Inquiry but it also includes a lot of updates on other issues, such as Twittering in court or online posting, so its an update.
Channel 4 News
2.27 Mr Gray is responsible for the entirety of editorial content of Channel 4 News, and for upholding relevant policies to ensure that journalists and individual editors at Channel 4 News are required to comply with the ITN Compliance Manual.57 Mr Gray reports directly to Mr Hardie, ITNs Chief Executive Officer. Mr Gray told the Inquiry that Channel 4 News applied similar principles to the Omand principles,58 which are a whole series of tests about the proportionality of what is being proposed matches the level of gravity of what the story may be.59 Mr Gray describes Channel 4 News as a public service news broadcaster with an editorial focus on news that is in the public interest. He has said that consideration is given as a matter course to issues of privacy, consent, and public interest; all of which are built into the ITN Compliance Manual.60 He also told the Inquiry that there is a culture at Channel 4 News of behaving ethically and acceptance of journalists being held to account for their reporting. Mr Gray said in this regard that:61 We dont want to cause any problems, and we certainly dont want so [sic] have any incoming attack on our reputation or integrity which would then go forward to possibly damage Channel 4s repute, which we are contractually obliged to uphold and we must uphold and we want to. Corporate governance at ITN and Channel 4 News 2.29 Mr Battle explained that although ITN is not a content broadcaster, the organisation is still obliged to operate in accordance with the Ofcom Broadcasting Code, as well as with the expectations and requirements of the individual broadcasters, ITV or Channel 4. There are three levels of compliance within Channel 4 News: the ITN system and core Compliance Manual; the Channel 4 independent producers handbook; and contractual obligations between ITN and Channel 4 which require consultation and notice in certain circumstances. Mr Gray told the Inquiry that the compliance manual adds layers of practice, best practice and how to go around carrying out such investigations.62 Separately, under the Ofcom Broadcasting Code, Channel 4 News is obliged to offer timely and appropriate rights of
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2.30
p1, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Gary-Gibbon.pdf Alan Rusbridger has talked at length about these principles which are applied at the Guardian News Media titles (see Part C, Chapter 2 above) 59 pp39-40, lines 25-3, Jim Gray, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-23-January-2012.pdf 60 p8, para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Jim-Gray.pdf 61 p44, lines 18-23, Jim Gray, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-AfternoonHearing-23-January-2012.pdf 62 p41, lines 5-6, Jim Gray, ibid
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reply to the subject of a story.63 Mr Gray also described how Channel 4 News would approach a story that might involve potential breach of privacy:64 if it was a serious allegation of wrongdoing or criminality, we would normally expect to contact the subject of the story in writing, putting forward the claims and the allegations and the evidence we had for what was going to be proposed to be contained in the report, and then give sufficient amount of time for the subject to respond. That can vary, Thats not set down but it could be a matter of days or it could be longer. In some cases, depending on the response from the subject, it can drag on. Thats part of the way it is and if you have a real good story, you will navigate your way through that. 2.31 Commenting on the role of Ofcom in relation to Channel 4, and Channel 4 News, Mr Gray told the Inquiry that the Ofcom Broadcasting Code helps to codify the principles and cultural standards that Channel 4 News seeks to uphold. He explained this thus:65 through the ITN guidelines, [we] turn [the Code] into practice, and thats helpful as well, because for the team at ITN, that makes it our guidelines. Its not an external imposition. This is our culture were expressing in the guidelines. It makes it more of a collaborative venture rather than: were only doing this because of its a series of hurdles we have to overcome to get there. It can feel like that but it makes the journalism better at the end result. Complaints system 2.32 In relation to complaints handling, Mr Battle told the Inquiry that ITN does not receive many complaints through Ofcom. He noted that, on average, ten complaints might be received in the course of a given year, and not all of these would be of a substantial nature.66 Complaints in relation to Channel 4 News are handled by Mr Grays Deputy Editor at Channel 4 News, who consults closely with the production team. The complaints are assessed in relation to the report in question with the Head of Compliance, documented as appropriate in consultation with Channel 4. Mr Gray explained that only in serious cases would a complaint be referred to him.67 However, should a complaint be submitted through Ofcom, then the complaint would be handled in accordance with the terms set down by the regulator. Mr Gray explained that Channel 4 News had received remarkably few complaints and, specifically, over the course of five years, we havent actually had a finding against us from an Ofcom complaint except once and that was a partial ruling against us on an investigation.68
3. the World Wide Web

3.1 The media landscape, particularly the provision of news, both globally and in the UK has been transformed by the invention and phenomenal development of the Internet. At its simplest the Internet is a system of interconnected computer networks which use a standardised address system to enable the identification of each of the electronic devices that make up the network. Now literally billions of machines are linked. This means that huge quantities of
63 64
p41, lines 1-3, Jim Gray, ibid p41, lines 7-23, Jim Gray, ibid 65 p49, lines 10-18, Jim Gray, ibid 66 p69, lines 2-3, Jim Gray, ibid 67 pp42-43, lines 23-8, Jim Gray, ibid 68 p43, lines 19-22, Jim Gray, ibid
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increasingly complex information can be stored and accessed at ever greater speeds. It also means that the services that media providers can offer through the Internet to consumers can be ever more sophisticated, personalised and immediate. 3.2 In terms of access and reach, 74% of adults in the UK have access to broadband, with average actual speeds of 6.8Mbit/s.69 22% of all the time that adults spend engaging with media is spent on the internet, with this figure rising to 30% for those aged between 16 and 24. The Internet also enables citizens to access news generated by sources across the world.70 All UK media organisations, whether newspapers, broadcasters or others now have an internet presence. Most of that content is available for free, although some, including some UK publishers, have begun to charge for online content. This free content can be accessed directly where the user knows what they are looking for, or can be found through search engines. In addition to the individual websites of the worlds news providers there are news aggregation services. Where a site is acting as an aggregator, it directs users to material created by others. These sites tend to rely on automatic selection through algorithms and usually involve no active editorial involvement by the aggregator. In some circumstances this will involve simply directing the user to the website of the news provider. In others, it involves essentially importing the news report from the original provider to the site of the aggregator. In the latter case this will mean that any associated advertising revenues will go to the aggregator rather than to the news provider. These sites are characterised by the fact that those operating the sites have little or no editorial input to the content of the material that they provide to users, take no responsibility for the accuracy of articles to which their users are directed, and have no role in the newsgathering process. Although some news sites are merely aggregators of news, linking to content hosted by other news websites, Google news is different. It is a function within Google that will search for material only through online news content.71 However, the content itself is not generated by Google, nor does Google operate any editorial control over the searched content beyond the algorithms that facilitate the search.72 In addition to the presence that traditional providers have on the internet, recent years have also seen the growth of completely new approaches to news generation and provision. One example is the rise of blogs and other web-based news, current affairs and celebrity commentary. Blogs and other commentary come in a number of different forms, but are essentially a personal commentary. They can include examples of citizen journalism produced by individuals sharing their experience of, and views on, events that occur.
3.3
3.4
3.5
3.6
Regulation of the Internet

3.7 In evidence to the Inquiry, the Internet has been described as an unregulated space, in which businesses can avoid the regulation of a given jurisdiction by hosting the content they publish in a different legal jurisdiction. Witnesses to the Inquiry have said that this creates an imbalance with market consequences between what might be written by UK newspapers
http://consumers.ofcom.org.uk/2011/08/a-nation-addicted-to-smartphones/ Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2012, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/07/Claire-Enders-Competitive-pressures-on-the-press.pdf 71 pp103-104, lines 24-8, David John Collins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-26-January-2012.pdf 72 p104, lines 17-20, David John Collins, ibid
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and what might be published by websites hosted abroad.73 Witnesses have pointed to the publication of photos of, in particular, Prince Harry and the Duchess of Cambridge, which though different in terms of the surrounding circumstances, highlight issues around the existence of different jurisdictions and regulatory regimes as applied to the press and the Internet. The Sun has argued that the ready availability of photographs of Prince Harry on the Internet justified in part its decision to publish those same photographs.74 3.8
To some extent, this is an accurate if very cursory reflection of the regulatory picture with regard to the Internet. However, it is a simplification that ignores what is a more complex picture. Certainly, the very nature of the Internet does not lend itself to regulation. It is a global network made up of a very large number of interconnected, largely autonomous networks, operating from many different legal jurisdictions without any obvious central governing body. Indeed, in many ways this loose and lightly regulated structure has been encouraged by governments and by users as a source of both innovation and growth. This does not mean, however, that the Internet is without any governing principles. To ensure interoperability of the constituent networks, as well as consistent policy on addressing, addresses and standards are administered by the Internet Corporation for Assigned Names and Numbers (ICANN), based in California, at which the UK Government is represented. Access to Internet services is also regulated in the UK and Europe through telecommunications legislation as regulated by Ofcom. Internet services have predominantly been provided through the national copper wire telecoms network. The transmission of content wirelessly through the national radio spectrum network is regulated through the Wireless Telegraphy Act 2006 and has regulatory impacts for access to the Internet through wireless devices other than computers such as mobiles phones (especially smart phones like the iPhone), and other Internet enabled devices such as tablets (like the iPad and Kindles). In addition, just as the general law applies online as it does offline, some forms of online content are also regulated. Broadcast content, known as video on demand when it is made available online, through for example the BBC iPlayer service, or in the case of Channel 4, through 4oD, is regulated by the Audiovisual Media Services Regulations 2009 and the Audiovisual Media Services Regulations 2010, by the Authority for Television on Demand (ATVOD). The necessary powers for the regulation of these services are delegated to ATVOD by Ofcom through a formal designation. These ensure that protections similar to those applied to broadcast content are applied to that same or similar content when made available online. In addition to regulation of broadcast and equivalent content through ATVOD, UK Internet Service Providers have also taken a broadly self-regulatory approach to some of the content they host and have applied a limited number of standards to that content. In many circumstances, ISPs and others have cooperated with law enforcement and other agencies to remove illegal content or block access to it. The Internet Watch Foundation (IWF) is an example of this selfregulatory approach. The IWF works closely with ISPs to ensure that webpages, including those hosted outside of the UK, which provide access to potentially criminal content and, specifically, images of child abuse, are reported and removed or blocked at source. The current reliance on collaborative approaches and industry self-regulation does not mean that enforcement of UK law online is not possible. However, successful prosecution relies on considerable cooperation across a number of agencies, not least the ISPs and content
3.9
3.10
3.11
3.12
3.13
pp7-12, paragraphs 37-61, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-ofMartin-Clarke.pdf 74 see Part F, Chapter 5 for a full analysis of these issues
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providers, and is most effective where the alleged act is also clearly criminal in the host country. 3.14 To this end, it is worth noting that Twitter and other social media have cooperated with UK law enforcement in cases of obvious criminality. During the rioting in the summer of 2011, both RIM Blackberry and Twitter worked closely with police and other enforcement agencies to identify those using social media and communications networks to perpetrate or help commit criminal acts. In 2011, Lancashire County Council also worked with Twitter to identify and bring prosecutions against individuals suspected of tax avoidance. This relative lack of internet specific regulation is unlikely to change. The Government made clear that it sees the Internet as a key driver of future economic growth and innovation, and has made public its commitment to an open but responsible Internet.75 This should be understood as an internet in which all legal content is available and there is no blocking of sites or discriminatory practice (such as prioritising one very similar product over another), and where the industry works together with Government to deliver solutions to issues particularly in relation to:
3.15

3.16
e-Accessibility; harmful and inappropriate content; and copyright.
Where legislation has been brought forward in relation to the Internet, this has been in response to legislative changes decided at a European level, intended to protect the privacy of users. Changes to the law have extended the powers available to the Information Commissioners Office to ensure that it has appropriate tools to do its job effectively in a digital age.76 These changes have extended the enforcement powers available to the ICO under the DPA into the Privacy and the Electronic Communications Regulations (PECR), and include powers to:

3.17
levy civil monetary penalties for PECR offences; compel Communication Providers to disclose the identity of third parties; and amend Assessment Notice powers which will enable the ICO to compel organisations to submit to an e-privacy audit.
The changes have been made in response to concerns at a number of high-profile data breaches, some as a consequence of criminal hacking, others by the apparent unwillingness of service providers to pay full heed of data protection legislation (as in the case of the unintentional interception of data from wifi-wireless and remote internet devices by Google in 2009).77 This has been alluded to in evidence given to the Inquiry. Google stated that privacy online was a matter of growing importance to the company. David John Collins, Vice President of Global Communications and Public affairs for Google, explained that the companys attitude
3.18
Speech by the Rt Hon Ed Vaizey, Minister of State for Culture, Communications and the Creative Industries, to PICTOR, 25th October 2012 76 pp65-66, (DCMS), HMG response to its consultation on proposals and overall approach including its consultation on specific issues (2011), http://www.culture.gov.uk/consultations/7806.aspx 77 p68, lines 16-21, David John Collins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-26-January-2012.pdf
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towards privacy online and related matters has changed considerably with time reflecting both the growth in the use of online services and the changing legal landscape with regard to the internet.78 Mr Collins said:79 Google has always taken privacy seriously from a very strict compliance position; its taken privacy seriously because ultimately the trust that we have with our users is incredibly important.
In this respect Google has worked hard to improve public awareness of privacy issues online, and in January 2012 launched the good to know campaign which actively sought to raise public awareness of privacy tools in relation to email, social network accounts and other online functions that might help users to protect their privacy online.80
4. Blogs and other web-based commentary

4.1 4.2 The Inquiry heard evidence in regard to the operation of blogs, online news aggregators, publishers, social network sites and online hosts. There are a number of news blogs the Huffington Post is an early, high profile example of one, which has developed over the years into something much more like an online newspaper which specifically aim to bring a range of news stories and views on those stories to their readers. Other examples include the Guido Fawkes Blog, which focuses on tittle-tattle, gossip and rumours about Parliament;81 the Jack of Kent Blog,82 which describes itself as liberal and critical; and Popbitch, which is a celebrity newsletter and message-board. Camilla Wright, co-founder of Popbitch, told the Inquiry that her intention in founding Popbitch was to create a publication like Private Eye for the celebrity world that would:83 ... look at the hypocritical gap between how those in the public eye seek to be portrayed and how they really act. 4.3 There is no single format for these types of sites and individual sites can evolve, and have evolved, a great deal over time. Whereas Popbitch is clear in its ambition to entertain and understands itself to poke fun and comment on the lighter side of celebrity culture, Guido Fawkes, though ostensibly and in many respects similar, is different in nature. Paul Staines, the founder of the Guido Fawkes website, stated that Guido Fawkes actively seeks to break stories and prides itself on doing so ahead of the main news providers.84 The type and size of audience attracted by such blogs varies hugely and depends unsurprisingly on the content they carry. For example, Mr Staines told the Inquiry that the Guido Fawkes site generally had between 50,000 and 100,000 readers daily. However, when very big stories are being broken this can rise to as many as 100,000 visitors per hour.85 Mr Staines estimated that
4.4
pp65-68, lines 23-21, David John Collins, ibid p68, lines 16-21, David John Collins, ibid 80 p91, lines 10-17, David John Collins, ibid 81 http://order-order.com/ 82 pp15-96, David Allen Green, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-25-April-2012.pdf 83 pp42-43, lines 12-10, Camilla Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-26-January-2012.pdf 84 p99, lines 1-7, Paul Staines, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-MorningHearing-8-February-2012.pdf 85 p99, lines 13-20, Paul Staines, ibid
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between 25% and 30% of his readers reached the site through search engines.86 Popbitch, by contrast, has 350,000 subscribers, whilst Holy Moly, which also covers celebrity news and gossip, serves 6.5 million page impressions a month to 1.6 million people.87 4.5 In addition to the stand-alone blogs and sites described above, many established news providers also use blogs for example the Guardian has been running a live blog on the Leveson Inquiry since the first of the Inquiry seminars either for specific events or issues, or just by way of communicating with readers in a different manner. At the other end of the spectrum, many individuals run blogs on matters which are of interest to them, some of which will, from time to time, cover issues of news or current affairs and some which may well break stories if the people writing them are well placed to do so. These vastly different sites are all offered to the public in the same way; they all have the same theoretical reach to the entire internet-connected population at the touch of a button (particularly when facilitated by search engines). They are also, with the regulatory exceptions set out above, entirely unregulated, though subject to civil and criminal law in appropriate jurisdictions. However, it is noteworthy that although the blogs cited here are read by very large numbers of people, it should not detract from the fact that most blogs are read by very few people. Indeed, most blogs are rarely read as news or factual, but as opinion and must be considered as such.
4.6
Purpose and process

4.7 Ms Wright explained the nature and purpose of Popbitch as a gossip site. She said that she believed that the public had a right to know certain facts about certain celebrities, particularly given the ability of some to shape and influence peoples lives.88 Ms Wright argued that it is only right that publishers should bring material to the attention of the public if it brings to light what she described as the gap between peoples private life and public life.89 This she argues is not only very much in the public interest but is a reflection of everyday concerns that individuals may have, as well as the reality of celebrities and others putting potential personal or private information into the public domain through Facebook and other social media, that might sit uneasily or indeed at odds with their public persona.90 Ms Wright acknowledged that this may mean that the line between what is private and what might be made public is fluid and dependent on context:91 We draw the line, I would say, we look at who is making themselves influential, and if so are they living up to it. 4.9 Understandably perhaps, for a relatively small operation, the standards of proof deployed by Ms Wright are lower, and the processes different from those that might be found on a print newspaper. Ms Wright said in relation to the corroboration of stories:92
4.8
p100, lines 2-4, Paul Staines, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-8-February-2012.pdf 87 evidence of Jamie East to Joint Committee on Privacy and Injunctions Q336, http://www.parliament.uk/documents/ joint-committees/Privacy_and_Injunctions/JCPIWrittenEvWeb.pdf 88 p55, lines 7-8, Camilla Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-26-January-2012.pdf 89 p56, lines 1-3, Camilla Wright, ibid 90 p56, lines 15-23, Camilla Wright, ibid 91 p57, lines 3-8, Camilla Wright, ibid 92 pp48-43, lines 7-10, Camilla Wright, ibid
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If it is a contentious or controversial story , I would want to get someone else to back up what theyre saying and try and find if possible, some evidence to support what theyre both saying. 4.10 Ms Wright also explained that whilst Popbitch may not have formal processes for establishing whether content might be in the public interest or a breach of privacy, the company does consult with and take advice from media lawyers, who have at times provided extracts from the Editors Code of Conduct which they perceive might be useful for Popbitch to consider.93 Much as Popbitch understand itself to provide information to the public that it determines to be in the public interest, Guido Fawkes also prides itself on its ability to deliver stories it understands to be in the public interest, that might otherwise remain unknown. Mr Staines said: 94 I particularly dont think people in public life, people who are, you know, paid for by the taxpayers, or subject to the voters, should expect the same degree of privacy as a private citizen who has no public life can expect. These people their character speaks to what the voters need to know about them as politicians, so if they misbehave in their private life its quite common that somebody who will lie to their wife will lie to the voters. Thats an old adage that has some truth to it. 4.12 Indeed, Mr Staines stated in evidence that he would publish information that he assessed to be in public interest even if that information was the subject of a legally enforceable injunction. He referred in evidence to material made available by his blog which a court had ordered should be removed from the internet.95 This is explored in more detail below.96 Mr Staines also gave evidence on the standards and editorial processes he deploys with regard to the content he publishes. He said that in many cases he is unable to corroborate stories through a second source:97 Yeah, quite often theres only one source in the room who can provide us with information, so we have no choice. We dont rely on single sourcing from people we dont know. There has to be some authority to that person or we have to have a level of trust built up over time. If someone came in fresh and was a single source we couldnt verify in any way whatsoever, Id be very reluctant to run with it. 4.14 Mr Staines also made clear that accuracy was as important to the credibility of a blog site like Guido Fawkes as it was for a print newspaper. It is for this reason that the majority of material sourced by Mr Staines was either verifiable or from a trusted source. Only some 10% of material might be from an unknown source.98 Additionally, Mr Staines told the Inquiry that journalists occasionally provided him with material that an editor may have decided not to publish (that had been spiked), or that might not fit with the overall agenda of the publication in question.99 As such Guido Fawkes provides
4.11
4.13
4.15
p61, lines 3-17, Camilla Wright, ibid pp114-115, lines 23-8, Paul Staines, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-8-February-2012.pdf 95 p106, lines 15-18, Paul Staines, ibid 96 see paras 5.13, 5.14 and 7.6 97 p102, lines 2-9, Paul Staines, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-8-February-2012.pdf 98 p110, lines 4-12, Paul Staines, ibid 99 p112, lines 1-9, Paul Staines, ibid
94
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a valuable vehicle for publication of such content. Guido Fawkes also receives material that journalists want to push further and establish whether the story in question has legs.100 4.16 Mr Staines also stated, in a parallel that he himself has drawn with the former editor of The Sun, Kelvin Mackenzie, that he would run stories that are single sourced if the story was of little consequence, or in keeping with the overall tone of the Guido Fawkes site, namely, that it was gossipy or humorous in nature.101 Much as the Guido Fawkes site is used as a proxy by some newspapers and a means of running stories that might lead to a newspaper being challenged, Ms Wright said that Popbitch is also occasionally used by journalists from print newspapers in this manner. However, Ms Wright made clear that is a practice that she generally seeks to avoid. She noted that such an approach has not happened for some time.102 Ms Wright was also keen to emphasise that she would only publish such information if it were in the public interest. This, she said, has not yet happened.103 The Inquiry also heard evidence from the Carla Buzasi, Editor in Chief of the Huffington Post UK. In contrast to either Popbitch or Guido Fawkes, the Huffington Post UK is not a blog built around the knowledge and gossip of a given area, it is an online newspaper employing trained journalists and abiding by journalistic standards as set out in the Editors Code of Practice, as well as participating in the system of self-regulation for the press through the PCC.104 The Huffington Post UK also functions as a news aggregator and links to news content hosted on other websites, as well as hosting blogs for the discussion and dissemination of opinion. Ms Buzasi gave evidence on the importance of trust to the Huffington Post UK, and particularly to its reputation as a news source. This has informed editorial and management decisions made around training and editorial guidelines.105 It is therefore expected that all stories are verifiable and are not single sourced. However, Ms Buzasi acknowledged that there may be a limited number of circumstances in which single sourcing was acceptable, but it was not the rule.106 A similar emphasis on trust is placed on those news sites that the Huffington Post UK will link to.
4.17
4.18
4.19
Regulation of blogs
4.20 Blogs and other such websites are entirely unregulated. The Huffington Post UK is unique in having opted to subscribe to the PCC. It is the only solely online news provider to have elected to this and did so in September 2011. Ms Buzasi suggested that membership of the PCC was a natural next step for the Huffington Post UK as it had long abided by the terms of the Editors Code of Practice. However, she expressed some frustration at that organisations lack of consideration for online publications and intimated that the process of joining revealed flaws inherent in the existing system.107 She noted that the Huffington Post UK was eventually
100 101
p112, lines 10-23, Paul Staines, ibid p102, lines 16-20, Paul Staines, ibid 102 p66, lines 11-13, Camilla Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-26-January-2012.pdf 103 p66, lines 18-20, Camilla Wright, ibid 104 pp75-76, lines 10-19, Carla Buzasi, ibid 105 p78, lines 8-18, Carla Buzasi, ibid 106 pp79-80, lines 8-15, Carla Buzasi, ibid 107 p92, lines 5-18, Carla Buzasi, ibid
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categorised by the PCC as a regional newspaper although it is in reality a national online publication with a substantive readership.108 4.21 By contrast, Ms Wright told the Inquiry that although she was aware of the PCC Code she saw no reason for Popbitch to be part of the system of self-regulation through the PCC. Instead, she said in response to questions from the Inquiry that she believed Popbitchs own system of internal or personal regulation was more effective and better suited to the needs of the organisation.109 With regard to a future system of regulation for the press, Ms Wright was equivocal as to whether such a system would be something that Popbitch would consider voluntarily signing up to, the detail of that system depending. Ms Wright said that she would need to determine whether that system of regulation would be useful to Popbitch.110 With regard to the oversight and regulation of content published by third parties, views of the Huffington Post UK to hosted and other user generated content on its site are broadly typical of other hosting sites. The Huffington Post UK does not pre-moderate or edit that content. Indeed, Ms Buzasi has said that:111 We want to have their personalities shine through on their blogs but there is a framework to ensure that were or our bloggers are complying with the law. 4.23 Mu Buzasi said that a small number of comments were routed through a filter which may pick up certain word combinations or profanities. These were then directed to a moderator for review.112 Comment that was flagged by users was also directed to a moderator for review.113 Ms Buzasi made clear that it was her firm belief that micro bloggers and small non-commercial bloggers should exist outside any formal system of regulation. She regards this freedom from regulation as a necessary condition for the nurture of creative talent and encouragement of new media enterprises, particularly if there are substantive costs associated with that system.114 Google is by some margin the largest publisher of third party content to have given evidence to the Inquiry. Specifically, Google hosts user generated content through its Blogger.com service. The service hosts blogging sites, and now hosts more than 1 trillion words. That total increases at rate of over 250,000 words every minute.115 Its attitude towards the content it hosts is markedly similar to that of the Huffington Post UK. All content hosted through the service must comply with the terms of use. Beyond this, Google does not exercise any editorial control over the content it hosts on its blogger service.116 It does, however, provide a notice and take down service. Googles legal Director, Daphne Keller, has said that while a blogger service is available only through the .com domain, Google will take steps to ensure
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4.24
4.25
108 109
p92, lines 9-12, Carla Buzasi, ibid p54, lines 7-15, Camilla Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-26-January-2012.pdf 110 p67, lines 15-18, Camilla Wright, ibid 111 p83, lines 17-21, Carla Buzasi, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-8-February-2012.pdf 112 p84, lines 16-24, Carla Buzasi, ibid 113 p84, lines 21-22, Carla Buzasi, ibid 114 p89, lines 3-22, Carla Buzasi, ibid 115 p109, lines 10-14, Daphne Keller, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-26-January-2012.pdf 116 pp111-112, lines 7-11, David John Collins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-26-January-2012.pdf
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that content originating from a given jurisdiction is compliant with local law, if it receives a complaint about the content in question.117 Funding models 4.26 Many blogs sites now run on a commercial basis. The largest blog sites are increasingly funded either in their entirety or in part by advertising, as is the case with both Popbitch and Guido Fawkes. Although the approach to what appears on the website or blog will vary from site to site, the technical costs associated with running a site of this sort are relatively low, and barriers to entry to the market for both new players, be they individuals or much larger firms, are similarly low. Effectively, anyone with access to the Internet can set up a blog and seek to reach readers.
5. Social networking sites

5.1 A social networking service is an online service, platform, or site that focuses on the building and reflecting of social networks or social relations among people who, for example, share interests and/or activities. A social network service essentially consists of a representation of each user (often a profile), his/her social links, and a variety of additional services. Most social network services are web-based, providing means for users to interact over the Internet, potentially through e-mail and instant messaging. Myspace, Facebook, Twitter, LinkedIn and Google+ are all social network sites. Although there is limited news provision in the terms that are relevant to this Inquiry on pure social networking sites, all social networks provide opportunities for individuals to disseminate and discuss news, information and comment. Indeed, everyday use of the Internet is increasingly characterised by the use of social networking sites and other social media. Their growth has been little short of phenomenal. Ten years ago there were no social networks; now the largest social networking site, Facebook, has over 800m users worldwide (although Facebook has recently suggested that as many of 100m of these accounts may be either dormant, fake or used for questionable purposes). The rise of Twitter has been similarly rapid. Founded in 2006, it now counts over 100 million active users each month, sending a billion tweets every four days.118 Perhaps most astonishingly (and for this Inquiry of concern to those who may be the subject either of Tweets that breach privacy or indeed the criminal or civil law), is the speed with which a message might be propagated. Colin Crowell, Head of Global public Policy for Twitter Inc, noted that during the 2012 Superbowl, Twitter processed 12,000 tweets per second.119 Increasingly newspapers themselves not only use the pages of social networking sites to disseminate news, but also provide platform friendly applications, to enable the application to be accessed through the specific social media. However, it is worthy of note that despite their extraordinary growth, as with most blogs, in the main few tweets or social network pages are read by very large numbers of people. Although a very small number of tweeters are followed (though not necessarily read) by very large numbers of people, and such may at times have significant impact (the Inquiry has heard evidence from Stephen Abell of the PCC
5.2
5.3
117
pp109-110, lines 20-15, Daphne Keller, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-26-January-2012.pdf 118 pp92-93, lines 25-9, Colin Crowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-7-February-2012.pdf 119 p105, lines 3-4, Colin Crowell, ibid
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of the phenomenon of Fry-bombing),120 it should not detract from the fact that most tweets are read by very few people. The television personality and actor, Stephen Fry, one of the most prolific celebrity tweeters has over 5 million Twitter followers. 5.4 Although social networking sites are not obviously in competition with newspapers for audience, revenue or advertising, they may be used to publish information that would not be able to be published by a newspaper in conformity with the standards set by self-regulation. In a practical, though not a legal, sense they might also be used to publish information that a court has ruled should not be published with little likelihood of the publisher being identified and held to account. Indeed, there are clear and very recent examples of this practice that do not need to be repeated here. It is in this regard that Twitter has been the focus of some interest to the Inquiry because of the role played by users in identifying individuals who had been the subject of privacy injunctions. Twitter allows members to operate anonymously, or under a pseudonym,121 and it is also possible that the company itself may not know the real identity of any member.122 However, Twitter has told the Inquiry that its rules forbid members from using the service for any unlawful purpose,123 and any material that is found by the company to contravene that policy can be taken down or removed.124 In this respect Twitter is similar to other social media. Most social networking sites and publishers of user generated content operate acceptable use policies (AUPs) which set down guidelines for user behaviour on those sites and cover issues such as posting of offensive content and bullying. Where a policy is breached, material is removed and in some cases the users profile is deleted. Most recent trends in social network technology have been towards the concept of realtime web and location based services. The real time web service allows users to generate content, that is broadcast as it is being uploaded the concept is potentially analogous to and may indeed come to challenge live radio and television broadcasts as well as traditional print media. Indeed, the instant nature of social networking also differentiates it from more traditional media. Rebuttals and denials of allegations can take place instantly, helping if not to kill a story at least to provide the subject of the story with a voice and make users aware that the veracity of the allegation or story may be in doubt.
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5.6
5.7
5.8
Consideration of the law

5.9 The major websites and providers of internet services, be they social networking sites or providers of other services or functionality, tend to operate under US law if that is where the company is based. However, as witnesses to the Inquiry representing Internet firms have sought to make clear, where services are targeted at a given jurisdiction, they will also seek to comply with local law. This can and does lead to conflicts of law, for example, where issues such as consideration of privacy and other related matters conflict with rights under the First Amendment of the American Constitution.
120
pp60-61, lines 19-4, Stephen Abell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-30-January-2012.pdf 121 p94, lines 6-7, Colin Crowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-7-February-2012.pdf 122 p98, lines 22-23, Colin Crowell, ibid 123 p96, lines 22-25, Colin Crowell, ibid 124 p98, lines 6-9, Colin Crowell, ibid
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Blogs and the consideration of the law

5.10 The Inquiry has heard much evidence in this regard. Ms Wright said that as Popbitch is published in the UK it abides by general law. This includes making efforts to ensure that content is not defamatory.125 Ms Wright was keen to emphasise, echoing points made by other witnesses representing online publishers and Internet businesses, that Popbitch sought to obey the local law in each of the jurisdictions in which it operated.126 Asked by Counsel to the Inquiry whether she considered the privacy of individuals about whom she writes, Ms Wright said:127 In era where injunctions have been such a much-talked about thing, that obviously has to be a consideration. I think if I could put it this way, Popbitch is an entertainment product, therefore we are trying to do no more than poke fun in the world of celebrity.. We get a lot of stories in [sic] which we dont print, which are things like somebodys gone to rehab, somebody has cancer, or its about their children. 5.11 Ms Wright also said that consideration of privacy issues was more important to Popbitch than it once was. In evidence she referred to the example of Victoria Beckhams pregnancy, noting that at the time the pregnancy was widely discussed, and that although Popbitch were the first publishers to write about the story, the fact of that pregnancy was no secret. However, Ms Wright has said further:128 I would be I think since then much more careful about making sure that a pregnancy was beyond twelve weeks before in this case, this was that as well, but I would be very careful about doing that. 5.12 Mr Staines provided different and interesting evidence in relation to legal accountability and enforcement, particularly in relation to legal jurisdictions, that illustrates well the problems in respect of the application of national law by online publishers. Mr Staines was candid about this. He said that the servers used by the Guido Fawkes site are located in the USA. The site was previously hosted by Google on the Google free blogger system but, as Mr Staines explained, was moved when Google became more willing to give in to legal threats.129 Mr Staines said by way of further explanation:130 I thought it be a good moment to switch from them to a hosting provider who was robust and would stand up for my First Amendment protections. 5.13 This switch from Google to another blog host was made in order to make it more difficult for content Mr Staines had published to be challenged through the UK courts; he cited the experience of Wikileaks as a sufficient justification for this course of action.131 Further, Mr Staines stated that although he had been threatened with legal action on a number of occasions, no such action had been successfully prosecuted. Mr Staines also made clear that he has ignored UK Court decisions without adverse consequences.132
p51, lines 8-12, Camilla Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-26-January-2012.pdf 126 p67, lines 9-12, Camilla Wright, ibid 127 p52, lines 10-16, Camilla Wright, ibid 128 p52, lines 10-16, Camilla Wright, ibid 129 p103, lines 1-2, Paul Staines, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-8-February-2012.pdf 130 p103, lines 3-5, Paul Staines, ibid 131 ibid 132 p103, lines 3-5, Paul Staines, ibid
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5.14
He gave the specific example of a memorandum prepared by Merrill Lynch setting out concerns at the future prospects of Northern Rock which suggested that the eventual cost to the taxpayer might be as much as 50bn.133 Mr Staines said that he uploaded the memo in question onto a number of overseas servers to circumvent injunctions issued by the law firm Carter Ruck.134 The attitude of Mr Staines revealed in evidence with regard to compliance with national law was unique among witnesses from online businesses who have given evidence to the Inquiry. More typical were those of the Huffington Post UK, which have already been partly addressed. Ms Buzasi was clear that the Huffington Post UK abides by UK law. Under the terms of use, users of the Huffington Post UK comment boards and blogs must undertake not to post anything that might be illegal. Users must also provide personal details, which means that legal orders or proceedings can be enforced should either legal action be brought or an injunction be imposed.135 However, she also explained that the Huffington Post UK was not able to review and pre-moderate potentially libellous or defamatory comment, a theme that was taken up by other witnesses to the Inquiry.136 Ms Buzasi suggested that the inability of the Huffington Post UK to make adjudications in such matters is, to some extents, mitigated by provisions made for the correction of inaccurate or potentially actionable material through the prominent provision of send a correction button; the site also operates what Ms Buzasi has referred to as a robust notice and take down process.137
5.15
6. Other providers
6.1 Mr Crowell made clear that it would be both technologically and physically impossible for Twitter to pre-moderate the user-generated content hosted by Twitter, in this case tweets, and adjudicate on their potential illegality.138 In this respect, the position of Twitter is markedly similar to that of both Google and Microsoft in relation to user-generated content. Articulating the position of Google with regard to compliance in this area, Ms Keller explained that given the volume of material generated by third parties that Google either indexes, searches or hosts depending on the relevant Google service or function, it is impossible for Google to pre-moderate that content in any way or, to make adjudications as to whether content is legal or not.139 Ms Keller has made clear that both the volume and nature of the content make such decision making practically impossible. She told the Inquiry that such filtering is also technically impossible and would also run the risk of legal challenge if content that had been posted entirely legally were removed inadvertently as a consequence of such filtering.140 However, Mr Crowell was keen to stress that recent technological changes since the start of 2012 have enabled Twitter to withhold tweets within a given jurisdiction. This will enable Twitter to comply more effectively with differences in local law in different jurisdictions.141 Mr
6.2
133 134
p106, lines 19-23, Paul Staines, ibid p107, lines 2-8, Paul Staines, ibid 135 p85, lines 17-19, Carla Buzasi, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-8-February-2012.pdf 136 p85, lines 14-26, Carla Buzasi, ibid 137 p86, lines 6-11, Carla Buzasi, ibid 138 p102, lines 5-11, Colin Crowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-7-February-2012.pdf 139 p76, lines 8-22, Daphne Keller, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-26-January-2012.pdf 140 pp101-102, lines 7-19, Daphne Keller, ibid 141 p106, lines 5-14, Colin Crowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-7-February-2012.pdf
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Collins also provided further evidence of Googles evolving policies with regard to compliance with national law. He said that Google services targeted at a particular country comply with local law and that this applies as much to privacy and other related matters as it does to other areas of law.142 By way of example, Mr Collins explained that Google policy on privacy in the UK was shaped through an ongoing dialogue with the ICO, which had provided relevant advice.143 Ms Keller explained that the use of the .co.uk domain name underpinned the provision of services to the UK as well as compliance with the local law.144 6.3 Ms Keller also explained the number of routes through which an individual might seek to remove material made available through Google services. It is notable, and indeed unfortunate although given the technological constraints understandable that in each example the burden of effort lies with the injured party. Ms Keller explained that webmasters (those who author and maintain websites) are able to request that their site is not indexed and will therefore not appear in searches.145 Ms Keller also said that this particular approach is in the view of Google the most effective means of getting content removed. Google also provides a remove content from Google service, which users may use to alert staff to potentially illegal content which will be taken down if it is understood not to comply with UK law.146 Google has adopted a similar, expedited approach in relation to content that is in breach of copyright.147
7. enforcement
7.1 Despite the efforts made to comply with national law, it is clear that the enforcement of law and regulation online is problematic. Although the law with regard to online content is clear, and UK hosted content is by and large compliant, the ability of the UK to exercise legal jurisdiction over content on Internet services is extremely limited and dependent on many things (explored below) which are rarely aligned. These include: the location of the service provider; the location of the servers on which material is held; and international agreements and treaties. Internet Service Providers offering services to UK customers will block content that has been declared illegal. They are, however, understandably unwilling to make decisions on whether content may or may not be illegal or to take decisions where there are grey areas in law. This has been particularly apparent in cases of alleged defamation, where ISPs and content providers have historically been unwilling to remove content without a court decision. Whilst the position of the ISPs and content providers may be understandable issues clearly arise as to their ability to decide on the veracity of an allegation in some cases considerable damage may have been done to the subject of those allegations before a judgment has been reached and the defamatory content consequently removed. Most successful attempts to induce service providers of any sort to take enforcement action in relation to content are either through agreement, or dependant on case-specific court orders. In his evidence to the Inquiry, Mr Crowell (as well as representatives from Microsoft and Google) said that Twitter would enforce orders made by UK courts, in so far as they might
7.2
7.3
142
p69, lines 8-20, David John Collins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-26-January-2012.pdf 143 p69, lines 8-20, David John Collins, ibid 144 pp73-74, lines 13-17, Daphne Keller, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-26-January-2012.pdf 145 p78, lines 7-11, Daphne Keller, ibid 146 p79, lines 6-12, Daphne Keller, ibid 147 p88, lines 1-24, Daphne Keller, ibid
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apply to UK users, on a case by case basis.148 In practice, this means that for Twitter to remove a defamatory tweet that was re-tweeted, a court order would be needed in relation to every relevant tweet by every individual unique user who repeated that defamatory content.149 7.4 Ms Keller has also made clear that, in cases of alleged defamation, it is Google policy in most cases only to remove material from a given service if the complainant was able to provide a legal judgment in support of their claim. However, Ms Keller acknowledged that while such material would be removed from a UK search, it might still be found through Google.com if the material in question was not in breach of American law.150 This means in practice that, in order to have material removed from searches in multiple jurisdictions, a legal application would have to be made in each relevant jurisdiction. Ms Keller said in this respect that she hopes: this would not be a difficult thing to do.151 It is notable that much as Twitter requires a court order in respect of each individual user, Google require such an order in relation to individual URLs. Both examples are also in counterpoint to the number of instances where UK legislation and decisions by UK courts are simply ignored, as they are unenforceable. Content providers headquartered in the United States will also strenuously defend rights to free speech under American law and indeed may themselves be at risk of prosecution if they remove allegedly defamatory or potentially illegal content ahead of a court decision. This position is not without legal underpinning under European Law. Under Article 15 of the European eCommerce Directive which sets out the regulatory framework for trade through the Internet, ISPs are not legally responsible for the content they carry over their pipes.152 This defence is known as mere conduit. Mr Collins of Google described the apportionment of responsibilities between publishers and host thus:153 Firstly, there is a very clear set of regulations which apply to technical intermediaries hosting platforms. Its called the E-commerce Directive and it does place a number of responsibilities on us around removal of content. I know that youre very aware of it. Its important to make the distinction between in the system that youve outlined, its important to make the decision between someone who provides a hosting platform for other people to create and post content, and a publisher. Blogger.com or other products that are attempt to form a community around the product, YouTube, et cetera, they dont make us a publisher; we remain a hosting platform. So I think whatever system that you devise, its important to retain that distinction, because not only is there already a very clear set of regulations around those principles placing responsibilities on us, but it retains a very essential balance online, which is: where does that responsibility lie? We have our responsibilities, which we fulfil; the person that produces and uploads that content has his or her responsibilities as well. 7.6
148
7.5
Mr Staines also described with some colour the difficulties that an individual or company might encounter in trying to have content removed from the internet:154
p23, lines 21-24, Colin Crowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-7-February-2012.pdf 149 pp103-104, lines 5-5, Colin Crowell, ibid 150 p85, lines 9-20, Daphne Keller, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-26-January-2012.pdf 151 p86, lines 22-23, Daphne Keller, ibid 152 pp111- 112, lines 8-4, David John Collins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-26-January-2012.pdf 153 pp111- 112, lines 8-4, David John Collins, ibid 154 p107, lines 2-8, Paul Staines, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-8-February-2012.pdf
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I think it is impossible for them to do anything, I would basically upload it to a free hosting service after the close of business hours, so if the law firm was contacting Yahoo India, they would find that there would be no one at home and it would be up on that website until the next day at the very least.
8. press photographers
8.1 Press photographers are another source of news material. Their actions and conduct are covered elsewhere in this Report as appropriate, so I will restrict myself to a very few comments in this regard. Based on figures provided by the British Press Photographers Association (BPPA), it is estimated that there are around 800 press photographers in the UK. Of these around a quarter are directly employed by newspapers or agencies, around 12% are employed on fixed term or rolling contracts, around 18% work through agencies as freelancers and the remaining 45% are entirely freelance.155 Those photographers who are directly employed, whether by newspapers or by agencies, might expect to be subject to the Editors Code of Practice. Indeed, the Inquiry has been told by witnesses both from picture agencies and newspapers that the expectation is that press photographers would abide by the terms of the Editors Code of Practice.156 Those who operate on a freelance basis are not subject to any regulation beyond the law, as it applies to everyone. Much of the work undertaken by press photographers involves arranged photo shoots of one sort or another. However, press photographers obviously do also work by waiting for potential subjects and hoping to get pictures of them. This inevitably gives rise to the risk that photographs will be taken in situations where the subject might prefer not to be photographed and, as is made clear157 elsewhere in this report, may even be subject to harassment or distress. The death of Diana, Princess of Wales,158 in an accident that occurred while the car in which she was travelling was being pursued at high speed by a number of press photographers in 1997 brought the role and behaviour of press photographers very much to public notice. Since then, UK newspaper editors have been committed by the Editors Code of Practice not to publish images that are taken in contravention of the Code. The responsibility for checking whether the Code of Practice has been breached in relation to any specific image sits with the newspaper concerned. The market for celebrity and news photographs is now a global one. A picture that might be turned down by a UK editor as not being consistent with the Code might well be accepted by non-UK newspapers, broadcasters or websites. Recent cases involving Prince Harry and the Duchess of Cambridge are instructive and are described elsewhere in this Report.159 The largely freelance nature of the press photography business means that there is a high level of competition among photographers to get the best picture.
8.2
8.3
8.4
8.5
155 156
p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-The-BPPA1.pdf Part F, Chapter 6 for a fuller discussion 157 Part F, Chapter 6 158 Part D, Chapter 7 159 Part F, Chapter 5
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Chapter 4 plurality
I think sometimes a lot of the time it isn't necessarily the size of the newspaper group, it's the strength of voice of the paper. I mean, actually, the Daily Mail is an incredibly sort of powerful voice in the nation's politics because it's a very strong product, it puts its voice very powerfully, and that's not related really to its market power, it's [related] to the way it pushes its agenda. 1
1. What is plurality and why does it matter?

1.1 There is a generally held view that the media is of central importance for a healthy, wellinformed democracy and therefore control of the media should not be concentrated in too few hands. This is based on a concern that a small number of media owners could have too much influence in terms of content and, in particular, agenda setting. Policy and legislation have been designed overall to achieve a range of different media voices, which enable consumers to have access to a range of views, which helps them to actively participate in the democratic process in the widest sense. The Communications Act 2003 takes two different approaches to the nature of the plurality that is considered important. The first is the need for a sufficient plurality of views in newspapers in each market for newspapers2 and the second is the need for there to be a sufficient plurality of persons with control of the media enterprises serving [every] audience [in the UK].3 The difference between a plurality of views and the plurality of persons with control of media enterprises is clear. The rationale as to why the first should apply in relation to newspapers and the second in relation to media enterprises is less clear. In any event, the media market has moved on considerably since the Communications Act 2003 was passed and the nature and number of media enterprises serving markets in the UK has changed. Witnesses to the Inquiry took various approaches to what they understood by the need for plurality in the media. Ofcom defines plurality with reference to the desired outcome of a plural market:4 (a) ensuring there is a diversity of viewpoints available and consumed across and within media enterprises; (b) preventing any one media owner or voice having too much influence over public opinion and the political agenda. (emphasis added) 1.4 Professor Chris Megone, Professor of Inter Disciplinary Applied Ethics at the University of Leeds, described both the benefits that a free press brings and the risks of a few voices dominating the public debate:5
1.2
1.3
p24,lines 1-8, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 2 Communications Act 2003 s375 (1)(2B) http://www.legislation.gov.uk/ukpga/2003/21/section/375 3 Communications Act 2003 s375 (1)(2C)(a) http://www.legislation.gov.uk/ukpga/2003/21/section/375 4 p11, para 3.8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Ofcom-MeasuringMedia-Plurality1.pdf 5 p2-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-ChristopherMegone.pdf
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freedom of individual expression may be served to some extent by a free press in that such a press provides a vehicle for the expression of opinion in leader and comment columns. Such free expression can contribute to informed citizens through its role in the cut and thrust of ideas. However clearly there are only a limited number whose ideas are expressed in this way, and even with letters pages, and invited contributions from politicians and the like, the number able to express themselves is very small. and later: This argument could be taken further and it could be said that the public interest in freedom of expression can even be adversely affected by a free press, if certain other conditions hold such that some voices get much more prominence than others. In those conditions the power of the press as a medium of expression may lead to certain views dominating the public sphere and other views being squeezed out. So the public interest in freedom of self-expression, or freedom of opinion, is served by a free press, but only to some extent, and only if the structure of the press allows for sufficient diversity. 1.5 This approach to both the diversity of views available and the influence wielded seems to be generally accepted. Robin Foster, an independent adviser on regulatory policy and strategic issues in the communications sector, described two aspects of plurality that he considered important: to make sure that there was a reasonable wide range and diversity of news and opinion available to the public, and to make sure that no single one of those news providers became so powerful that they had too much of an influence on opinion-forming and the political agenda.6 Professor Steven Barnett, University of Westminster, said that plurality must encompass both a sufficient number of competing media enterprises and (separately) the prevention of an unhealthy accretion of power by any single enterprise.7 The rationale for requiring plurality within the media and the different dimensions of it that are important seem uncontroversial. However, it is also necessary to say what the scope of media plurality should be. Ofcom notes that both they and other regulatory authorities have concentrated to date on news and current affairs, but that this is not required by the legislative framework.8 There are arguments for broadening the scope, which are considered later in this Report.9 Historically, regulators have not really looked beyond news and current affairs when considering plurality.
1.6
2. approaches to securing plurality

2.1 Attempts to secure plurality have tended to rely on four complementary approaches. First, where broadcast media are concerned, it can be argued that the existing rules around accuracy and impartiality should counter concerns about concentration of ownership. The Department of Culture, Media and Sport (DCMS) argues that this is true up to a point, but it is difficult to regulate the coverage and prominence of stories. Therefore, there is still considerable scope for
p3, lines 4-10, Robin Foster http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofAfternoon-Hearing-17-July-2012.pdf 7 p1, para 1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Submission-from-Professor-StevenBarnett-on-plurality.pdf 8 p12, para 3.11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Ofcom-MeasuringMedia-Plurality1.pdf 9 Part I, Chapter 8
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influencing the agenda by the extent to which particular stories are covered or not.10 A wider range of media owners makes it harder for one or two large owners to distort the agenda in a way which suits their own purposes. 2.2 Second, there have been specific rules constraining the ability of any one person or company to own too large a proportion of the broadcast market, and restrictions on the extent to which any one person or company can own both a national newspaper and a national terrestrial television channel or a local newspaper and a local television channel. These rules and how they have changed over time are outlined below. Third, there is general competition law. One of the key aims of competition law is to ensure that no company has such a position of power within a market that it can abuse that power, for example to force competitors out of the market to the detriment of consumers. Competition law is designed to reduce concentration of market power and, therefore, will generally produce outcomes which support plurality. However, competition rules are also designed to prevent abuse of market power; it is possible that an owner could have a dominant position which he did not abuse in competition terms (and which will therefore be allowed under the competition regime) but which was deemed undesirable in relation to plurality. It is also likely that competition rules are less able to prevent unacceptable levels of cross-media ownership where each market may be seen as distinct for competition purposes. Yet this form of ownership is sometimes seen as being of most concern because it could allow an owner to promote an agenda across a number of platforms which could be more influential than involvement in just one. This was the position originally taken by the Government in relation to media mergers when the 2003 Communications Bill was published. The process by which that position changed and how the current provision in the 2003 Act relating to media mergers was introduced is fully documented later in the Report.11 The result was that the Communications Act 2003 includes provisions to allow the Secretary of State to take public interests considerations relating to plurality into account in proposed media mergers. The media ownership regime takes as its starting point the position that a variety of owners will represent a variety of different viewpoints. This cannot be taken as axiomatic as owners could have a very similar set of views and values. It is nevertheless likely that the greater the number of owners, the greater number of views. Moreover, it is difficult to regulate for different points of view, so ownership restrictions act as an effective proxy for plurality.12 Media ownership rules act as a constraint on the normal workings of the market, so successive Governments have thought it important to strike an appropriate balance between the needs of plurality and the needs of the wider economy, and to ensure that media ownership rules are no more burdensome than necessary. As more and more services become available on different platforms, concerns over ownership have diminished to some extent and greater liberalisation has been permitted. The DCMS Consultation on Media Ownership Rules in November 2001 said:13 The current ownership rules are being overtaken by a changing media landscape. In devising new, forward-looking legislation, we have two main aims. We want to
p2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on-mediaownership.pdf 11 Part I, Chapter 5 12 p3, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on-mediaownership.pdf 13 p3, para 5, ibid
10
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2.4
2.5
2.6
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encourage competition and economic growth, by being as deregulatory as possible. However, we must also allow the media to continue to perform its vital role in democratic society, as a forum for public debate and opinion.
3. the history of media ownership rules in the uK from the 1990s

Legislative background
3.1 DCMS has very helpfully provided a detailed history of the Media Ownership Rules in the UK from the 1990s to the most recent developments; this can be viewed as part of the evidence submitted to this Inquiry.14 For the purposes of the Report I merely summarise the key points. The constitutional framework for UK commercial terrestrial television and local radio sectors during the 1980s was provided by the Broadcasting Act 1980 and consolidated in the Broadcasting Act 1981.15 The Independent Broadcasting Authority (IBA) had the function of providing television and radio services additional to those of the BBC. It therefore acted as both broadcaster and regulator. It did this by entering into contractual arrangements with ITV and Independent Local Radio franchisees, whereby the contractors agreed to supply programmes for their regions and the IBA agreed to transmit them. The IBA had wide powers to preview programmes and approve schedules in advance of transmission. The issue of ownership restrictions did not therefore arise as providers of commercial TV and radio services were not owners of licences but contractors to the IBA.16 The Broadcasting Act 1990 made significant changes to this regime by abolishing the IBA and establishing the Independent Television Commission and the Radio Authority instead. The main effects of the Act were as follows:17 (a) (b) The previous contract-based regulatory system was replaced by a licensing system, with each licence subject to certain conditions and penalties for non-compliance; Licences for certain services were to be awarded by the ITC and RA through competitive tender to the highest bidder after a quality threshold and sustainability test had been passed, except in exceptional circumstances; Cable and satellite programme licences were to be issued on compliance with the ITC codes consumer protection requirements; Channel 4 was to be provided by a new non-profit making body, the Channel Four Corporation, under licence from the ITC; and Provision was made for the licensing of a new terrestrial television service, Channel 5 (which came to air in 1997).
3.2
3.3
(c) (d) (e) 3.4
The Broadcasting Act 1990 introduced ownership restrictions that licences could be held and traded. It also introduced an upper limit on any person owning more than two Regional Channel 3 licences.18 The Broadcasting Act 1996 imposed a limit of one licence where the
ibid lTC Notes, The Broadcasting Acts of 1990 and 1996, June 2003 16 pp3-4, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-onmedia-ownership.pdf 17 p4, para 7, ibid 18 Channel 3 network includes 15 Regional licences
15
14
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licence-holders total audience share was over 15%, and provided that a national licence could only be held for either Channel 3 or Channel 5.19 3.5 The Communications Act 2003 repealed the two rules which prevented the joint ownership of National Channel 3 and Channel 5, and removed stand-alone accumulation limits for all television licences. ITV plc (which resulted from the merger of Carlton and Granada in 2004) now holds all but three of the 15 Regional Channel 3 licences (those being UTV and Northern and Central Scotland).20 Provision of broadcast news 3.6 Specific controls were introduced to ensure plurality of the provision of broadcast news. The Broadcasting Act 1990 allowed for the ITC to nominate news providers who would be eligible to provide news programmes for holders of Regional Channel 3 licences (nominated news providers). It was only possible to hold 20% of one nominated news provider, and each nominated news provider was only permitted to own up to 50% of a Regional Channel 3 licence (ie 50% of any company holding a Regional Channel 3 licence). The Broadcasting Act 1996 then made further provision for all holders of Regional Channel 3 licences to, as far as possible, appoint the same (single) news provider (the appointed news provider). The purpose of this provision was to ensure that high quality national and international news was carried across all Channel 3 regions at peak times by a single news provider. This was needed because Channel 3, unlike the BBC, was not a single network, but made up of a number of Channel 3 regions under different ownership. By requiring all Regional Channel 3 licence holders to select the same nominated news provider, from providers nominated for that purpose by the ITC, the rules guaranteed a nationwide competitor to the BBCs news services. In the Governments view, this competition served to underpin the impartiality of both services, guaranteeing plurality for viewers. Eventually the Communications Act 2003 lifted all restrictions on the ownership of nominated news providers, while retaining the requirement for all Regional Channel 3 licence-holders to appoint the same nominated news provider.21 Digital TV services 3.8 The Broadcasting Act 1996 introduced the licensing regime for digital TV and, at the same time, introduced certain ownership limits in relation to the number of digital licences that could be held. These rules were removed by the Communications Act 2003, consistent with its overall deregulatory approach, so there are now no explicit ownership rules in respect of digital TV services.22
3.7
p5, paras 8-9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-onmedia-ownership.pdf More detail can be found in annex A to the submission http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/DCMS-submission_Annex-on-media-ownership-rules-from-the-Broadcasting-and-CommunicationsAct.pdf 20 p6, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-onmedia-ownership.pdf 21 pp6-7, paras 13-17, ibid 22 pp7-8, paras 18-19, ibid
19
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Satellite and cable TV services 3.9 The Broadcasting Act 1990 placed no restrictions on cable and satellite licences. This may well have been because these services were not subject to the same spectrum constraints as analogue services. The Act did place requirements on original programming in respect of direct satellite services (DBS) holding UK licenses for broadcasting on UK frequencies. No such requirement was placed on the holders of other satellite licenses (non-DBS).23 In practice, this meant that British Satellite Broadcasting was subject to this requirement, whilst Sky was not, giving a commercial advantage at the time to Sky in a market that proved not to be sufficient to support two satellite broadcasters. The Broadcasting Act 1990 also placed different ownership restrictions on DBS and nonDBS satellite services. National newspapers could not hold more than a 20% stake in a DBS broadcasting satellite channel. However, no such restriction was placed on newspapers owning non-DBS licences. The Government of the day explained that this was because the number of DBS licences was restricted by international agreement to five, whereas the number of non-DBS licences was not restricted and was likely to grow significantly. This made ownership of one or more such channels less of a significant issue in plurality terms.24 Radio 3.11 Analogue local radio The Broadcasting Act 1990 placed an upper limit on ownership of 20 analogue local radio licences. In addition there was a calculation based on coverage area designed to ensure a minimum of seven owners across the UK. The Communications Act 2003 introduced a new system that would ensure at least three local owners in any area in addition to the BBC. This was subsequently changed to secure at least two, rather than three, local owners in addition to the BBC. Where there were only one or two local radio stations in an area all ownership restrictions were removed (subject to the local cross media ownership rule designed to ensure that there were not total local monopolies). Following a report from Ofcom in 2009, all local radio ownership rules were repealed by the Media Ownership (Radio and Cross Media) Order 2011.25 Analogue national radio The Broadcasting Act 1990 placed restrictions on one person holding more than one of the three national analogue commercial radio licences. This rule was removed in the Communications Act 2003.26 Digital radio Under the Broadcasting Act 1996, a person was limited to one digital service licence or 15% of the total audience points (whichever was the higher) and was also disqualified from providing more than one non-simulcast local digital sound programme service on a single multiplex, unless there was another multiplex operating in the same geographical area. Following the Communications Act 2003, these rules were replaced by a new local points based regime; this mirrored the provisions of the analogue regime by placing a limit on digital radio licences of 55% of the points available in an area.27
3.10
3.12
3.13
23
pp8-9, paras 20-23, ibid pp9-11, para 24, ibid 25 pp11-13, paras 25-30, ibid 26 p13, paras 31-33, ibid 27 pp13-14, para 34, ibid
24
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Specific prohibitions on licence holding

3.14 There are restrictions on the holding of broadcasting licences by certain types or classes of owners. Historically there have been prohibitions on religious bodies holding broadcasting licenses. Over recent decades those restrictions have been significantly reduced, although religious bodies still cannot hold licences for Channel 3, Channel 5 or any national analogue radio licence.28 The Broadcasting Act 1990 prevented local authorities from holding broadcasting licences. The Communications Act 2003 now allows local authorities to hold broadcast licences for information purposes, and puts in place safeguards to prevent this from being exploited for political purposes.29 The Broadcasting Act 1990 also prevented political parties from holding broadcasting licences (as there were concerns that they could not run a broadcasting company with sufficient impartiality). This restriction remains in place.30 The Broadcasting Act 1990 additionally prevented advertising agencies from holding broadcasting licences and this restriction has continued.31 The Broadcasting Act 1990 also introduced some foreign ownership restrictions to non-European Economic Area (EEA) countries (it was not permitted to place restrictions on EEA companies and individuals), which were expanded upon by the Broadcasting Act 1996. Non-EEA companies could hold certain licences including for cable and satellite services. In 2002 the Government consulted on removing these restrictions and the matter was the subject of extensive debate. In the event, in circumstances fully described later in the Report,32 the Communications Act 2003 did remove the restrictions and there is now no restriction on foreign ownership of any broadcasting licence, subject, of course, to other ownership restrictions.33
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3.15
Cross media ownership

3.16 The position under the Broadcasting Act 1990 was:34 (a) National newspaper owners were tightly limited in their holdings in terrestrial TV and radio, and in domestic satellite broadcasters.35 Within each category they could hold up to 20% of one licence, and then up to 5% of any others. They were allowed full control of non-domestic satellite broadcasters in order to encourage investment in an uncertain and high-risk enterprise. (By 1996 there were no domestic satellite broadcasters and the largest non-domestic satellite broadcaster was BSkyB); Local newspaper owners were less tightly controlled, in being allowed to own regional TV or local radio broadcasters, provided there was no significant overlap between the licence area and the papers circulation area; National TV and radio (and regional Channel 3) broadcasters were limited to a 20% stake in national newspapers and non-domestic satellite licences; and There were no cross-media restrictions on ownership cable services (other than that satellite providers could not own more than 20% of a terrestrial TV or National Radio licence).
(b)
(c) (d)
28 29
pp14-15, paras 36-39, ibid p15, para 40, ibid 30 p15, para 41, ibid 31 p16, para 42, ibid 32 in Part H Chapter 4 33 pp16-18, paras 43-47, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_ Narrative-on-media-ownership.pdf 34 pp18-19, para 48, ibid 35 para 2.8, Media Ownership The Governments Proposals, May 1995
186
3.17
The Communications Act 2003 revised these rules: (a) Retention of the national rule concerning cross-media ownership between newspapers and ITV. This was expressed as follows: (i) (ii) (iii) no one controlling more than 20% of the national newspaper market may hold any licence for Channel 3; no one controlling more than 20% of the national newspaper market may hold more than a 20% stake in any Channel 3 service; and a company may not own more than a 20% share in such a service if more than 20% of its stock is in turn owned by a national newspaper proprietor with more than 20% of the market.
(b) (c)
Retention of a parallel local rule: no one owning a regional Channel 3 licence may own more than 20% of the local/regional newspaper market in the same region; Stricter application of the local radio ownership rules where potential owners had other media interests. The effect was to ensure that, in these cases, there would be a minimum of three media owners in each area across TV, newspapers and radio; A local cross-media rule (the local monopolies rule) designed to ensure that there were no complete monopolies in areas with only one or two local radio stations;
(d)
All other cross-media ownership rules were repealed. Review of ownership rules 3.18 The Communications Act 2003 requires Ofcom to review all media ownership rules at least every three years. Ofcom makes any recommendations for further reform to the Secretary of State, who can amend or remove rules by secondary legislation. The first review in 2006 recommended no change.36 In its second report in November 2009,37 Ofcom concluded that that national 20/20 rule should be retained and that the local cross media ownership rules should be liberalised so that the only restriction remaining would be on ownership of all three of: local newspapers (with 50% plus local market share); a local radio station; and a regional Channel 3 licence.38 According to Ofcom:39 this liberalisation will increase the flexibility of local media to respond to market pressures. Consumers still rely on television, radio and press for news, so going further to complete removal of the rules could reduce protections for plurality. 3.19 On 8 July 2010, the Secretary of State asked Ofcom to revisit its advice on retaining the local monopolies rule. Ofcom replied on 29 July and published a fuller version of the reply in August.40 It recognised that there had been some changes in circumstances since the original report but that a decision on whether to remove this one remaining local rule is a matter of judgement and one which is rightly made by Government and Parliament. Having considered
http://stakeholders.ofcom.org.uk/market-data-research/other/media-ownership-research/rulesreview http://stakeholders.ofcom.org.uk/consultations/morr/statement/ 38 pp21-22, para 54, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-onmedia-ownership.pdf 39 p22, para 56, ibid 40 http://stakeholders.ofcom.org.uk/binaries/consultations/morr/response-localmedia/ Local Media Final Document. pdf
37
36
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the matter further, the Secretary of State concluded that the remaining rule should also be removed; this was given effect by the Media Ownership (Radio and Cross Media) Order 2011.41 3.20 The Governments view was that local media ownership rules (for television, radio and newspapers) placed unnecessary limitations on ownership within commercial media; that the rules were no longer appropriate in a converging digital world; and that removing regulatory barriers would help established industries adapt to new environments. The deregulation of the local media ownership regulations now enables partnerships between local newspapers, radio and Channel 3 television stations to promote a strong and diverse local media industry.42
C
3.21
Media plurality public interest test

The process by which the media plurality public interest test was inserted into the Communications Bill, and the rationale behind it, is also fully outlined later in the Report.43 These provisions mean that the Secretary of State can ask Ofcom and, if necessary, the Competition Commission to investigate any merger which could have a damaging effect on plurality, diversity or standards.44 In applying the test the Secretary of State takes into account the need for: (a) (b) (c) 3.23 a sufficient plurality of persons with control of media enterprises serving any audience; a wide range of high quality broadcasting that appeals to different tastes and interests; and a genuine commitment to Ofcoms standards code.
3.22
The Government produced further guidance on how the public interest test would be operated in practice. Partly due to Iobbying from industry, Ministers indicated that they were not minded to exercise these powers where media ownership rules continued to apply or where, before the passage of the Communications Act 2003, no media ownership restrictions applied.45 The request to Ofcom is triggered by an intervention notice issued by the Secretary of State which specifies a media public interest consideration.46 A media public interest consideration is any consideration which, at the time of the giving of the European intervention notice concerned, is specified in s58(2A) to (2C) of the Enterprise Act 2002 or, in the opinion of the Secretary of State, is concerned with broadcasting or newspapers and ought to be specified in s58 of the Act (ie would need to be finalised by statutory instrument). The currently recognised media public interest considerations are:47 (a) s58(2A): the need for accurate presentation of news and free expression of opinion in newspapers;
3.24
3.25
pp22-23, para 57, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-onmedia-ownership.pdf 42 p23, para 58, ibid 43 Part I, Chapter 5 44 p23, para 59, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-onmedia-ownership.pdf 45 p24, para 61, ibid 46 depending on the type of merger, the power to issue such a notice may arise under sections 42(2), 59(2) or 67(2) of the Enterprise Act 2002 47 Communications Act 2003 http://www.legislation.gov.uk/ukpga/2003/21/Section/375
41
188
(b)
s58(2B): the need for, to the extent that it is reasonable and practicable, a sufficient plurality of views in newspapers in each market for newspapers in the UK or a part of the UK; s58(2C)(a): the need, in relation to every different audience in the United Kingdom or in a particular area or locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience; s58(2C)(b): the need for the availability throughout the United Kingdom of a wide range of broadcasting which (taken as a whole) is both of high quality and calculated to appeal to a wide variety of tastes and interests; and s58(2C)(c): the need for persons carrying on media enterprises, and for those with control of such enterprises, to have a genuine commitment to the attainment in relation to broadcasting of the standards objectives set out in s319 of the Communications Act 2003. These require, among other things, that news included in television and radio services is reported with due impartiality and the impartiality requirements of s.320 are complied with and that news is reported with due accuracy.
(c)
(d)
(e)
Paragraph 7.24 of the guidance issued by the DTI identifies the following as relevant to this question: previous compliance with Ofcom standards, the behaviour of the media owners other broadcasting enterprises, behaviour in other jurisdictions and compliance with other standards (including under self-regulatory regimes).48 3.26 An enterprise is a media enterprise if it consists of or involves broadcasting;49 but where the public interest concern is that as set out in s58(2C)(a) and a merger involves only one broadcasting company, a merger is still a media merger of media enterprises if the other company is a newspaper enterprise.50 Where there has been an intervention notice, Ofcom is required to report to the Secretary of State on whether, having regard only to the public interest consideration specified in the intervention notice, it is or may be the case that the merger may be expected to operate against the public interest. It is then for the Secretary of State to determine whether or not the merger should be referred to the Competition Commission for further review and, if necessary, consideration of remedies.51 There have only been two occasions on which the Secretary of State has issued an intervention notice in relation to a media merger. On both occasions, the public interest consideration was: the need, in relation to every different audience in the United Kingdom or in a particular area or locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience.52 The first of these occasions, the completed acquisition by British Sky Broadcasting Group plc (BSkyB) of a 17.9% stake in ITV, was a UK merger. Ofcom considered the plurality public interest considerations and recommended a reference to the Competition Commission.53
3.27
3.28
3.29
pp23-24, para 25.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-EdRichards.pdf 49 s58A(1 ) 50 s58A (2). A newspaper company is an enterprise consisting in or involving the supply of newspapers (Section 58A(3)). A newspaper is a daily, Sunday or local (other than daily or Sunday) newspaper circulating wholly or mainly in the UK or in a part of the UK (Section 44(10)) 51 p24, para 25.7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Ed-Richards. pdf 52 p28, para 32.1, ibid 53 http://webarchive.nationalarchives.qov.uk/20101227023510/http:llwww.bis.qov.uk/files/file39607.pdf
48
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At the same time, the OFT advised that the transaction was a merger and that it was or may be the case that the merger may be expected to result in a substantial lessening of competition.54 The Secretary of State referred the case to the Competition Commission. The Competition Commission considered that the transaction raised competition issues, but not plurality issues, and on its recommendation the Secretary of State required BSkyB to sell shares so as to reduce its holding to below 7.5%. The decision was appealed to the Competition Appeal Tribunal and to the Court of Appeal; the Court of Appeal upheld the Competition Commissions decision.55 3.30 The second occasion, the proposed acquisition by News Corporation of the shares in BSkyB it did not already own, was an EC merger.56
4. history of the newspaper ownership regime

Before the Communications Act 2003 4.1 4.2 DCMS has also very helpfully provided a history of the newspaper ownership regime.57 I draw heavily on it and gratefully acknowledge the work that was put into it. Since 1965 there has been a separate regime in place in respect of newspaper mergers. This was first introduced by then Monopolies and Mergers Act 1965, following the Report of the Royal Commission on the Press in 1962 (the Shawcross report). Shawcross concluded that control of the press was a matter of particular public sensitivity and that the increasing concentration of newspaper ownership in too few hands could stifle the expression of opinion and argument and distort the presentation of news. The Fair Trading Act 1973 (FTA) subjected most newspaper mergers to a stricter system of control than other mergers. The FTA required the Competition Commission (CC) to look at whether the transfer in question might be expected to operate against the public interest, taking into account all matters which appeared in the circumstances to be relevant. Any such transfer would be automatically void without the written consent of the Secretary of State. Proprietors had to obtain prior consent from the Secretary of State for Trade and Industry (as was) before acquiring a newspaper (or newspaper assets) where the total paid-for daily circulation of the newspapers involved was 500,000 or more. The Secretary of State was required to refer newspaper applications to the CC for a detailed report before deciding whether or not to consent to the transfer. Exceptions to this rule meant that the Secretary of State: (a) could consent to a transfer without a CC reference if he was satisfied that the newspaper was not economic as a going concern and that, if it was to continue as a separate newspaper, the case was urgent (s58(3)(a) of the FTA); had to consent to a transfer without a CC reference if he was satisfied that the newspaper concerned was not economic as a going concern and that it was not intended to continue as a separate newspaper (s58(3)(b) of the FTA); and
4.3
(b)
http://webarchive.nationalarchives.qov.uk/20101227023510/http://www.bis.,qov.uk/files/file39606.pdf p28, para 32.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Ed-Richards. pdf 56 This is considered in detail in Part I, Chapter 6 57 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on-newspaperownership.pdf
55
54
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(c)
could consent to a transfer without a reference to the CC if he was satisfied that the newspaper being taken over had average daily sales of 50,000 or less (s58(4) of the FTA).
Communications Act 2003

4.4 The Communications Act 2003 was designed to replace the FTA regime with a streamlined and less burdensome process that focused regulatory action on those few newspaper transfers that appeared to raise competition or plurality concerns. Under the Communications Act 2003 there is no longer a requirement for the Secretary of States prior consent to newspaper transfers. The new regime applies to all transfers that satisfy the jurisdictional criteria for mergers in the Enterprise Act (broadly speaking, the turnover of the body being acquired exceeds 70m or the merger would result in market-share of 25% or more), meaning that the smallest local newspapers were removed from regulation altogether. Where a takeover or merger does not meet the jurisdictional criteria it is still possible for the Secretary of State to intervene under the special public interest regime; this applies in any case where the newspaper to be acquired has a 25% share of a market in a substantial part of the United Kingdom. The Secretary of State retains the power to refer those cases that involve the public interest in plurality for wider investigation by the CC. The plurality public interest considerations are set out in s58 (2A) and (2B) of the Enterprise Act 2002 and cover: (a) (b) (c) 4.7 accurate presentation of the news in newspapers; free expression of opinion in newspapers; and to the extent reasonable and practicable, a sufficient plurality of views in newspapers, in each market for newspapers in the UK or a part of the UK.
4.5
4.6
Where there has been a reference to the CC, it will make recommendations as to any remedies it deems appropriate to meet competition or plurality concerns. The final decision on any action to take with respect to plurality issues rests with the Secretary of State. However, the Secretary of State may seek the advice of Ofcom on the CCs recommendations on the plurality aspects of the transfer. He can disregard the competition authorities proposed solutions to competition problems, but only where the plurality issues justify this course of action: the Secretary of State will decide overall on the basis of a public interest test that will take account of both plurality and competition.
Developments since 2003: local media assessment

4.8 The interim Digital Britain report included an invitation to the Office of Fair Trading to conduct a review of the local and regional media merger regime. The conclusions of this review were published in the final Digital Britain report. The OFT broadly considered that the existing merger framework was sufficiently robust and flexible, but recommended that a number of small changes would be advantageous. This included amending OFT guidance to ensure that, where a local media merger raised prima facie competition issues, the OFT would ask Ofcom to provide a Local Media Assessment (LMA) covering relevant factors arising from their understanding of media markets. The OFT subsequently revised their Jurisdictional and Procedural Merger Guidance accordingly.
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4.9
Ofcom has to date conducted one Local Media Assessment, concerning the proposed acquisition by Kent Messenger Group (KMG) of seven newspaper titles owned by Northcliffe Media. Ofcom provided its Local Media Assessment to the OFT on 2 September 2011. Ofcom considered that a merger could provide the opportunity to rationalise costs, maintain quality and investment, and provide a sounder commercial base from which to address long-term structural change, for example by expanding the availability of online and other digital local services. It also said that these potential benefits needed to be weighed against any potential customer harm resulting from reduced competition identified in the OFTs overall assessment. Despite this, on 18 October 2011, the OFT referred the proposed merger to the Competition Commission, and the CC cancelled its inquiry after KMG announced it was abandoning the proposed acquisition as a result of the referral and some of the titles concerned were closed. According to KMG The costs and time required for a full Competition Commission review would be completely unreasonable for a business of our size and for a deal of this scale. 58
58
http://www.guardian.co.uk/media/greenslade/2011/oct/18/local-newspapers-mediabusiness
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parT D
D
STanDarDS
ChapTer 1 The hiSToriCal BaCkgrounD

1. Introduction
1.1 In order to understand the present position in relation to press regulation, it is necessary to examine what has happened in the past. This chapter of the Report examines the content and context of the three Royal Commissions into the British Press undertaken since the Second World War, the Younger Report into Privacy of 1972, and the two reports of Sir David Calcutt QC into privacy and the press published in 1990 and 1993. Taken together, these form the formal public policy response to concerns with the press, press standards and the behaviour of journalists and others acting on behalf of newspapers and their employees, in the post-war period. It can be argued that the findings of the three Royal Commissions as well as the reports of Sir David Calcutt not only help to elucidate a pattern of press behaviour that remains pertinent to the work of this Inquiry, but also set out a series of attempts to find a solution to problems that remain broadly unchanged and unaddressed. Indeed, it has been contended by some witnesses to the Inquiry that the six documents that form the backdrop to this chapter bear telling testament to a misplaced faith in the ability of the industry to develop and lead self-regulatory systems capable of offering appropriate real redress to those who have been wronged, and of constituting a sufficient solution to problems of unethical and unlawful behaviour in the newspaper industry. In this regard, the Media Standards Trust has said in its submission to the Inquiry:1 The conclusion that self-regulation on its own, without any greater independence or enhanced powers, does not provide adequate protection for the public or for journalists - is based in large part on an historical analysis of the continued failure of the various voluntary self-regulatory bodies that have existed since the first Royal Commission on the Press published its report in 1949.
1.2
Some context
1.3 As has been emphasised in this Report on more than one occasion, the British press has a long held reputation for the vitality and quality of its journalism as well as the diversity of voices with which it speaks. Certainly, it has been with something approaching envy that overseas commentators examining the British press both historically and today have been impressed by both its freedoms and the breadth and scope of its journalism. In this regard, it is worth highlighting the very large number of occasions that the Inquiry has been told with real pride by commentators, journalists, proprietors and politicians about the achievements of the British press and the valuable role it plays in the public life of the nation. For my part, I do not doubt that, at its best, British journalism is and has historically been world-beating: it has uncovered scandal, reported on significant events, and campaigned on issues of importance with both decency and integrity. Furthermore, it has been made very clear during the course of this Inquiry that journalism of the highest quality is not restricted only to a certain section of the press but is to be found across its many distinct and different
1.4
p13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Standards-Trust.pdf
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parts: not only in the broadsheets but also in the mid-market titles and the tabloids along with the regional and local press, both in print and now also in their online editions. 1.5 Before dealing with the analysis of historical responses to the culture and practices of the press, it is worth restating that the press does not exist in a vacuum. It is subject to other forces. Technological and societal changes have increased the pressures on what is and has historically been an intensely competitive market. The share which the newspaper industry holds of the wider communications market has been steadily eroded, first by radio and then the advent and growth of television. Television has moved from one initial offering by the BBC to the explosion of channels available through the introduction of satellite television services and, further, with the continuation of this trend through the rollout of digital television. The loss of market share has been further exacerbated by the internet and the increasing availability of mixed media services through that medium. Overall, these forces have had an important role in shaping the culture, practices and ethics of the press over decades. It should not be thought that the culture and practices that have given rise to the establishment of this Inquiry are in any way new, even if much of the technology which underpins new developments is. Concerns as to the behaviour and practices of the press have been articulated by both private individuals and Governments throughout the twentieth century, and (in one form or another) very much earlier. Indeed, some of the practices and concerns that gave rise to the 1947 Royal Commission into the Press, and in particular those in relation to the breach of privacy of individuals, have been effectively repeated before this Inquiry. Thus, the historical review carried out in this chapter demonstrates a number of common themes; in particular, it reveals not merely consistent and similar complaints over the preceding decades, but also consistent and similar proposed solutions.
D
1.6
2. The royal Commission into the press 1947

2.1 Shortly after the election of the Labour Government in May 1945, the National Union of Journalists (NUJ) passed a resolution which called for the new administration to establish an independent Commission to examine, among other things, structures of ownership and control of British newspapers. The NUJ resolution reflected growing concern about the influence of a small group of newspaper publishers who had substantively increased their share of the national newspaper market in the inter-war period. The NUJ resolution also gave voice to other concerns and called for a Commission to investigate:2 ...with the object of furthering the free expression of opinion through the Press and the greatest practicable accuracy in the presentation of news, to inquire into the control, management and ownership of the newspaper and periodical Press and the news agencies, including the financial structure and the monopolistic tendencies in control, and to make recommendations thereon. 2.2 The resolution led to the tabling of a motion in the House of Commons that repeated its central concerns. Advanced by members of Parliament who had either worked as journalists or were still employed as such, the motion also made an explicit connection between the growing concentration in newspaper ownership by a small number of proprietors as well as the substantial increases in the profitability of some newspapers since the conclusion
Moore, M, The Origins of Modern Spin: Democratic government and the media in Britain, 1945-51, p106
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of hostilities, and a supposed decline in the quality of British journalism.3 The motion was passed by MPs on the 29 October 1946. It read:4 That, having regard to the increasing public concern at the growth of monopolistic tendencies in the control of the Press and with the object of furthering the free expression of opinion through the Press and the greatest practicable accuracy in the presentation of news this House considers that a Royal Commission should be appointed to inquire into the finance, control, management and ownership of the Press. 2.3 In part, the concerns articulated in the resolution of the NUJ and the Parliamentary motion reflected understandable public disquiet at a return to business as usual by the newspaper industry after the war years (which had entailed strict Government control of all content, print as well as the means of distribution). The reversion to a peacetime modus operandi also heralded the return, after the quiescence of the war years, of a number of sharper journalistic practices increasingly unpalatable to the public at large. These were manifest to differing degrees in accusations of inaccuracy and political bias on the one hand and alarm at the intrusion of journalists into the private lives of individuals on the other.5 However, public indignation at such behaviour was not new; the culture and practices of some parts of the press had been noted as a matter of concern by the immediate pre-war Government-appointed Political and Economic Planning (PEP) group which, in 1938, had formulated the first significant proposal for formal self-regulation of the press.6 Among other things, the PEP groups final report argued for the establishment of a voluntary Press Tribunal led by an independent Chairman and supported by a panel of experts drawn from the newspaper industry. This, the report suggested, should consider and mediate complaints made by members of the public about the press. The outbreak of war drew an end to any further work to achieve this end. The Commission was granted a broad remit by the Government of Clement Atlee and was charged with seeking answers to a number of questions that went further than the concerns that have been outlined above. The Government asked that the Commission investigate:7, 8
2.4
2.5

3 4
Whether the degree of concentration of ownership of newspapers, periodicals, and news agencies at present exists; Whether there is a tendency towards further concentration; Whether such concentration as exists is on balance disadvantageous to the free expression of opinion or the accurate presentation of news; Whether any other factors in the control, management or ownership of the Press or of the news agencies, or any external influences operating on those concerned in control, management or ownership, militate against this freedom and accuracy; and
ibid, p4 Great Britain, Royal Commission on the Press 1947-1949: Report, p3 5 OMalley, T and C Soley, Regulating the Press, pp51-56 6 Political and Economic Planning, Report on the British Press 7 whereas [w]e have deemed it expedient that a Commission should forthwith issue with the object of furthering the free expression of opinion through the Press and the greatest practicable accuracy in the presentation of news, to inquire into the control, management and ownership of the newspaper and periodical Press and the news agencies, including the financial structure and the monopolistic tendencies in control, and to make recommendations thereon, ibid, piii 8 ibid, pp4-5
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2.6
How this freedom and accuracy may best be promoted.
When the Royal Commission reported in 1949, it made a number of damning findings. It found that there had been a progressive decline in the calibre of editors and in the quality of British journalism which, it argued, if not addressed would undermine not only the freedom of the press itself, but also the welfare of the country at large. The Commission recommended that a system of self-regulation should be established, built around a General Council of the Press. The Commission was unambiguous in its consideration of statutory controls which, it argued, would unacceptably restrict the freedoms of the press. It said that it was necessary:9 to safeguard the freedom of the press; to encourage the growth of a sense of public responsibility and public service amongst all engaged in the profession of journalism [...]; and to further the efficiency of the profession and the well being of those who practiced it.
2.7
The Royal Commission hoped that the proposed General Press Council would function both as a guarantor of the freedom and prestige of the Press, by representing the interests of the newspaper industry through a single, unified voice as well as a brake on poor and unethical journalistic practices. In so doing the Royal Commission made a fundamental statement on the nature of the relationship between the state of the press and the health of the nation as a whole, suggesting a correlation between the ownership structures of the newspaper industry and the incidence of inaccurate reporting and poor journalism. Significantly too, the Royal Commissions report recognised that, as a consequence of technological and commercial changes, the ability of newspapers to disseminate to the public a mass of information on subjects as complicated as they are important had increased, but there had been no commensurate increase in journalism fitting or appropriate to such purpose.10 The Report of the Royal Commission made a number of recommendations, some of which added important detail to the central proposal of the formation of this General Council. For instance, the Commission recommended that the Press Council be made up of 25 members, a proportion of whom (some 20%) would be appointed from outside the industry and would ensure that lay interests were adequately represented. The Commissions Report also set out what Sir William David Ross and his fellow commissioners regarded as the necessary and non-negotiable elements of an effective regulatory regime for the British press. These were: a code of conduct; powers to adjudicate and rule on complaints, including those received from third parties as much as from individuals directly affected, and powers to impose sanctions where appropriate. It was intended by the Commission that the Press Council should have sufficient powers to maintain press standards and where appropriate to impose sanctions for poor conduct:11 It should have the right to consider any complaints which it may receive about the conduct of the Press or of any persons towards the Press, to deal with these complaints in whatever manner may seem to it practicable and appropriate, and to include in an annual report a statement of any action taken.
2.8
2.9
It is clear from the recommendations made by the Royal Commission that it intended that the Press Council should have a broad remit, encompassing a number of potentially problematic and conflicting functions; this would include being a champion of press freedom as well as a defender of the rights of members of the public who might have been mistreated by the
OMalley, T and C Soley, Op cit, p55 ibid, p164 11 Great Britain (1949) Op cit, p172
10
198
press. In addition the Royal Commission proposed that the General Council of the Press should have appropriate powers to monitor and rule on the terms and conditions of the employment of journalists and other newspaper workers, whilst also promoting the interests of consumers and conducting research into the long-term social and economic impacts of the print industry. The Commission was clear; its proposals were not intended to safeguard its own liberty but to save the press from itself. 12 2.10 Although Parliament unconditionally accepted the recommendations of the Commission, the industry response to them was slow and much wrangling and negotiation followed. Indeed, it has been convincingly argued by some commentators that such progress was only made as a consequence of the real threat of statutory regulation.13 That came about in this way. The initial industry response of the press to the Report of the Royal Commission found little favour with the then Government. That response was seen as concentrating too much power in the hands of already powerful newspaper proprietors, and paying too little heed to many of the recommendations contained in the report. The NUJ also declared the newspaper industrys proposals to be unacceptable to the Union and its members.14 To deal with what appeared to be a palpable lack of progress and refusal on the part of the newspaper industry to grapple with the fundamental criticisms and concerns at the heart of the Royal Commissions report, in November 1952 the Labour backbench MP, CJ Simmons, with the backing of a number of members of the Shadow Cabinet, introduced a Private Members Bill. This Bill was intended to establish a Press Council in statute. The threat of statutory regulation quickly persuaded newspaper publishers to come to an agreement that was deemed satisfactory to the Conservative Government, which then took action to prevent a second reading of the Bill.15 When it was eventually established in 1953, the General Council of the Press, as had been fashioned by the industry and endorsed by the Conservative Government, was substantially different from the proposals that had been recommended by the Royal Commission. In many respects, the changes which had been made to the structures and functions of the nascent Press Council were to the benefit of the industry and not to those who complained of having been the victims of press mistreatment. Significantly, proposals for lay representation on the Press Council, including the appointment of Chairman from outside the industry, had been dropped. Further, the recommendation that the Press Council be able to investigate and make findings on complaints brought by members of the public was changed so that, in most circumstances, only complaints by persons affected by stories would be accepted; third party complaints would be entertained on a discretionary basis and exceptionally. Other recommendations relating to the promotion of standards and the employment conditions of journalists and other newspaper employees were also omitted from the final proposals brought forward by the industry.16 The Media Standards Trust has noted in its submission to the Inquiry the prescience of the final contribution made by CJ Simmons to the Parliamentary debates on the establishment the Press Council, in which he said:17
2.11
2.12
2.13
2.14
12
Great Britain (1949) Op cit, p178 Snoddy, R, The Good, the Bad, and the Unacceptable: The hard news about the British press, p84 14 OMalley, T and C Soley, Op Cit, p56 15 ibid, pp57-58 16 ibid, p59 17 OMalley, T and C Soley, Op cit, p58
13
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[To] give the voluntary Press Council a chance to prove its worth, efficiency and competence to do the job to which it has set its hand, I give warning here and now that if it fails some of us will again have to come forward with a measure similar to this Bill.
3. The royal Commission of 1962 and the Younger Committee into privacy
3.1 The General Council of the Press was neither the body nor the panacea that the Royal Commission had intended. From the outset it was the subject of criticism, particularly from those who thought themselves the victims of press mistreatment. It was seen as self-serving and concerned more with defending the interests of journalists and newspaper editors than in addressing the many issues identified by the first Royal Commission on the press. In 1961 a second Royal Commission was established: ...to examine the economic and financial factors affecting the production and sale of newspapers, magazines and other periodicals in the United Kingdom. 3.2 Lord Shawcross, a former Labour Attorney General and then President of the Board of Trade, later becoming a cross-bench peer, was appointed Chairman of the second Royal Commission. Lord Shawcross was a passionate defender of press freedoms and had spoken publicly on the subject on a number of occasions. He brought a formidable intellect to the task as well as a reputation for gravitas and forensic analysis achieved as Chief UK Counsel for the Prosecution in the post-war Nuremberg trials. The establishment of a second Royal Commission on the press was prompted in part by the closure of a number of national and provincial newspapers which had led to a further, and to some, worrying concentration in the ownership of newspaper titles. Its primary purpose was to look at the costs of production, printing and distribution as well as at the nascent impact of television on readership and advertising revenues, and to consider whether these factors had affected the diversity of ownership and control. The terms of reference to the Commission explained it thus:18 ...to examine the economic and financial factors affecting the production and sale of newspapers, magazines and other periodicals in the United Kingdom. 3.4 The Commission was not primarily concerned with the performance of the press or with questions of ethical behaviour, and indeed its terms of reference made no express reference to either of these matters. But its very establishment reflected political and public concern at the steady build up of complaint, as well as public disapproval, at press behaviour. Some contemporary commentators sought to explain this further decline in standards through the prism of increased competition for circulation. Others called into question the effectiveness of the overall system of self-regulation through the General Council of the Press, decrying its inability to put an end to press intrusion into the private lives of individuals.19 It is a matter of some significance that Lord Shawcross commented on the failure to heed the lessons of the first Royal Commission:20 [h]ad they been carried out much of our own inquiry might have been unnecessary.
18 19
3.3
Great Britain, Royal Commission on the Press 1961-1962: Report, p8 OMalley, T and C Soley, Op cit, p60 20 Great Britain, Royal Commission on the Press 1961-1962: Report, p101
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3.5
The Shawcross Commission published its findings in September 1962. The Commission levelled substantial criticism at the General Council of the Press for, in particular, its failure to implement many of the recommendations made by the first Royal Commission on the press. These specifically included those recommendations relating to the monitoring and enforcement of standards, the involvement of lay representatives on the Council and its failure to heed recommendations relating to the monitoring of levels of newspaper ownership. The Shawcross Commission clearly identified those issues that it deemed had led to a decline in press standards, and it called for an improvement in the performance of the General Council of the Press. However, the solutions it proposed were little different from those articulated by the first Royal Commission in 1949. It recognised the desirability of a voluntary system of self-regulation for the press, but made clear that any such system of regulation would need to be built around an effective and credible body rather than the General Council of the Press as it was then constituted. It recommended that the industry should be given two years to bring forward, develop and implement appropriate plans but, should these not be forthcoming, recommended that the Government should introduce the legislation necessary to establish a Press Council in statute, with powers equivalent to those recommended originally by the first Royal Commission in 1949. Lord Shawcross said at the time:21 If... the Press is not willing to invest the Council with the necessary authority and to contribute the necessary finance the case for a statutory body with definite powers and the right to levy the industry is a clear one.
3.6
3.7
Anxious at the potential threat of statutory legislation, the industry response to the recommendations of the second Royal Commission was rather swifter than had been the case following the first Royal Commission. The General Council of the Press was reformed as the Press Council. For the first time it included lay representation on its board. The newly formed Press Council also made amendments to its constitution to reflect the wider recommendations made by the Commission. Clauses that were no longer regarded as relevant to its role and remit were removed and, in particular, a new clause was introduced in relation to the consideration of complaints about the press.22 This empowered the Press Council to deal with them in whatever manner might seem practical and appropriate.23 The reformed Press Council also took a more proactive approach to the consideration of some of the most significant challenges facing the press and published guidance on contempt of court, privacy and defamation. These reforms, however, were not universally well-received. Questions were asked almost immediately about the ability of the Press Council to regulate the actions and conduct of newspapers. These had altered little over time, and the press continued to push at the boundaries of what was considered acceptable journalism. Coverage of the Profumo scandal and, in particular, the Suns exclusive interview with Christine Keeler, as well as the vilification of the child-killer Mary Bell, by turns titivated, entranced and horrified the public. Further, allegations of payments for stories relating to the Profumo affair, as well as to witnesses in the case of the Moors Murders, undermined confidence in the efficacy of the Press Council as the regulatory body for the press.24 Perhaps unsurprisingly, by the end of the decade there were calls for a further Royal Commission on the press as well as an inquiry into the workings
3.8
21 22
ibid, p102 OMalley, T and C Soley, Op cit, p64 23 ibid, pp63-65 24 ibid, pp64-67
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of the Press Council which had struggled to be seen as anything more than a champion of the press [rather] than as a watchdog for the public.25 3.9 The introduction of a Private Members Bill on privacy forced the hand of the Wilson Government, and in 1970 a new Committee looking, once again, at the behaviour of the press was constituted.
The Younger Committee

3.10 The Committee on Privacy, chaired by Sir Kenneth Younger, was established to examine a number of issues relating to the personal privacy, including the responses of the Press Council to alleged breaches of privacy in the press. Sir Kenneth Younger was a barrister by training and former Labour Party politician who had served as a junior Home Office Minister in the Government of Clement Atlee. After leaving Parliament in 1957, Sir Kenneth had campaigned for progressive political reform with regard to a number of social issues including the legalisation of homosexuality and reform of prison conditions. Published in July 1972, the report of the Younger Committee on privacy was highly critical of the Press Council and its seeming inability to command the confidence of the British public. The Committee suggested a causal link between the level of lay representation on the Press Council and the overall credibility of that organisation in the public mind. The Commission duly recommended that the Press Council increase the representation of lay members; it also recommended that steps be taken to ensure the independence of lay appointments because, in its view, the process of appointment was both opaque and too readily open to influence from the industry.26 Of the recommendations made by the Younger Committee, perhaps the most significant related to the publication of Press Council adjudications by newspapers. The Younger Committee suggested that where an adverse adjudication had been issued by the Council, it should be given similar prominence to that given to the original article.27 The Younger Committee also recommended that the Council make efforts to codify its adjudications on privacy and build up a body of case law understood by the industry.28 It is perhaps indicative of the prevailing mood that the Committee did not unanimously agree the recommendations made in the final report. However, a minority of the commissioners who worked together with Sir Kenneth, did not believe the recommendations to be sufficiently far-reaching, and a minority report was published which recommended among other things a general law of privacy to provide individuals with proper protection from unjustified press intrusion.29 The reforms of the Press Council, which were finally implemented in July 1973, did not encompass the most significant of the recommendations made in the Younger Report. In particular, recommendations on the prominence of adjudications and the codification of rulings had been dropped. Lay membership on the Press Council was increased by four to ten, which was exactly half the number of industry representatives. Begrudgingly accepting the Committees recommendation, the Chairman of the Press Council, Lord Pearce, noted that the Younger Report had provided no evidence to support the conclusions it made linking public confidence in the Press Council to the proportion of lay representatives but, nonetheless,
D
3.11
3.12
3.13
25 26
Robertson, G People Against the Press: An Inquiry into the Press Council, p13 Frost, C, Journalism Ethics and Regulation, p217 27 Great Britain, The Report of the Committee on Privacy, p13 28 OMalley, T and C Soley, Op cit, p69 29 Snoddy, R, Op cit, p88
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further minor changes were made to increase the number of lay representatives serving on the Complaints Committee.30 3.14 Following the publication of the Younger Report, public criticism of the Press Council, characterised by Lord Pearce as assaults on the principle of self-regulation, became more commonplace.31 Certainly, the tensions between the regulator, the regulated and the public were made more acute by the political and social tensions between the Government, the trade unions and the industry more broadly, and did little to address the failings, both perceived and actual, of the Press Council. Indeed, the performance of the Press Council was regarded by the Government of the day as so inadequate that, within a year of publication of Sir Kenneth Youngers report, not only was a third Royal Commission on the Press established, but it was given an express remit to examine in detail the responsibilities, constitution and functioning of the Press Council. 32
D 4. The royal Commission of 1974

4.1 The Third Royal Commission on the Press was established on 7 March 1974 under the Chairmanship of Professor Oliver (later Lord) MacGregor, then a leading academic in the field of socio-legal studies and medical sociology and, immediately before his appointment, a fellow of Wolfson College, Oxford. Much later, he was appointed first Chairman of the Press Complaints Commission. The MacGregor Commission was constituted not only in the context of ongoing discussions on the recommendations of the Younger Report on privacy but also against a continuing backdrop of concern at the behaviour of journalists and the press more widely. Public and political frustration was also growing at the apparent inability of the Press Council to curb the worst excess of such behaviour or to provide sufficient redress to those who had been wronged by the press. The MacGregor Commission was granted a broad remit and was invited to:33 ...inquire into the factors affecting the maintenance of the independence, diversity and editorial standards of newspapers and periodicals and the public freedom of choice of newspapers and periodicals, nationally, regionally and locally. 4.3 When it reported in 1977, the McGregor Commission sought to explain the real difficulties it had faced in reaching its recommendations. The Commission expressed concern that there was no real public or political consensus on the role of press in British society. It recognised that the press should not be subject to state control but it refused to advocate a press that was subject only to the unregulated forces of the market and the pursuit of profit.34 Although undecided on the most suitable form of regulation for the press, the Commission was unequivocal in its criticism of the Press Council both as a regulator of press standards and as able to provide appropriate means of redress. It recommended wholesale changes to both the structure and functions of the Press Council. The Commissions proposals for reform of the Press Council included a reiteration of the dormant recommendations of the first and second Royal Commissions as to the prominence
4.2
4.4
30 31
OMalley, T and C Soley, Op cit, p69 ibid, p71 32 Great Britain, Royal Commission on the Press: Final Report, p(i) 33 ibid, pp(i-ii) 34 ibid, p11
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and location of adjudications. Lord MacGregors Commission, in line with the previous Royal Commissions and the Younger Commission, also proposed that the question of confidence in the Press Council should be addressed through an increase in the number of lay representatives and the appointment of a lay Chairman. It also recommended that the Press Council should seek to curb the worst excesses of the press through the development and implementation of a written code of conduct. The Commissions report noted:35 ...it is unhappily certain that the Council has so far failed to persuade the knowledgeable public that it deals satisfactorily with complaints against newspapers. 4.5 The MacGregor Commission also made recommendations intended to effect a fundamental shift in the treatment and handling by the Press Council of complaints made by members of the public. It proposed that the Press Council should not only act as mediator and arbitrator of complaints but should also actively seek, where appropriate, to secure the swift publication of adjudications, where necessary on the front page. The MacGregor Commission also entered new terrain, as its recommendations included:36 The creation of a Conciliator, drawn from the staff of the Council, to propose remedies between complainants and newspapers: The extension of the Councils doctrine of right of reply, and to uphold a newspapers making space available to those it has criticised inaccurately (although the Commission rejected the introduction of a legal right of reply on the principle that the press should not be subject to different laws than ordinary citizens);

4.6
The power to investigate the conduct of the press without waiting for a formal complaint; to introduce the practice of undertaking wider reviews of publications and journalists involved in disputes; The amendment of the Councils existing position on accuracy and bias, so that inaccuracy should be prima facie evidence for upholding a complaint; The Chairmans role to be extended to chairmanship of the Appointments Commission; and That the Council should accept recommendations for lay appointments from any source.
In line with the approach of the Second Royal Commission, the final report of the MacGregor Commission suggested that if the response of the industry and Press Council was insufficient to address ongoing concerns as to press conduct and restore confidence in the Press Council, then a statutory solution might need to be sought.37 That said, Professor MacGregor remained hopeful that such measures would not be necessary. The conclusion to its report set out its aspiration and belief that:38 ...these recommendations will be accepted and acted on by the Press Council, and that it will fulfil the hopes that were held for it in 1949.
35 36
ibid, p13 ibid, pp235-236 37 Snoddy, R, Op cit, p91 38 ibid, p215
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4.7
In a yet further parallel to the Younger Review, the MacGregor Commission published a minority report, its adherents taking the line that more was needed to modify the culture, practices and ethics of the press.39 Much as the publication of the MacGregor Report in 1977 had mirrored the publication of the Shawcross report in 1962, there were many similarities between the reactions of the Press Council and the industry to the two sets of recommendations. The Press Council rejected the most significant recommendations of the MacGregor Commission, arguing that they amounted to an unnecessary restraint on the press and muzzled freedom of expression, despite widespread and very public calls for meaningful reform. In all, five out of twelve of the MacGregor Commissions recommendations for reform of the Press Council were explicitly rejected, including the recommendation for a written Code of Conduct, and a number of others were de facto ignored.40 Furthermore, where the call for reform was heeded and changes implemented, that implementation was partial and incomplete. As the Media Standards Trust has fairly pointed out, this repeated the:41 ...previous outcomes of 1953, 1963 and 1973 (when the recommendations of the first two Royal Commissions and the Younger Report were implemented).
4.8
4.9
Of the recommendations made by the MacGregor Commission in relation to the Press Council, only those relating to lay representation, the appointment of a Conciliator and to the seeking of nominations from any source were adopted in full. Yet although the reaction of the industry was predictably obstructive, the reaction of the public was different. Whereas the newspaper industry had criticised the recommendations made by Professor MacGregor because of the restrictions they believed the proposals would, if implemented, have placed not only on freedom of speech but also on the ability of journalists to hold the rich and powerful to account, public criticism of the report focused on the perceived weakness of its proposals, particularly in relation to the Press Council. In a curious twist of fate, contemporary commentators also suggested that there were unintended consequences to the publication of the MacGregor report, namely that the extent of the criticism of the Council in the report weakened it still further and did little to improve the long-term credibility of that body. 42
4.10
5. The first report of Sir David Calcutt QC

5.1 It is clear that neither the MacGregor Commission nor the limited and begrudging response of the industry to its recommendations did much to stem the increasingly growing sense that self-regulation of the press through the offices of the Press Council was not an effective means of limiting harmful press behaviour. Rather, they fostered a polarisation of the debate on the role of the press in British society and the most effective means of regulating what many believed to be the most harmful aspects of press behaviour. Indeed, the period between the publication of the report of the third Royal Commission and the formation of the Press Complaints Committee in 1990 (following the publication of the first of the reviews of the press by Sir David Calcutt) witnessed some of the most egregious examples of press
Great Britain (1977), Op cit, p241 ibid, pp77-78 41 ibid, p78: [The Council] rejected the Commissions suggestion that it should seek undertakings that newspapers would publish adjudications upholding complaints against them on their front page. This was, of course, a recommendation, not a suggestion. 42 OMalley, T and C Soley, Op cit, p77
40
39
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misconduct. These included allegations of cheque book journalism in relation to the Yorkshire Ripper, Peter Sutcliffe, defamatory allegations made in The Sun about the singer, Elton John (which led to the award of record damages for libel in 1987), the coverage of the television presenter Russell Hartys illness and subsequent death in 1988, and the coverage of the alleged behaviour of Liverpool football fans during the Hillsborough disaster in 1989. Some of these examples of breaches of privacy and defamatory reporting became stories in their own right. The growing list of high-profile incidents involving harmful press behaviour tested public and Parliamentary support for the Press Council and led to a crescendo of criticism.43 5.2 The corollary to this was the continued erosion of public support for voluntary self-regulation. It should not be doubted that contemporaneous arguments about journalistic freedoms and the most effective means of regulating the British press were amplified through the wider travails and industrial disputes that afflicted the industry during this period. These paralleled a growing ideological divide in British politics. Back in 1974, the Labour Party had published a report entitled The People and the Media which set out its thinking on the British media and communications markets. It proposed that a joint regulatory code should be developed for both broadcasting and the press, and that public confidence in the regulator should be fostered through greater transparency, regular public review of that body and a legally enforceable right of reply.44 The report also considered the state of the press market and, perhaps unsurprisingly for a document produced by a political party which was not always favourably characterised in press reporting, bemoaned a lack of accountability and bias in the press. More significantly, The People and the Media was also strongly critical of the existing system of self-regulation through the Press Council; whilst the Governments of Harold Wilson and James Callaghan did little to change the system of self-regulation for the press, the report marked an fundamental shift in political support for the Press Council, which had previously benefited from the tacit support of both the Labour and the Conservative Parties. The Labour Party was certainly not alone in its criticism of the Press Council. The Campaign for Press Freedom (which would later be re-constituted as the Campaign for Press and Broadcasting Freedom (CPF)) also advocated a complete overhaul of regulation of the press. Perhaps unsurprisingly for an organisation that had its roots in the wider Labour movement, the CPF pointed to what it regarded as unnecessary and destructive hostility directed at the trade unions by newspaper proprietors. The CPF also sought to lay the blame for the lack of real and meaningful reform at the door of the Press Council and the system of self-regulation itself. So concerned was the CPF at the perceived injustices of the existing system that it established its own Inquiry into the Press Council and matters relating to it. When it was finally published in 1983, the CPF report (known as the Robertson Report on the Press Council after its Chairman Geoffrey Robertson). The Robertson Report was unsurprisingly critical of the performance of the Press Council, but recommended nevertheless that the organisation be granted one final opportunity to reform itself and demonstrate its efficacy as a regulator. The conclusions of the report were unambiguous about what such reforms should entail. It recommended substantive changes to the Press Council and indeed to the existing law. Recommendations for reform of the Press Council included the further and oft repeated call for the development of a published code of conduct, auditing powers to ensure the maintenance of high standards, as well as powers, backed by contract, to direct prominent publication of corrections.45 The Robertson Report also recommended that the Press Council be given responsibility for the training and professional development of journalists. However,
5.3
5.4
5.5
43 44
Bingham, A, Drinking in the Last Chance Saloon: The British press and the crisis of self-regulation, 1989-95, p80 Labour Party, The People and the Media 45 OMalley, T and C Soley, Op Cit, p82
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this report also went much further in its recommendations than just proposals for the reform of the Press Council. It also recommended substantive legislative change. Proposals put forward by the CPF included legislation to establish a statutory press ombudsman, to provide a defence in law for investigative journalism, a Freedom of Information Act and changes to the laws on libel and contempt.46 5.6 Reference has already been made to examples of press misconduct in the 1980s, but it would be incorrect to suggest that the Press Council was always silent in these circumstances. Indeed, under the leadership of its final Chairman Sir Louis Blom-Cooper QC, the Press Council made significant efforts better to represent ordinary people and the victims of press mistreatment.47 However, there is little evidence to suggest that such rulings were respected or observed by the industry. Indeed, in material submitted by Sir Louis to the Inquiry, he has made clear his belief that the Press Council ultimately failed because its rulings were routinely, though not always, traduced and undermined in the pages of newspapers, thereby only serving to undermine public confidence in that body.48 The perceived inability of the Press Council to take credible and effective action in these cases of press mistreatment further damaged its reputation. Increasingly, it was regarded as ineffective both as a regulator of press conduct and as a means of redress for those who had suffered harm. Consequent opprobrium at the Press Council was not restricted to those who were the victims of press misconduct, but also extended to policy makers and to some of those involved in the industry. Already in 1980, the NUJ had withdrawn its membership from the Press Council on the grounds that it was not only incapable of internal reform but also was not able effectively to improve the behaviour of the press. Parliamentary concern at the behaviour of some parts of the press was such that in 1989 two Private Members Bills were put before Parliament. These were intended to address the intrusive practices conducted by some journalists and the lack of redress available to those who had been the victims of them. The first of the two Bills was laid before the House of Commons by a Conservative MP, John Browne. His Bill proposed the introduction of a privacy tort, envisaged as a means of helping to protect individuals from unwarranted intrusion by the press. The second such Bill was introduced by Tony Worthington, a Labour MP. This proposed the creation of a statutory Press Commission Appeal Tribunal with legally enforceable sanctions. Introducing his Bill to Parliament, Mr Worthington expressed the hope that it would improve access to redress for those who had been the victims of press mistreatment and speed up the process of dealing with complaints. These Private Members Bills were not the only attempts by Parliamentarians to tackle perceived press wrong-doing and the seeming inability of the Press Council to police press excesses effectively, although they were the last before the eventual appointment of Sir David Calcutt in 1989. For example:49
5.7
5.8
5.9
In June 1981 the Labour MP, Frank Allaun, presented a Bill to give members of the public the right to reply to allegations made against them in the press, or on radio or television. In December 1982, Allaun introduced a second right of reply Bill to the House of Commons.
the 1947-1949 Royal Commission explored but dismissed this option p6, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Third-Submission-by-Sir-Louis-BlomCooper-QC.pdf 48 pp6-8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/First-Submission-by-Sir-Louis-Blom-CooperQC.pdf 49 OMalley, T and C Soley, Op Cit, pp79-82
47
46
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In January 1982, the Conservative MP, Teddy Taylor, asked the Attorney General to review the remedies available to individuals, groups and organisations in the event of newspapers or the broadcasting media publicising inaccurate or misleading reports, and legal remedies available to newspapers and broadcasters in the event of industrial action looking to influence their content. In June 1984, Alfred Dubs MP (Labour) pressed unsuccessfully for a Bill to make newspapers declare payments to non-regular contributors. The Labour MP Austin Mitchell also introduced a Bill requiring a right of reply. In 1987 a number of yet further attempts were made to introduce legislation to curb the worst excesses of press misbehaviour. These included the movement of a debate in the House of Lords by the Labour Peer, Lord Longford, on Tabloid press: moral standards, the introduction of an Unfair Reporting and Right of Reply Bill by the Labour MP, Ann Clywd, and the introduction of a Right of Privacy Bill by the Conservative MP, Bill Cash.
D
5.10
The Government responded to this continual build-up of pressure for both the reform of the Press Council and the introduction of effective curbs on the worst excesses of press practice by appointing a Departmental Committee, chaired by Sir David Calcutt QC, to investigate the matter. Sir David was asked:50 ...to consider what measures (whether legislative or otherwise) are needed to give further protection to individual privacy from the activities of the press and improve recourse against the press for the individual citizen.
5.11
Sir David published his report on Privacy and Related Matters in June 1990. It is clear from the content of the report that the members of the Committee considered its remit to go beyond a limited discussion of privacy and encompass the existing system of press regulation.51 The final report was highly critical of the Press Council and set out in clear terms the failings of that organisation. These included: its ineffectiveness as an adjudicator; the lack of confidence in its independence from the newspaper industry; its tendency to reject large numbers of complaints; the lack of clarity in its selection and categorisation of complaints; the time taken to resolve contested cases; and the lack of effective sanctions in instances of proven breach.52 However, contrary to the expectations of a number of contemporary commentators, Sir David Calcutts first report did not advocate the introduction of statutory controls for the press. Rather, it recommended that the Press Council should be abolished and replaced with a new self-regulatory organisation; the Press Complaints Commission (PCC). The report argued that the press be given:53 ...one final chance to prove that voluntary self-regulation can be made to work. However, we do not consider that the Press Council, even if reformed as proposed in its internal review, should be kept as part of the system. We therefore recommend that the Press Council should be disbanded and replaced by a new body, specifically charged with adjudicating on complaints of press malpractice. This body must be seen to be authoritative, independent and impartial. It must also have jurisdiction over the press as a whole, must be adequately funded and must provide a means of seeking to prevent publication of intrusive material. We consider it particularly
5.12
50 51
http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA--D2.pdf Home Office (1990), Report into Privacy and Other Matters, passim, especially. p5. 52 ibid, pp63-64, paras 14.28-14.34 53 ibid, p65, para 14.38
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important to emphasise the break from the past. The new body should, therefore, be called the Press Complaints Commission. 5.13 The report recommended that this new body should deal with the numerous and substantial concerns that had been raised around the behaviour of some parts of the press. In contrast to the three Royal Commissions, the Calcutt Committee did not make a large number of recommendations for specific reforms. Rather, it set out a framework of measures that the Committee regarded as the necessary elements of an effective self-regulatory regime. The new PCC would have 18 months to demonstrate that non-statutory self-regulation can be made to work effectively by implementing appropriate reforms.54 In this report, Sir David recognised that such change would pose a significant challenge for the press but was adamant that if the challenge should not be met, namely a less than overwhelming rate of compliance with the Commissions adjudications...[or]...large-scale and deliberate flouting of the code of practice by the press or a total collapse in standards,55 then a statutory system for handling complaints should be introduced. 56 Sir Davids report made clear that the primary function of the PCC should be to provide effective redress for complaints made by members of the public against the press, including the ability to consider allegations of unfair treatment and unwarranted infringements of privacy. In addition, the Commission was to publish, monitor and implement a comprehensive code of practice for the guidance of both the press and the public, as well as to operate a 24 hour hotline for complainants. Sir David also made clear that the adjudication of complaints should be a clear and fast process and that, where a newspaper was demonstrated to be in breach of the code, an apology should be given to the complainant. Sir David also recommended that the PCC should be able to advise on the form and placing of replies or corrections. It is noteworthy that Sir Davids report made no mention of sanctions and instead placed emphasis on the preparedness of the press to adhere to the adjudications of the PCC. In addition, Sir Davids report made a small number of specific recommendations about the structure and function of the PCC, intended to address concerns expressed by the three Royal Commissions as to the independence of the organisation. The report recommended that the PCC should have an independent Chairman supported by a Commission made up of no more the twelve Commissioners. These would be appointed by a separate independent appointments commission which would select and appoint on the basis of merit alone. As had been the case after the second Royal Commission (but not other reviews less favourable to the press), the response of the industry was swift. The Press Council was duly disbanded, and in the spring of 1990 the five publishing associations in the UK (the Newspaper Publishers Association, the Newspaper Society, the Periodical Publishers Association, Scottish Newspapers Publishers Association and the Scottish Daily Newspaper Society) worked together to establish the Press Standards Board of Finance (PressBoF) for the specific purpose of funding the PCC. The PCC was itself incorporated on 1 January 1991 and, in a nod to the history of the self-regulation of the press as well as in recognition of his very real qualifications for the post, Lord McGregor was appointed as its first Chairman.57 However, the full Commission was
5.14
5.15
5.16
5.17
54 55
Bingham, A, Op cit, p84 Home Office (1990), Op cit, p74 56 Home Office, Op cit, p74 57 Bingham, A, Op cit, p84
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appointed directly by Lord McGregor, in direct contravention of the Calcutt Reports specific recommendation that there should be a fully independent appointments process.58
6. The second report of Sir David Calcutt QC

6.1 Although the PCC had been established speedily, standards of press behaviour remained a concern to politicians and members of the public alike because no immediate improvement in press behaviour was discerned. Indeed it has been suggested that despite the speed and promise of its establishment, the PCC quickly followed the modus operandi demonstrated by the Press Council in its responses to the Royal Commissions and Sir Kenneth Youngers report on privacy in 1972.59 Many of the recommendations made by Sir David Calcutt were either quietly shelved or ignored by the PCC. Others were modified or implemented in a manner that benefitted the industry. For instance, the Code of Conduct was promulgated by the industry rather than the PCC itself and, as indicated above, the appointments process was not independent. The Commission also struggled to impose its authority on the industry; it has been argued that, in failing to commit to dealing with complaints from third parties, or indeed establish any investigatory arm, the regulatory function and capacity of the newly formed Commission was gravely weakened from the outset.60 In 1992 the Labour MP, Clive Soley, introduced a Private Members Bill on Freedom and Responsibility of the Press. The Bill proposed the creation of a statutory Independent Press Authority, with powers to enforce its rulings through the courts. Clive (now Lord) Soley has suggested that his Private Members Bill was intended to complement thinking around Sir Davids forthcoming follow-up review.61 Following the publication in The Sun of the detail of intimate conversations between the Princess of Wales and James Gilbey, and the Prince of Wales and the Duchess of Cornwall (as she now is), the Secretary of State for National Heritage, David Mellor QC MP, gave a speech in July 1992 in which he reflected widespread public anger at the actions of The Sun. He described the press as drinking in the last chance saloon. Mr Mellor later complained that his stance on the need for reform of the press led to him being driven from office by a series of salacious stories about his private life although he acknowledges that the timing was coincidental.62 Perhaps with greater ambiguity, he has also suggested that some of that coverage was legitimate and a matter of public interest. In July 1992, Sir David Calcutt was asked by the Secretary of State for National Heritage to conduct a second review, the report from which was published in January 1993. This was just before Mr Mellor had left office in the circumstances explained above. David Mellors explanation to the Inquiry was that 18 months had elapsed since the press had been described by him as drinking in the last chance saloon in December 1989, and the matter needed to be re-assessed.63 There, Sir David analysed the record of self-regulation by the press since the formation of the PCC in January 1991. Sir Davids assessment was forthright. He contended
D
6.2
6.3
6.4
Shannon, R, A Press Free and Responsible, p74. pp24-24, and p28, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-MediaStandards-Trust.pdf 60 Bingham, A, Op cit, pp84-85 61 pp2-6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Lord-Soley-ofHammersmith.pdf 62 pp30-36, lines 1-21, David Mellor QC MP, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/ Transcript-of-Afternoon-Hearing-26-June-2012.pdf 63 P29, lines 5-17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-Afternoon-Hearing26-June-2012.pdf
59
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that self-regulation by the PCC had failed and called for the introduction of a statutory Press Complaints Tribunal. He summarised his conclusions as follows:64 The Press Complaints Commission is not, in my view, an effective regulator of the press. It has not been set up in a way, and is not operating a code of practice, which enables it to command not only press but also public confidence. It does not, in my view, hold the balance fairly between the press and the individual. It is not the truly independent body which it should be. As constituted it is, in essence, a body set up by the industry, financed by the industry, dominated by the industry, and operating a code of practice devised by the industry and which is over-favourable to the industry. 6.5 Sir Davids second report made clear his view that the press was neither capable nor willing to initiate reforms that might constitute a credible alternative to statutory regulation. He therefore recommended that the proposals set out in his first report for a statutory Press Complaints Tribunal be enacted forthwith:65 It has been argued that two years is too short a time in which to judge the Press Complaints Commission. But the way forward was clearly spelt out in the Privacy Committees Report. In particular, the Committee stressed the need for the Commission to be seen as an independent body which would command the confidence of the public. Both the Committee, and subsequently the Government, gave a clear indication that this was the last chance for the industry to put its own house in order. It has to be assumed that the industry, in setting up the present Press Complaints Commission, has gone as far as it was prepared to go. But it has not gone far enough. 6.6 If the conclusions reached in Sir David Calcutts second report were damning of the PCC, the recommendations for change were equally alarming for the supporters of self-regulation. The final report contained a detailed set of proposals for the wide-ranging powers that should be granted to that body. These included powers to establish and maintain a code of practice, prevent the publication of material in breach of the code, handle complaints in relation to alleged breaches of the code (including from third parties), investigate and adjudicate on breaches without a complaint, require the publication of adjudications, apologies and corrections, and, where appropriate, to hold full hearings.66 The PCC and the industry rejected the analysis of Sir David. They argued that he had failed to pay sufficient attention to the relevant facts. The PCC said that the criticism of it was excessive.67 Indeed, Sir Davids proposals were seen as a step too far by even the most adamantine critics of the press.68 However, the PCC did accept that some reform was required and under the leadership of its second Chairman, Lord Wakeham, changes were made to aspects of policy and procedure, largely to improve and expedite the complaints handling procedures.69 Specifically, amendments were made to the Editors Code of Practice. These included requirements to restrict the use of eavesdropping and phone bugging techniques.70 Other changes included new guidance on how journalists should identify themselves when seeking
6.7
6.8
David Calcutt QC, Review of Press Self-regulation, pxi, 5 ibid, pxi 7 66 ibid, pp45-50 67 p36, para 56, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-StephenAbell.pdf 68 Shannon, R, Op cit, p119 69 pp4-8, lines 18-21, Lord Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-22-May-20121.pdf, pp23-24, lines 25-12, Lord Wakeham, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/05/Transcript-of-Morning-Hearing-15-May-2012.pdf 70 http://www.pcc.org.uk/
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stories. In addition, the board of the PCC was reconstituted to include a majority of lay members (nine, including the Chair, alongside seven serving editors). Similar changes were also made to the independent Appointments Committee. 6.9 In further changes, the industry agreed that the PCC should be granted powers to ratify, if so advised, the changes to the Editors Code of Practice recommended by the Editors Code of Practice Committee. Funding to the Commission was also increased substantially. This enabled the development and introduction of a hotline for members of the public specifically to deal with incidents of harassment by members of the press, as had been recommended in Sir Davids first report. The weakness of the press response to the second Calcutt report, as part of an overall narrative, was demonstrated by an example provided by Lord Brooke, the Secretary of State for National Heritage between July 1992 and September 1994. He recalled that in 1993 the Sunday Mirror published photographs of the Princess of Wales exercising in a private gym.71 Lord McGregor, then Chairman of the PCC, issued a public rebuke of the Sunday Mirror; but instead of showing contrition the papers response was to leave the system of self-regulation through the PCC.72 Lord Brooke suggested that this incident was instructive at many levels, demonstrating not only the weaknesses existing within the system of regulation, but also the refusal of the press to begin to countenance change until compelled to do so as a consequence of public indignation at its behaviour.73 Lord Brooke described the matter thus:74 In the same way, another instance which I would quote from my own time, the episode of the Mirror in the first week of November 1993, when the photographs were taken of Princess Diana working out in a gymnasium, had a very powerful effect on the behaviour of the press immediately, because they had been resisting anything that in any way related to either to Calcutt or to ourselves and indeed others, and then suddenly changed their minds when they realised that an episode as absurd as the Mirror episode, where the chairman of the Press Complaints Commission rebuked the Mirror the Sunday Mirror, in fact rebuked the Sunday Mirror for their behaviour, first led the Sunday Mirror to walk out of the Press Complaints Commission, and then to come back, and it was clear that some of the things that were being said to them about the degree of control that they had were actually being proved by reality. 6.11 The Government did not immediately respond to Sir Davids second report. Rather, it waited until 1995, when the Secretary of State for National Heritage, Virginia Bottomley MP, rejected his recommendation for statutory regulation and instead supported the package of reforms that had been proposed by Lord Wakeham. The Inquiry has heard from witnesses who have sought to explain the nature of the Governments response. Sir John Major has told the Inquiry that, although a matter of concern to his Government, the conduct of the press could not be regarded as a priority, nor, he noted, was there any agreement within the Government on the most desirable way forward.75 He recounted that his Government had to contend with other more pressing and immediate demands, including the UKs exit from the European Exchange Rate Mechanism on Wednesday 16 September 1992.76 Sir John also suggested that the strength of Parliamentary opinion in relation to freedom of the press, particularly in the
6.10
p26, lines 5-8, Lord Brooke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-24-May-2012.pdf 72 p26, lines 6-13, ibid 73 p26, lines 17-18, ibid 74 p26, lines 5-21, ibid 75 pp68-69, lines 13-5, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-12-June-2012.pdf 76 pp86-88, lines 12-25, ibid
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context of the Governments diminishing Parliamentary majority, ruled out any more decisive action in this area.77 6.12 Sir Johns recollection of events has found a complementary echo in the evidence of Lord Brooke. He told the Inquiry that there was little appetite in Cabinet for the statutory solution proposed by Sir David in his second report.78 Lord Brooke also explained that a number of legislative proposals, through which press intrusion might be addressed,79 had been put forward by different Government departments. These included both a privacy tort and proposals to make some forms of intrusion a criminal offence. Lord Brooke noted that although there was some agreement in Cabinet on bringing forward legislation to introduce criminal offences, there was less accord in relation to the introduction of a tort of privacy.80 Stephen Dorrell, the Secretary of State for National Heritage from July 1994 to July 1995, was responsible for the formulation but not the publication of the response to the second Calcutt report. He has helped complete this picture. He said that such were the disagreements in Cabinet around both the likelihood of the Government enacting legislation and the desirability of regulating the press, that the Government had argued itself to a standstill.81 He also noted that the reforms to the PCC proposed and then implemented by Lord Wakeham increasingly appeared to meet the needs set out by Sir David Calcutt without the requirement for timeconsuming and controversial legislation.82 Nonetheless, many have suggested that Lord Wakehams appointment and tenure was very much in the interest of the press. Lord Smith summarised industry thinking behind his appointment in this way:83 I think the newspaper industry did not want statutory control and that they accepted they needed someone to be the chairman with a bit of clout, who could stop statutory control by getting the standards up to an acceptable level, and this was my view of what I thought they probably wanted. Sir John Major explained why Lord Wakehams appointment might well have been valued by the industry itself:84 I mean, those who were at all queasy about it would then say, Look, here is one of our own, a very respected former Cabinet Minister who is actually chairing the PCC. Therefore, why dont we wait and see how well he gets on? Why rush ahead with legislation? So his appointment did have a material effect upon views in the Parliamentary party.
6.13
6.14
p73, lines 1-12, ibid pp4-8, paras xiv-xxvi, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-LordBrooke.pdf 79 p15, lines 4-9, Lord Brooke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-24-May-2012.pdf 80 pp4-8, paras xiv-xxvi, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-LordBrooke.pdf 81 p22, lines 12-16, Stephen Dorrell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-23-May-2012.pdf 82 pp19-20, line 19-5, ibid 83 p19, lines 19-25, Lord Wakeham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-15-May-2012.pdf 84 p76, lines 15-21, Sir John Major http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-12-June-2012.pdf
78
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6.15
However, Lord Wakeham was not appointed simply for his political skills. In perhaps the most important respect, he shared the values which were most cherished to the industry which the PCC was regulating. Lord Wakeham explained that he was a strong supporter of both press freedom and self-regulation:85 I dont think you could be a chairman of a body that was running a system of selfregulation unless you believed in self-regulation. I think that would be a bit difficult. And I cant imagine you being a very good chairman of a Press Council if you didnt believe in press freedom. I would have thought they were pretty self-evidently things that were required for the job.
6.16
D
6.17
Whilst it is clear that the PCC did introduce reform during the chairmanship of Lord Wakeham, including the appointment of a Privacy Commissioner tasked with the oversight of each and every complaint to do with privacy, these changes did not amount to the creation of the organisation envisaged by Sir David Calcutt in his first report, but rather a PCC that met the minimum requirements of a Government increasingly disinclined to effect major reforms of the system of press regulation and fearful of the political ramifications of any such change. The PCC won support in some quarters, including in Government, for the breadth of its proposed reforms and their speed of implementation. But the frank evidence of Sir John Major is pertinent on this issue:86 In retrospect, yes. I mean, there were some things done. It has to be said on behalf of the PCC that it did make some changes. They were relatively trivial changes, but they were changes. And they also, if I remember correctly, appointed a privacy commissioner from among their numbers, a Professor Pinker, at the time. So there were things that they had done, and the hope that Stephen Dorrell is expressing there is that John Wakeham would be able to persuade the media, the press, to go a good deal further than they already had done. It was, as you say, aspirational.
7. The death of Diana, princess of Wales

7.1 The death of Diana, Princess of Wales in 1997 was a wake-up call for the press. Although it did not generate a specific inquiry into press ethics, it did reignite a public demand for improvements in press behaviour. Considered as a whole, the reforms introduced in response to the public outcry were the most comprehensive ever introduced by the PCC. It should not be doubted that the reforms, which concerned amendments to clauses 4 and 6 of the Editors Code of Practice, did have an impact on the behaviour and actions of journalists, press photographers and paparazzi. Nonetheless, it is apparent from the evidence that these changes were, as so many before, hard won from the industry and not freely given. Lord Smith provided a detailed description of the protracted negotiations between his Department and the industry through the offices of the PCC, in which despite the tragic background, the quite extraordinary levels of public
7.2
7.3
p15, lines 17-22, Lord Wakeham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-15-May-2012.pdf 86 p79, lines 2-13, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-12-June-2012.pdf
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concern, and the willingness of the PCC to act in the first instance as regulator and then mediator, the final outcome was relatively modest.87 7.4 Lord Smith told the Inquiry that it was Government policy to seek to strengthen the system of self regulation and, in particular, to bring about changes in relation to sanctions, the definition of the public interest, and the issue of PCC pro-activity.88 Lord Smith made clear that he thought that tackling these three issues would effect far-reaching and lasting change in the attitudes of the industry such that the press should not slip back into old ways when the events of the past week have receded from recent memory.89 However, it is quite clear from the evidence both of Lord Smith and Lord Wakeham that the industry was unwilling to make concession in these respects. Rather the changes that were finally adopted were confined to those very few areas outlined above most closely associated with the direct circumstances surrounding the death of Princess Diana. Lord Smith testified that the industry demonstrated a disinclination to agree to any changes and did so only under duress after considerable public and political pressure was brought to bear. In his evidence Lord Smith recalled a meeting with Lord Wakeham in which the latter said:90 If the government can keep up some external pressure on me, pushing me all the time to go a bit further, then that will be very helpful, he said, in enabling me to make better progress with the editors and proprietors. 7.6 Even in the evidence of Lord Wakeham it is clear that his ability to broker a solution was severely circumscribed by the unwillingness of editors and proprietors to concede ground:91 bear in mind the changes in the code were not a matter for me; they were a matter for the editors under the arrangements, and I therefore had to move carefully to make sure the editors went along with what I wanted. 7.7 Lord Smith recognised that one of the lessons from history was that the window of opportunity for reform was short. He said that over a period of months the attitude of the PCC shifted from operating as a regulator to championing the interests of the press. This was a metamorphosis which it may be argued was as inevitable and it was entirely understandable, as other real world concerns impacted, in particular in relation to the possible ramifications for the press of the incorporation of the European Convention on Human Rights into UK domestic law.92 Further, the reforms to the Editors Code of Practice that were introduced with effect from 1 January 1998 were neither welcomed by the press nor much observed in the longer term. Lord Smith described these as:93 ... carried through, sometimes, I suspect, with gritted teeth amongst the editors and proprietors, because there was a public wind at the back of change. But that moment did not last for terribly long, and the equilibrium returned more or less to normal, which makes it very difficult for government to take strident steps to restrain press activity.
p35, lines 8-11, Lord Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-22-May-20121.pdf 88 p28, lines 16-24, ibid. 89 p24, lines 6-14, ibid 90 p19, lines 11-13, ibid 91 p32, lines 38, ibid 92 p21, lines 9-16, Lord Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-22-May-20121.pdf 93 p31, lines 11-18, ibid
87
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7.8
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7.9
Lord Smith said that, following the death of Princess Diana, Lord Wakeham, and by extension the PCC, were stepping up to the plate and being a regulator.94 But he, along with other witnesses to the Inquiry, stressed that the changes in press behaviour were of short duration:95 I think its probably fair to say that for the two or three years following the Wakeham changes immediately after the death of Diana, the conduct of the press did improve. Certainly in terms of the specifics of the changes, their approach to the coverage of the princes, handling of children and minors, some of the intrusive taking of photographs, there was a palpable change of behaviour. But after that two to threeyear period, I think it began to slip, and as we know from all the evidence that youve been receiving, it slipped grievously in quite a number of ways.
7.10
Evidently, the same dynamics that played in the aftermath of the reporting of the Royal Commissions and the reports of Sir David Calcutt were also apparent in the industrys response at this point. The industry moved quickly to make a number of high profile but nevertheless limited changes which were in any event only begrudgingly accepted. In this case, they were ably guided by the dextrous political hand of Lord Wakeham who moved swiftly and adroitly to secure political backing for an industry-led response to these events.96 In 2003 Sir Christopher Meyer was appointed Chairman of the PCC, and the evolution of that organisation under his leadership is addressed elsewhere in this Report, in particular in Part J. The organisation which he inherited was hidebound by the structural and cultural constraints which this chapter has served to highlight. It would require a herculean task to break free from them.
7.11
8. Conclusions
8.1 At this juncture, it is opportune that I seek to draw out some brief lessons from the history of press self-regulation in the UK since the foundation of the General Council for the Press in 1953, as well as the public policy response to concerns at the conduct of some sections of the press. It must be made clear that the story is not all bad, in the sense that there have been a number of reforms in press regulation since the Second World War. That said, whilst recognising some of the good work that has been done in response to criticism, to changing attitudes and the clear recommendations of the reports, it is evident that many of the lessons of the post-war period have been ignored. This chapter of the Report attempts to provide only a cursory glance at the recent history of the British press, but it is patent that many of the concerns and practices that led to the establishment of three Royal Commissions, a Committee on privacy and the two reviews led by Sir David Calcutt, are the same as those which have led to the establishment of this Inquiry. This has been a history of strongly recurring themes. An equally strong recurrence has been concern about the inability of self-regulation to address the underlying problem sufficiently, an inability which has been consistently pointed out by all of those who have examined the problem in depth. The history demonstrates a distinct and enduring resistance to change from within the press. This replication of pattern,
8.2
8.3
p20, lines 6-9, Lord Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-AfternoonHearing-22-May-20121.pdf 95 pp. 37-38, lines 16-1, Lord Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-22-May-20121.pdf 96 pp29-41, lines 235, Lord Wakeham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-15-May-2012.pdf
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of the wheels of history moving in concentric circles, has been demonstrated through the press response to the recommendations made and repeated over the years, the regulators97 response to those recommendations and, it must be said, the response of successive Governments to the clear advice they have been receiving. 8.4 My conclusion on the cyclical nature of press self-regulation is not a novel one. Indeed, it was shared by many of the witnesses to the Inquiry. Lord Brooke suggested that the history of press self-regulation has been one of a distinct reluctance on the part of the industry to implement meaningful change. He noted that such change that has been effected has only been implemented in the face of the very real threat of statutory intervention:98 But in the period since 1945, I observe that quite extraneous events, like a Private Members Bill, actually have had the effect of moving the story on quite a lot. In the case of the 1949 Royal Commission under Sir William Ross, there was a proposal that the press should have a general body of their own, and they showed no sign at all of doing anything about that until a backbench MP called Mr Simmons in 1952/53 brought in a Private Members Bill, whereupon effectively almost instantly the press came around to the original recommendation in the Royal Commission. He continued:99 In the same way, in 1989 I noticed the text of Mr Dorrells account of how the Calcutt 1 was set up, but its actual genesis was the report stage of Mr Worthingtons bill entitled Right of Reply in 1989, and the government minister responding at the dispatch box on that bill basically foreshadowed Calcutt 1 in his response. So these things happen as a result of different, frequently unrelated episodes. 8.5 Lord Brooke perceived a causal link between the credible threat by policy makers of the introduction of statutory regulation for the press, and the introduction by the industry of limited measures to improve the existing system of self-regulation for the press, a system that has worked overall to the distinct advantage of the industry:100 The other Royal Commissions and Lord Youngers Commission werent quite so fruitful, but then there wasnt a Private Member around to help. 8.6 The same reasoning has been pursued more forthrightly in submissions to the Inquiry by Professor Brian Cathcart of Kingston University. He told the Inquiry that in his view the history of press reform is one of failure to introduce measures recommended in terms to improve public trust in both the press and the system of selfregulation.101 He said that the attitude of the press to change in this area has been one of foot-dragging and obfuscation, with progress only occurring under duress:102 I think you go back to the first Royal Commission, 1946 to 1949, I think, which reports, recommends the setting-up of a Press Council and it takes three and a half years
the PCC advances the argument that it is not and never has been a regulator in the proper sense of the term, nor a fortiori were its predecessors; what it has done and how it has portrayed itself is analysed in Part J Chapter 2, but the term is used for present purposes 98 p25, lines 7-17, ibid 99 p25, lines 18-24, ibid 100 pp25-26, lines 25-4, ibid 101 pp100-101, lines 13-15, Professor Brian Cathcart, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Transcript-of-Morning-Hearing-8-December-20111.pdf 102 p100, lines 14-23, ibid
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before the press and an awful lot of leaning on and threats of legislation before the press will set something up. That, if you look through the history, and this is another thing that Hacked Off is doing, that sort of conduct is repeated and repeated. 8.7 Similar observations were made by the Media Standards Trust, which submitted to the Inquiry a detailed analysis of the cycle of industry-led reform.103 Dr Martin Moore argued that in the face of considerable public concerns prompting the Royal Commission and other investigations into the behaviour of the press, the industry has been unmoved until threatened with the Damoclean sword of some form of statutory regulation. 104 Further, Dr Moore has said the paucity of reforms implemented by the industry has led to a cycle of subsequent commissions, often within a decade examining to all intents and purposes the same conduct that had originally generated those public concerns.105 The MediaWise Trust agreed, recalling with some concern that recommendations made by the Ross Commission in 1949, repeated in the report of the Shawcross Commission of 1962 and again by Lord McGregor in 1974, have yet to be implemented, particularly with regard to the prominence of apologies and corrections. However, in a somewhat different vein from other commentators, the Mediawise Trust suggested that it is incorrect to describe the history as cyclical, as this tends to obscure the fact that the calls for reform became increasingly strident and more forthright with time, and the refusal of the press to implement the changes at the heart of those reports more obdurate. The historical lessons are clear enough, but the challenge for today is whether any of them will be taken on board. Those who complain about the conduct of the press106 are entitled to ask How many chances must the press be given before something is done about it? The problem is to decide whether that complaint is justified and, if it is, what that something is.
8.8
8.9
103
pp12-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Standards-Trust. pdf 104 p5, para 32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Dr-MartinMoore.pdf 105 ibid 106 although this question relates to the press generally, throughout this Report reference is usually made to a section of the press. As has been and will be emphasised, this is to underline the good work of most journalists and the enormous value that the press can bring to our democratic society. The fact that most of the press do not behave in a way that requires regulation does not, however, negate the need for such regulation to deal with those whose behaviour does not meet the high standards of the majority
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Chapter 2 Self-regulation of the preSS

1. introduction
1.1 This Chapter of the Report will look at the Press Complaints Commission (PCC) as the system of self-regulation that has existed for the press since 1990. Having examined the establishment of the PCC in the context of the publication of the first report into the press by Sir David Calcutt QC in June of that year, it will then look, in turn, at the powers, operation and standards of the PCC before considering both the role of Press Standards Board of Finance, which was established with the express purpose of providing sufficient funding for the PCC, and the Code Committee which is responsible for the promulgation, implementation and amendment of the Editors Code of Practice, the cornerstone of self-regulation through the PCC. This Chapter will also look at the operation of the Editors Code of Practice, together with the services that it offers to the public; this includes the anti-harassment hotline and its role as a complaints handling body. The purpose of this Part of the Report is to review the position of the PCC very much from the perspective of its own witnesses, rather than from that of those who are more critical of what it has done since January 1991. Some criticisms are reflected but are mentioned only. A more critical perspective requires a detailed analysis of the response of the PCC to allegations of systemic press misconduct (such as that which arose in relation to data protection following Operation Motorman and then to phone hacking following Operation Caryatid). That exercise has therefore been deferred until these incidents (covering a number of years) have been fully ventilated: the Report therefore returns to the PCC below.1
1.2
1.3
2. the establishment of the pCC

2.1 2.2 As has already been explained above,2 the PCC was set up following the first report into privacy and the press by Sir David Calcutt QC, published in 1990. The broad scope of Sir Davids Departmental Committee had reflected a growing concern in Parliament, as well as among the public more widely, about the behaviour of some parts of the press and the perceived failure of the Press Council, then the self-regulatory body for the press, to take effective action to deal with such behaviour. Sir Davids first report was published in June 1990. At that stage, he did not advocate the introduction of statutory controls. Rather, he recommended that the existing, and by this point largely discredited, Press Council should be abolished and replaced with a new selfregulatory organisation, the Press Complaints Commission, which should deal with the many and substantive concerns that had been raised around the behaviour of some parts of the press. The new PCC would have 18 months to demonstrate that non-statutory self-regulation can be made to work effectively.
2.3
1 2
Part J, Chapter 3 Part D, Chapter 1
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2.4
As a result, in the spring of 1990, the five publishing associations in the UK (the Newspaper Publishers Association, the Newspaper Society, the Periodical Publishers Association, Scottish Newspaper Publishers Association and the Scottish Daily Newspaper Society) worked together to establish the Press Standards Board of Finance (PressBoF) for the specific purpose of funding the PCC. The PCC was itself incorporated on 1 January 1991. The primary function of the newly incorporated PCC was to provide an effective means of redress for complaints made by members of the public against the press, including the ability to consider accusations of unfair treatment and unwarranted infringements of privacy. In addition, the Commission was to publish, monitor and implement a comprehensive code of practice for the guidance of both the press and the public, as well as to operate a 24-hour hotline for complainants. Sir David made clear that the adjudication of complaints should be a clear and fast process and that, where a newspaper was demonstrated to be in breach of the code, an apology should be given to the complainant. Sir David also recommended that the PCC should be able to advise on the form and placing of replies or corrections. I now turn to the Editors Code of Practice. This set out standards of behaviour that journalists and editors should seek to uphold and also set down the rules by which the newspaper industry should adhere. The Editors Code of Practice was formulated by a Code Committee, formally a sub-committee of PressBoF which was made up of serving editors of both newspapers and magazines. The Code is explored in more detail below. Further, in a determined break with the past, the newly formed PCC also took a more proactive approach to dealing with some of the more challenging issues facing the press, producing a range of guidance which is valued by editors, particularly in the regional press. However, although the industry had moved quickly to set up the PCC, standards of press behaviour remained a concern to both politicians and members of the public who did not discern any immediate improvement in that behaviour. Reflecting that widespread concern, the then Home Office Minister, David Mellor QC MP, made clear his view in a television interview in 1989, describing the press as drinking in the last chance saloon. In July 1992, Sir David Calcutt was asked by Mr Mellor to prepare a second report analysing the record of self-regulation by the press since the formation of the PCC in January 1991. In that report, which was published in January 1993, Sir David argued that self-regulation by the PCC had failed and called for the introduction of a statutory Press Complaints Tribunal. Reiterating the history set out above, the PCC and the industry more widely both rejected the analysis of Sir David. However, the PCC did accept that some reform was required and changes were made to some of its policies and procedures in the light of the first 18 months of operational experience. Further changes were made in 1995, after the Government had published its eventual response to Sir Davids second report and the PCC has continued to keep its practices under review since then.
2.5
D
2.6
2.7
2.8
Purpose of the PCC

2.9 The primary purpose of the PCC is set out in its Articles of Association.3 Article 53.1 of the Articles states that:4 The primary function of the Commission shall be to consider, and adjudicate, conciliate and resolve or settle by reference to the Press Code of Practice promulgated
3 4
http://www.pcc.org.uk/assets/111/PCC_Articles_of_Association.pdf p12, ibid
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by PressBoF for the time being in force complaints from the public of unjust or unfair treatment by newspapers, periodicals or magazines and unwarranted infringements of privacy through material published in newspapers, periodicals or magazines (in each case excluding advertising by third parties) or in connection with the obtaining of such material but shall not consider complaints of any other nature. 2.10 This is again set out in plain English on the PCC website in the form of a mission statement.5 In that statement, it is said that the PCC is:6 an independent body which administers the system of self-regulation for the press. It does so primarily by dealing with complaints, framed within the terms of the Editors Code of Practice, about the editorial content of newspapers and magazines and the conduct of journalists. 2.11 It is clear from this that the PCC understood itself to be a de-facto regulator and presented itself publicly as such. This difference between this perception and the reality is explored below.7
3. Current powers, operations and standards

3.1 Since its foundation in January 1990, there has been five Chairs of the PCC. These were Lord MacGregor (19911994); Lord Wakeham (19952002); Sir Christopher Meyer (2003-2009); Baroness Buscombe (2009-2011); and Lord Hunt (since 17 October 2011). Professor Robert Pinker served as Acting Chair from July to October 2011.
Membership of the PCC

3.2 Membership of the PCC is voluntary and as such there is no system of sanctions or incentives in place to induce those newspapers and magazines who do not subscribe to the PCC to do so. Currently, the majority of national newspapers do subscribe to the PCC but there are important and significant omissions to that membership. In particular, the Northern and Shell group withdrew its membership in January 2011 and, as a consequence, the Star and Express titles have not been subject to any system of self-regulation since then (although Dawn Neesom, the editor of The Star, explained in her evidence that staff at both titles continued to abide by the terms of the Editors Code of Practice during this period). In addition to the majority of national newspapers, all regional titles and most magazine titles are currently members of the PCC.8 Subscription to the PCC is organised through the five print trade associations: the Newspaper Publishers Association, the Newspaper Society, the Periodical Publishers Association and the Scottish Daily Newspaper Society.
3.3
The structure of the PCC

3.4 The framework for the membership of the PCC and appointments to the PCC are set out in Articles 5-9 of the Articles of Association. There are a number of classes of member of the
p28, para 27, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Stephen-Abell.pdf http://www.pcc.org.uk/index.html 7 Part J Chapter 3 8 A full list of those publications subscribing to the press self-regulatory system may be found at http://www. levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA-S1.pdf
6
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PCC, as set out at Article 6 which also established the appointments process for each class. The three classes of members of the Commission are as follows (see Article 6.1): (a) (b) (c) the Chairman;9 public members; and press (or editorial) members.
Article 5 provides that there shall at any time be between nine and 17 members of the PCC. It also makes clear that at all times a majority of the members shall be Public Members rather than Press Members. Commissioners also serve as Directors of the PCC. There are at present 17 members of the PCC.10
D
3.5
Appointment of members The Chair of the PCC is appointed by PressBoF. It is of critical importance to note that, under the Articles of Association, PressBoF has absolute discretion to appoint the Chair on whatever terms it sees fit, and to vary or revoke that appointment. The most significant of the Articles of Association in this regard is Article 6.2, which provides that the Chairman shall not be engaged in or connected with or interested in the business of publishing newspapers, periodicals or magazines (other than through his appointment as Chairman). It is clear that candidates for the post of PCC Chair are expected to have knowledge and expertise of the working of the press and also of regulation. For example, Sir Christopher Meyer was Press Secretary to Sir John Major from 1994 to 1997; during his tenure as Prime Minister and, before his appointment, Lord Hunt had prepared a report on the future regulation of solicitors for the Law Society of England; prior to that, he had led the first review of the Financial Ombusdman Service. In addition, the Inquiry has been told that a belief in the superiority of self-regulation above other forms of regulation is a requirement for all candidates applying for the post. The evidence submitted by Lord Hunt included a copy of the advertisement for the post of PCC Chair as it was advertised in 2011. The advertisement stated that candidates for the post of PCC Chair:11 must be committed to the principles of self-regulation and freedom for the press. 3.8 The Inquiry was told candidates are also tested on this particular issue during the application process. For example, Lord Grade was asked at interview whether or not he supported statutory regulation, and Sir Christopher Meyer suggested that he regarded his tenure as PCC Chair as a success as he warded off the threat of statutory regulation. The Public Members and Press Members of the PCC are appointed differently. According to the Articles of Association, Public Members and Press Members are appointed by the Appointments Commission (Article 6.3). This Commission also has absolute discretion to appoint Public and Press Members upon whatever terms and for whatever period it sees fit. Similarly, it has the power to revoke or to vary any appointment of a Public or Press member. Article 6.3 makes clear that no Public Member shall be engaged in, or otherwise connected
3.6
3.7
3.9
Described as the Chair throughout the Report p50, paras 107-108, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-ofStephen-Abell.pdf. See pp21-23, para 25, ibid for a complete list of Commissioners/Directors of the PCC 11 p59, lines 1-2, Lord Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-AfternoonHearing-31-January-2012.pdf
10
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with or interested, in the business of publishing newspapers, periodicals or magazines (other than through his appointment as a Commissioner). 3.10 In practice, however, the Appointments Commission has been abolished and responsibility for the appointment of Public Members has been taken on by the Nominations Committee. This reform was introduced following the Governance Review in 2009 but, at this point, has not yet been formalised as an amendment to the Articles of Association. The Nominations Committee is chaired by the PCC Chair and has two other members drawn from Public Members of the Commission. At present, Ian Nichol and Professor Ian Walden sit on the Nominations Committee along with the Chair. Vacancies for Public Members are advertised publicly. The Nominations Committee considers applications and then makes nominations for the whole of the Commission to vote upon. As part of the process of considering applications, the Nominations Committee consults with the Chair of PressBoF. The Nominations Committee is also responsible for appointing the Independent Reviewer and the Review Committee. Press (or Editorial) Member appointments are made by the trade bodies through PressBoF.12
3.11
3.12
Functions of the PCC

3.13 The then Director of the PCC, Stephen Abell, provided detailed evidence to the Inquiry about the function and operation of the PCC. He briefly summarised the purpose of the Commission as: (a) (b) to investigate complaints, primarily from concerned individuals, that relate to the terms of the Editors Code of Practice; to deal with pre-publication concerns of individuals and advocate on their behalf with news organisations, with a view to preventing the publication of non-compliant material; and to prevent harassment by journalists.
(c) 3.14
In addition to this, the PCC also seeks pro-actively to contact individuals who might need the assistance of the Commission in their dealings with the press; provides guidance to the industry on a range of ethical issues (such as reporting on mental health issues); and works with titles to help raise standards across the industry. Investigating complaints that relate to the terms of the Editors Code of Practice
3.15
The complaints process assessment One of the core functions of the PCC is the investigation of complaints relating to the terms of the Editors Code of Practice. Investigations are handled by the complaints officers in the PCC secretariat.13 Each new complaint is assessed by a complaints officer or the Head of Complaints; at this stage, any complaint which falls outside the remit of the PCC or the Code of Practice is sifted out.14 It may be the case that the PCC has to ask for further details before a decision can be taken about whether or not the complaint falls within its competence.15
12
p54, paras 121-124, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-ofStephen-Abell.pdf 13 p55, para 125, ibid 14 p85, para 188, ibid 15 p85, para 191, ibid. Commonly when asked for further information complainants choose not to pursue their complaints
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3.16
When the PCC does not investigate The PCC does not investigate cases where no breach of the Code is raised in the complaint. Examples of this might include where the complaint was about a broadcaster, or where the complaint raised questions of taste and decency.16 The PCC might also decide that, if sufficient remedial action had been taken by a newspaper, no further action was necessary. When a complaint does not fall within the remit of the PCC, it will try to redirect the complainant to the relevant alternative regulator.17 Where the complaint does fall within the competence of the PCC, but there is no prima facie case to answer, the matter may be put before the Commission directly without investigation.18 Investigation If a complaint does raise a prima facie breach of the PCC Code, it is assigned for investigation to a Complaints Officer. Complaints Officers at the PCC play a dual role of both investigator and conciliator.19 Where a complaint is accepted for investigation, the PCC first writes to the editor of the relevant publication. That editor is sent a copy of the complaint and is asked to respond within seven days. There then follows three way correspondence, with the PCC Complaints Officer acting as the conduit between the complainant (or his/her representative) and the publication complained about. The PCC has a protocol for disclosure.20 This document does not place either party under any obligation to provide key documents to the other party or to the PCC itself. The protocol provides that any material submitted by a publication to the PCC in the course of a complaint will be seen by the complainant. It also provides that the PCC will consider on request providing to the complainant copies of our correspondence conducted during an investigation with editors. The PCC has no power to subpoena documents, having argued in the past that a power of subpoena would contribute to delay in the system.21 There is no obligation on a complainant or a publication to disclose to the other party or to the PCC documents which might undermine a partys own case or strengthen that of the other party. While the PCC does have the power to hold oral hearings, that power has never been exercised. According to the PCCs response to the 2010 Independent Governance Review, oral hearings would be undesirable because they might undermine two key virtues of the PCC system, namely that the system is free and fair.22 On some occasions, the PCC has found that, after the conclusion of investigations, it has insufficient information to reconcile the positions of the parties and, as a consequence, has declined to come to any conclusion as to the merits of the complaint. There are other instances of PCC decisions in which the PCC has not upheld a complaint on the basis that there was not enough evidence for it to be sustained; on its face, however, it seems that if key documents were disclosed, the matter might have been resolved.
3.17
3.18
3.19
3.20
3.21
p85, para 189, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-StephenAbell.pdf 17 p85, para 190, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-StephenAbell.pdf 18 p86, para 193, ibid 19 pp86-87, paras 193,195-196, ibid 20 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA-H213.pdf 21 http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/532/53204.htm 22 p8, para 25, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA-F2.pdf
16
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Action to prevent publication of material that does not comply with the PCC Code 3.22 On occasion, the PCC coordinates with publications and complainants who are at the centre of a specific news story.23 Where the police are involved, the PCC might seek to approach the subject or probable subject of stories through the police (such as contact with Cumbria police following the shootings by Derrick Bird);24 or through other representatives such as solicitors (as in the case of Christopher Jefferies).25 The PCC can send a private advisory note to editors, making it clear that an individual does not want to speak to the media. Preventing harassment by journalists 3.23 Harassment by journalists is covered by Clause 4 of the PCC Code. Where an individual asks a publication to desist from questioning, telephoning, pursuing or photographing him, the Code makes clear that publications should not persist in their pursuit of the individual.26 The PCC has developed a system whereby it can communicate the request of a complainant to an individual newspaper or to the whole print and broadcast industry. Since 2003, the PCC has operated a 24-hour helpline,27 the number for which is advertised on the PCC website. The system, referred to by some as a desist order, has been widely praised by both members of the public and those who have benefited from the system. However, it is notable that this has been used only rarely, and only in circumstances in which individuals have been placed under sustained, intense and intrusive media speculation. Limitations on the PCCs role 3.24 The Articles of Association also make express a number of explicit limitations on the PCCs competence to consider complaints. These are: (a) (b) (c) the PCC can only consider complaints made by the person affected or by a person authorised by him to make a complaint (Article 53.3(a)); the PCC cannot consider a complaint where the matter complained of is the subject of proceedings in a court of law or tribunal in the United Kingdom (Article 53.3(b)); and where the person affected has a remedy by way of proceedings in a court of law in the United Kingdom, the PCC may consider the complaint if in the particular circumstances of the case it appears to the Commission that it is appropriate for the Commission to consider a complaint about it.
The PCC only deals with complaints relating to an article in a newspaper, magazine or periodical, or on the website of a newspaper, magazine or periodical.
p206, para 272, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-StephenAbell.pdf No records of these approaches were kept before May 2010 24 p206, paras 272 & 291, ibid 25 p206, paras 270-271, ibid 26 pp185-186, paras 254-261, 280.2, ibid 27 p44, para 87, ibid
23
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Powers and sanctions 3.25 The PCC has only limited powers available to it. For instance, as already observed, the PCC has no power to subpoena documents. The PCC also has a range of sanctions available28 which, in brief, are: (a) (b) (c) (d) (e) 3.26 negotiation of an agreed remedy; publication of a critical adjudication; a letter of admonishment from the PCC Chairman to an editor; follow-up by the PCC to establish what steps have been taken to avoid a repeat of a breach and what steps have been taken against those responsible for breaches; and referral of an editor to his publisher.
Although criticised by a number of witnesses (including Dr Martin Moore and Professor Greenslade) as inadequate, Baroness Buscombe told the Inquiry that the current sanctions regime available to the PCC had been broadly effective.29 Indeed, in its response to the Culture, Media and Sport Select Committee report, the PCC said at present, the Commission believes that its powers are effective and can point to a culture in which its sanctions have real impact.30 The PCC has also pointed to the growing number of settled complaints as testament to the efficacy of the current sanctions regime. Both Baroness Buscombe and Sir Christopher Meyer told the Inquiry that the possibility of an adverse adjudication on an editor of a newspaper was a real and effective sanction. Sir Christopher said that editors would go to considerable lengths to avoid an adverse adjudication and that this was to the benefit of the complainant.31 Baroness Buscombe went further, observing that editors reacted with fury to the announcement of an adverse PCC adjudication and that the effect of such an adjudication on an editor was considerable.32 In so doing, Baroness Buscombe has implied that the deterrent and punitive effect of a PCC adjudication was real. However, elsewhere in her evidence, she appeared to concede that the deterrent impact of an adverse adjudication from the PCC was not as effective as might have been suggested. She accepted that the anger she had experienced from editors when providing notice of a forthcoming adjudication was at the fact of personal criticism rather than its content and impact.33 Baroness Buscombe also explained that both the Daily Mirror and the Financial Times had threatened to leave the PCC as a consequence of an adverse adjudication. She accepted the suggestion of the Inquiry that this reflected that the balance of power within the selfregulatory system for the press may be wrong.34 However, she was emphatic that, although
3.27
3.28
28
para 185 et seq. http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-StephenAbell.pdf 29 p61, lines 2-8, Baroness Buscombe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-7-February-2012.pdf 30 p61, lines 19-22, Baroness Buscombe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcriptof-Morning-Hearing-7-February-2012.pdf 31 p17, paras 2-11, Sir Christopher Meyer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Afternoon-Hearing-31-January-2012.pdf 32 p62, lines 9-12, Baroness Buscombe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-7-February-2012.pdf 33 pp62-63, lines 23-25, Baroness Buscombe, ibid 34 pp62-63, lines 10-25, Baroness Buscombe, ibid
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an issue for the system of self-regulation through the PCC, adverse and indeed disdainful reactions from editors to PCC adjudications were rare and limited to a small minority.35 3.29 In a further reflection on this point, Baroness Buscombe acknowledged that the current state of affairs impacted directly on levels of trust in the PCC and that, as a consequence, there was very real difficulty in persuading both policy makers and members of the public that an adverse adjudication was, in fact, an effective sanction.36 It is important to note in this context that the PCC has no power to enforce its adjudications or rulings if they are ignored by an editor or publisher. The lack of power in this respect has been the subject of some criticism and had already been identified as an issue to be reviewed by the PCC Reform Committee by February 2012.37 A further analysis of the punitive and deterrent impact of adjudications as a sanction is undertaken later in the Report.38 Options for appeal or review 3.31 There is no avenue within the self-regulation system through which complainants can appeal against the substance of a PCC decision. The Inquiry has been told that this was the source of some frustration to complainants, and indeed, had dissuaded some from taking complaints to the PCC in the first instance. On occasion, parties who have been informed of the substance of the outcome of adjudications in their cases have asked the PCC to reconsider its decision.39 However, when this happens, the PCC has only reviewed the process of the handling of the complaint and not the substance of the material decisions made. Charter commissioner and independent reviewer 3.32 The position of Charter Commissioner was introduced in 2003, together with a Charter Compliance Panel, as part of the policy of permanent evolution initiated by Sir Christopher Meyer. The function of the Charter Commissioner is defined under Articles 55 and 56 of Articles of Association as to:40 consider complaints (other than complaints relating to the substance of an adjudication) from persons who have received a decision from the Commission and who are dissatisfied with the way in which the Commission has handled their matter. 3.33 The first Charter Commissioner was Sir Brian Cubbon, who served until 2009. He was replaced by Sir Michael Wilcocks (who became the first Independent Reviewer). The Independent Reviewer is now Professor Robert Pinker CBE: he served as a Public Member of the PCC between 1991 and 2004 and was Acting Chair in 2002-2003 and in 2011. The role of the Charter Commissioner was characterised in the 2003 PCC Annual Report as being to operate a sort of internal system of judicial review. The Charter Commissioner is assisted in his work by the Charter Compliance Panel. Article 55.1 sets out the role of the Charter Compliance Panel as:41
3.30
35
p88, lines 16-17, Baroness Buscombe, ibid p61, lines 9-14, Baroness Buscombe, ibid 37 p85, para 187 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-StephenAbell.pdf 38 Part J Chapter 2 39 For example A Woman v Clevedon People, p8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Exhibit-SA-J211.pdf 40 p15, http://www.pcc.org.uk/assets/111/PCC_Articles_of_Association.pdf 41 p15, ibid
36
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to examine the handling of complaints by the Commission pursuant to Article 53. 3.34 In practice, the Charter Commissioner and the Charter Compliance Panel provide an avenue through which a complainant might refer his or her complaint if he or she believes that there had been some procedural defect in the way that the complaint had initially been handled. However, the Charter Commissioner had no remit to look at the substance of a complaint. This role has, since the independent governance review, been included unaltered in the position of Independent Reviewer. Pro-active work by the PCC 3.35 The PCC produces Guidance Notes to assist the industry with particular issues where there is an apparent need.42 Such guidance has been produced on a range of subjects including: the reporting of suicide (developed together with the Samaritans); the reporting of people accused of crimes; payments to parents for material about their children and the reporting of court cases involving sex offences. The PCC also publishes Annual Reviews. Among other information, these contain statistics about the number and types of complaints received. In addition, the PCC has in the past organised public events such as talks and Question & Answer sessions.
D
3.36
4. pressBof
4.1 PressBoF, is responsible for the organisation and collection of the levy which funds the PCC from the newspapers and periodicals participating in it. PressBoF is a company limited by guarantee and was incorporated shortly before the inauguration of the PCC. The membership of the Board of PressBoF is set out under Article 5 of the Articles of Association.43 Currently, three members of the PressBoF Board are drawn from the Newspaper Association; three members from the Newspaper Society; two from the Periodical Publishers Association and two from the Scottish Daily Newspaper Society.44 The Board members are appointed by their trade association and in turn appoint the Chair, currently Lord Black of Brentwood (who, between 1996 and 2003 was the Director of the PCC). The structure of PressBoF is based loosely on the funding body for the Advertising Standards Authority.45 However, whilst the funding structure underpinning that organisation has been made public, that is not the case with the PCC or PressBoF. As a consequence, there is little public understanding of how the PCC budget is financed. This has been the subject of both criticism and speculation. In addition to the oganisation of funding for the PCC, PressBoF also exercised full control over the appointment of the PCC Chair, as well as playing a prominent role in the appointment of new members to the Commission until changes were introduced as part of the 2010 Internal Governance Review.46 The Inquiry has heard detailed evidence from Lord Black, who has been Chair since September 2009, which has helped to explain the role of PressBoF as to the function of the PCC. He told the Inquiry that PressBoF not only funded the PCC through the collection and disbursement
4.2
4.3
p197, para 262, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-StephenAbell.pdf One of these is a note on Data protection Act, Journalism and the PCC Code (2005), http://www. levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA-K6.pdf 43 p4, para 15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Lord-Black1.pdf 44 p4, para 16, ibid 45 Shannon, R. (2001) Op. Cit., p38 46 Part J, Chapter 3
42
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of the levy, it also had a fundamental role in relation to the exercise of its functions, as all decisions relating to the role and remit of the PCC must first be ratified by PressBoF. Lord Black explained that this was to ensure that no substantive changes were made to the role of the PCC without consultation with the industry.47 In part, this was enforced through an undertaking made by Commissioners, on their appointment to the PCC, not to agree any changes to the articles of association without the express permission of PressBoF. This was one of two such undertakings made by Commissioners to the PCC, the second being to contribute 1 to the winding up costs of the PCC should this ever prove necessary.48 4.4 Lord Black also explained the generality of the PCC funding arrangements. Payments by national newspapers accounted for 54% of the levy, regional newspapers paid 39% of the levy and magazines paid the remaining 7%.49 Lord Black explained that, each year, PressBoF asked the national press through the National Newspaper Association to pay a specified amount towards the levy.50 The contribution from each member of the NPA was decided by a formula derived from the amount of news print consumed by each member and the number of publications owned by each member.51 This calculation was made through the NPA as some of the information needed to deduce the level of contributions to the levy was commercially sensitive.52 Although the membership of the NPA was in the public domain, the details of who paid for what were not public53 or, indeed, shared with PressBoF, as members of the Board or PressBoF staff may have links with the individual publishing houses.54 The monies collected through the levy were collected and passed on to PressBoF twice each year.55
4.5
Role of PressBoF in PCC appointments

4.6 PressBoF also plays an important role in the appointment of personnel to the PCC, 56 including to the position of Chair. Lord Black made the point that the appointment process had not been static but had changed, becoming increasingly transparent,57 over time: he noted that the appointment of the first Chairman of the PCC, Lord Wakeham in 1991, was done effectively by a tap on the shoulder, with no outside scrutiny or independent influence.58 By comparison, Lord Black explained that the appointment of Sir Christopher Meyer in 2003 involved the use of specialist recruitment consultants. The process for the more recent appointment of Baroness Buscombe was more transparent, and was built around the public advertisement of the post in the national press.59 Further changes had since been made as a consequence of the independent review of the PCC governance processes; these were
4.7
47
p3, lines 7-9, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-MorningHearing-1-February-2012.pdf 48 p3, lines 2-6, Lord Black, ibid 49 p4, lines 20-23, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-MorningHearing-1-February-2012.pdf; p6, para 20, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/WitnessStatement-of-Lord-Black1.pdf 50 p5, lines 3-5, Lord Black, ibid 51 p5, lines 6-9, Lord Black, ibid 52 p5, lines 16-20, Lord Black, ibid 53 p5-6, lines 24-2, Lord Black, ibid 54 p5, lines 16-18, Lord Black, ibid 55 p5, lines 13-15, Lord Black, ibid 56 pp22-23, lines 24-6, Lord Black, ibid 57 p23, lines 1-13, pp23-24, lines 17-23, Lord Black, ibid 58 p31, lines 11-24, Lord Black, ibid 59 p31, lines 17-24, Lord Black, ibid
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intended to make the appointment process more open and independent of the industry.60 However, it is important to note that, although lay members of the PCC were involved in the appointment of Lord Hunt in 2011, they owned no formal role in the process. 4.8 The appointment of Lord Hunt incorporated these changes for the first time. Following the resignation of Baroness Buscombe, the position of PCC Chair was advertised in the national press in August 2011. A firm of recruitment consultants, Korn, Ferry, Whitehead, Mann, were appointed to manage the process for the first time and an independent assessor was also appointed to oversee the process. The independent assessor provided an audit note of the complete application process. Applications were made not to PressBoF but direct to the recruitment consultants. They drew up an initial long-list which was discussed with both the independent assessor and the PressBoF Board. Those discussions resulted in the production of a shorter list and prospective candidates were interviewed by the consultants in the first instance. At that point, a final shortlist of some 12 candidates was drawn up by PressBoF and formal interviews took place during September 2011. A subcommittee of five members was involved in the interview process. That committee made a final recommendation to the PressBoF Board. The involvement of lay members was indirect. In the first instance, they were provided with an opportunity to put names forward for the post.61 Later, members were offered a meeting with Lord Hunt at which they were provided with an opportunity to give their views on the type of Chair they thought appropriate to the position.62 In his evidence to the Inquiry, Lord Black said that he spoke with all lay members of the Commission, with one exception.63 Further, the Deputy Chair of the Commission, Ian Nichol, was appointed to liaise between the independent assessor and the recruitment consultants to monitor the process.64 Lord Black rejected the notion, put to him by Robert Jay QC, that, in practice, the position of PCC Chair was a de facto political one, on the basis that the post did not deal with political matters. Lord Black also noted that Lord MacGregor of Durris, the first Chairman of the PCC, was a Liberal Democrat Peer.65 He also emphasised that the most recent recruitment process had been open to applicants from all political parties.66 Lord Black told the Inquiry that the politics of Lord Hunt, the fourth Conservative Party peer to have held the post of PCC Chair, had played no role in his appointment.67
4.9
4.10
4.11
The Editors Code Committee

4.12 The Code Committee is responsible for the wording of the Editors Code of Practice. The Code Committee has also been responsible for producing the Editors Codebook, which brings together the Code and the PCC case law. The Code Committee is made up of editors appointed by the relevant trade bodies of the newspaper and magazine industry. The current Chair of the Code Committee is Paul Dacre, the editor-in-chief of Associated Newspapers. The PCC is represented through its Chair or Director at every meeting of the
4.13
60 61
p23, lines 7-13, Lord Black, ibid p24, lines 8, Lord Black, ibid 62 p24, lines 5-7, Lord Black, ibid 63 p24, lines 10-13, Lord Black, ibid 64 p24, lines 14-18, Lord Black, ibid 65 p32, lines 9-12, Lord Black, ibid 66 p32, lines 11-24, Lord Black, ibid 67 p32, lines 14-16, Lord Black, ibid
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Code Committee and the PCC Commissioners must ratify any changes to the Code before they become valid.68 4.14 Lord Black has said that representation of serving editors on the Committee of the Editors Code of Practice is a basic requirement for the success of the system of self-regulation. In his view, serving editors brought necessary expertise and industry knowledge to the system and, in particular, an awareness of the dilemmas faced by staff in newsrooms.69 He suggested that majority industry representation was normal for systems of self-regulation, and was certainly the case with regard to systems of press self-regulation globally.70 However, Lord Black did concede that public or independent representation on the Code Committee or a successor body would need to be considered going forward, particularly as this would be central to any effort in rebuilding public trust and confidence.71 Having said that, Lord Black categorically rejected the notion that that the Code Committee was not suitably independent of either PressBoF or the industry more widely. He told the Inquiry that, whilst PressBoF provided funding to the PCC, and although PressBoF, through the Code Committee, determined the Code, the independence of the complaints process by the PCC was sacrosanct.72 He noted that his formal engagement with the Commission was rare, limited to one meeting each a year, the purpose of which was to update the Commission on the state of the industry. In his view, there was no capacity to exercise control over the function of the PCC.73 Importantly, Lord Black clarified that the Editors Code of Practice Committee was a part of PressBoF and not the PCC. It was not, therefore, subject to the same level of lay scrutiny and influence as the PCC. Indeed, the only lay representation on the Editors Code of Practice Committee was through the Chair and Director of the PCC, who were entitled to attend in an ex-officio capacity.74 As neither were entitled to participate in discussions or in any decisionmaking capacity, it is clear that the influence of lay members on the Committee was limited.75 Witnesses from the PCC pointed to the merit in allowing serving editors to sit on decisionmaking boards like the Code Committee, particularly in the light of the current knowledge and experience they brought of a fast moving industry. Similarly, a number of editors told the Inquiry that such input to the Code was crucial if the Code was to have sufficient credibility with the industry. The same point was also made by Lord Hunt, who stated that it was important that any rules for the press, particularly around standards, were written by professionals with an appropriate level of knowledge and experience.76 However, there was some recognition that this knowledge could be brought to bear by former editors or, indeed, other industry experts. Lord Grade accepted that the codes developed by the Communications regulator Ofcom did not suffer because input came from former rather
4.15
4.16
4.17
4.18
p235, para 350, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-StephenAbell.pdf 69 p34, lines 5-8, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-MorningHearing-1-February-2012.pdf 70 pp33-34, lines 19-5, Lord Black, ibid 71 p34, lines 9-12, Lord Black, ibid 72 pp29, lines 10-15, Lord Black, ibid 73 pp29, lines 15-17, Lord Black, 74 p6, lines 21-25, Lord Black, ibid 75 p7, lines 11-13, Lord Black, ibid 76 p69, lines 1-9, Lord Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-AfternoonHearing-31-January-2012.pdf
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than serving journalists.77 He also acknowledged that credibility with the industry could also be achieved through other means, such as consultation on the content of a code with serving industry editors, rather than their direct input through representation on the Code Committee.78 4.19 On one occasion at least, the Code Committee had been required to play a role as arbiter of the meaning of a given provision of the PCC Code where the PCC found that there was ambiguity.79 On 22 September 2010, Baroness Buscombe wrote to Ian Beales (Secretary to the Code Committee) asking for clarification of Clause 15 of the PCC Code (payments to witnesses).80 This was in the context of the Mail on Sunday having made payments to Baroness Scotlands housekeeper. On that occasion, the Editors Code Committee took legal advice from Mr Jonathan Caplan QC, and that advice was relayed to the PCC by Ian Beales.81
D
4.20
The Editors Code of Practice

The Editors Code of Practice is the cornerstone of the system of self-regulation for the press,82 and it is the responsibility of the PCC to ensure that the Code is properly enforced. The PCCs website states that all members of the press have a duty to maintain the highest professional standards.83 It makes clear that these standards are set out in the Code of Practice, and that the Code acts as a benchmark for those ethical standards. According to the PCC, the Code protects both the rights of the individual and the publics right to know. Although there was later comment about ways in which the Code could be improved, witnesses to the Inquiry have, in the main, spoken favourably about its content. It has been praised by witnesses for being both readily understandable and usable. Even those witnesses who have been otherwise critical of the PCC, have spoken in favourable terms about the Code: for example, Alan Rusbridger, the editor of the Guardian, has described the Code as good. The PCC makes clear just how the Code should be interpreted by editors: the PCC website states that the Code should be honoured not only to the letter but in the full spirit.84 Issues around interpretation are elaborated further on the website, including the unambiguous statement that the Code should not be interpreted so narrowly as to compromise its commitment to respect the rights of the individual, nor so broadly that it constitutes an unnecessary interference with freedom of expression or prevents publication in the public interest.85 Lastly, the PCC makes clear that it is the responsibility of editors and publishers to apply the Code to editorial material in both printed and online versions of publications. They should take care to ensure it is observed rigorously by all editorial staff and external contributors, including non-journalists, in printed and online versions of publications.
4.21
4.22
4.23
p54, lines 9-22, Lord Grade, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-31-January-2012.pdf 78 pp54-55, lines 17-8, Lord Grade, ibid 79 p236, para 355, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-StephenAbell.pdf 80 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA-M13.pdf 81 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA-M14.pdf 82 http://www.pcc.org.uk/cop/practice.html 83 http://www.pcc.org.uk/cop/practice.html 84 p7, lines 21-25, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-MorningHearing-1-February-2012.pdf 85 http://www.pcc.org.uk/cop/practice.html
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Amendments to the Code

4.24 The Editors Code of Practice has developed through a process of iteration over the last two decades, responding to challenges and concern at the behaviour and actions of the press.86 The Code has now been amended on at least 30 occasions, most notably following the death of Diana, Princess of Wales, in 1997. The most substantial of the amendments made to the Code of Practice have related to privacy and, in particular, the privacy of minors. Specifically, new wording was introduced to clause 3 in relation to privacy. This was largely drawn from the European Convention on Human Rights which, at the time the amendments to the Code of Practice were made, was about to be incorporated into UK law.87 Significantly, these amendments also altered the definition of a private place, to include both public and private places where there is a reasonable expectation of privacy. Changes were also made to Clause 1 on accuracy to cover photographic manipulation.88 Further amendments to the Code sought to address concerns around the alleged role and actions of the paparazzi in the death of Princess Diana and the manner in which some photographs were sought. To address these concerns, provisions on harassment were expanded and revised to include a ban in the use of information or pictures obtained through persistent pursuit. This new Clause 489 also made explicit the responsibility of the editor not to publish material that had been obtained in breach of this clause, regardless of whether the material had been obtained by the newspapers staff or by journalists or other staff employed on a freelance basis.90 A new clause 6 was also introduced, making explicit provision for the protection of the rights of children to privacy while they were at school (previously, this clause had referred only to children under the age of 16). The revised clause 6 also forbade payments to minors or the parents or guardians of children for information involving the welfare of a child (unless demonstrably in the childs interest), and introduced a requirement for a justification for the publication of information about the private life of a child other than the fame, notoriety or position of his or her parents or guardian.91 The final changes saw the phrase should not replaced by must not throughout the Code, and the amendment of the section on the public interest to ensure that, in cases involving children, an editor must demonstrate an exceptional public interest to over-ride the normally paramount interests of the child.92 Despite these attempts to keep the Code updated, the Inquiry has heard some criticism about the opaqueness of the drafting process, as well as the limited opportunity afforded to members of the public to influence the process of amendment. The Media Standards Trust, for example, said:93
4.25
4.26
4.27
4.28
4.29
p236, para 356, http://www.levesoninquiry.org.uk/wpcontent/ uploads/2012/01/Witness-Statement-of-Stephen-Abell.pdf; http://www.pcc.org.uk/cop/evolving.html 87 http://www.pcc.org.uk/cop/evolving.html 88 http://www.pcc.org.uk/cop/evolving.html 89 http://www.pcc.org.uk/cop/evolving.html 90 http://www.pcc.org.uk/cop/evolving.html, 91 http://www.pcc.org.uk/cop/evolving.html 92 http://www.pcc.org.uk/cop/evolving.html 93 p38, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Standards-Trust.pdf
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It [the Code of Practice] has grown up outside of public scrutiny, framed by those responsible for putting it into practice. 4.30 This criticism has, however, been rejected by representatives of the PCC. Lord Black indicated that there were a number of means through which the public could contribute to the amendment of the code.94 He specifically pointed to the annual review of the Code, which is undertaken by the Code Committee, during which suggestions for amendments were invited from Committee members, interested parties and the public.95 In practice, the Inquiry heard that the opinions and views offered by members of the public or from individuals outside of the newspaper industry were rarely heard. Lord Black acknowledged, in response to questions about the influence of lay voices and views on the Committee, that, as the Committee was an Editors Code Committee, the voice of the press was bound to be predominant.96 However, he also suggested that this potential bias was mitigated by the breadth of freely voiced opinion across the Code Committee.97 Lord Black was asked about criticisms that the Committee was slow to respond or adapt to criticism, that it had put the system of self-regulation ahead of the needs of individuals, particularly those who had been subject to abuse and mistreatment by the press, and had not looked critically or objectively at the efficacy of the system.98 He denied that any of these were sustainable criticisms, and suggested instead that the sustained level of funding by the industry for an independent system of self-regulation had brought about a number or real successes, including significant improvements to the behaviour of journalists and the press.99 In particular, Lord Black noted improvements in behaviour related to harassment and the treatment of children and hospital patients.100 He also suggested that a key, but hidden, success of the changes that stemmed from the Code of Practice was the increased tendency of editors to receive and deal with complaints themselves, particularly around accuracy, without referral to the PCC.101 Lord Black was particularly keen to make clear to the Inquiry that one of the primary functions of PressBoF, as a body that represented the industry, was forcefully to promote press freedom.102 However, he rejected the notion that this had the potential to affect the overall balance of the Editors Code of Practice by the Code Committee, by giving greater weight to the issue of press freedom, noting that there was only one member of PressBoF who sat on the Code Committee. He did, however, concede that the 13 members of the Code Committee (editors in their own right) would have clear and deeply held views of their own on press freedom.103
4.31
D
4.32
4.33
4.34
94
p7, lines 21-25, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-MorningHearing-1-February-2012.pdf 95 pp7-8, lines 22-6, Lord Black, ibid 96 p9, lines 14-15, Lord Black, ibid 97 p9, lines 19-24, Lord Black, ibid 98 pp13-14, passim, Lord Black, ibid 99 p14, lines 5-10, Lord Black, ibid 100 p13, lines 7-10, Lord Black, ibid 101 p13, lines 16-23, Lord Black, ibid 102 p17, lines 20-23, Lord Black, ibid 103 p18, lines 2-10, Lord Black, ibid
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5. Benefits of self-regulation
5.1 Witnesses from the PCC were clear about the benefits of a system of self-regulation for the press. They suggested that any form of statutory regulation for the press in the UK would also undermine the efficacy of the ex-ante interventions currently undertaken by the PCC, particularly work intended to stop the publication of particularly damaging or defamatory articles.104 If this function were passed to a statutory body open to political capture then the potential for abuse of that function would have worrying and significant implications for freedom of expression.105 To illustrate his point, Lord Grade provided the example of complaints to the BBC about Jonathan Ross and Russell Brand in October 2008. The BBC Trust was able to issue an apology and a correction within ten days, whereas Ofcom took almost three months to investigate the same complaint and reach broadly similar conclusions. Lord Grade also suggested that, given the nature of complaints directed to the PCC, speed of resolution is of primary importance to the complainant. Lord Hunt said that he firmly believed in the value of self-regulation above formal statutory regulation, which he suggested was open to political interference.106 By contrast, he suggested that independent, voluntary, self regulation of the press, for the press and in the public interest was preferable and the optimal of the available approaches. Ideally, such a system of self regulation should be universal but he did not expand on his thinking as to how bodies outside that system might be induced to join. Like other witnesses to the Inquiry, Lord Hunt has argued that it is the press who are in best position to correct the perceived failings with the current system of self-regulation and develop a solution that is more appropriate for dealing with the issues described to the Inquiry. Lord Hunt also suggested it is only by the press working together that a system of regulation such as that outlined by Sir David Calcutt in his second report can be achieved.107 A similar line of argument was advanced by Baroness Buscombe, who told the Inquiry that the speed and flexibility of the current system are advantageous when compared with attempts to find resolution through the courts.108 She noted the harm that could be done to individuals as a consequence of drawn out court processes.109 In her evidence to the Inquiry, Baroness Buscombe suggested that the collaborative structure of the PCC was a strength.110 She suggested that had the system of self-regulation been closer to a formal regulatory process, with potentially a system of fines for breaches, the efficacy of the PCC in dealing with complaints and pre-publication issues would have been compromised. She has argued that such a change would have made the system more adversarial and would have necessitated the involvement of lawyers in decision making, leading to drawn out processes which would have resulted in a lesser service to the public.111
5.2
5.3
5.4
5.5
5.6
104
p35, lines 13-21, Lord Grade, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-31-January-2012.pdf 105 p36, lines 1-9, Lord Grade, ibid 106 p59 lines 10-16, Lord Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-31-January-2012.pdf 107 p67, lines 9-17, Lord Hunt, ibid 108 pp38-39, Baroness Buscombe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-7-February-2012.pdf 109 pp38, lines 1-12, Baroness Buscombe, ibid 110 p58, lines 5-12, Baroness Buscombe, ibid 111 p587, lines 14-23, Baroness Buscombe, ibid
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5.7
Lord Hunt also suggested to the Inquiry that a regulatory regime backed in statute would not be sufficiently flexible as an independent self-regulatory system. In particular he worried that a regime backed in statute would not be able to respond to new challenges as they emerged, as such a system would require changes to the law and would be beholden to the Parliamentary timetable.112 By contrast, Lord Hunt argued, an independent regulator could make changes in a more timely fashion. Although Lord Hunt conceded that it was perfectly possible to base the new system on legislation that was not proscriptive, he suggested that his experiences as a Parliamentarian led him to believe that legislation could rarely account adequately for future circumstances.113
6. anti-harassment policy D
6.1 The PCC operates an anti-harassment hotline for the general public through which an individual might communicate a desire for press attention to cease to newspapers. Such a request may result in the Commission issuing a desist order to newspapers after which press attention in the person in question should cease. In his evidence to the Inquiry, Stephen Abell said that the PCC anti-harassment service was one of the cornerstones of the fast moving part of the system of self-regulation for the press; something, that by implication may not be possible or practicable under a different system.114 The service was regarded by the PCC as an important complement to Clause 4 (harassment) of the Editors Code of Practice. This states that journalists: must not persist in questioning, telephoning, pursuing or photographing individuals once asked to desist; nor remain on their property when asked to leave and must not follow them. If requested, they must identify themselves and whom they represent. 6.3 The anti-harassment service is intended, therefore, to provide members of the public and other individuals affected by the actions and behaviour of journalists with the means of making express the terms of the Clause 4 of the Editors Code of Practice. Although the PCC has no formal responsibility for broadcast journalists, as these are not covered by the terms of the Editors Code, the PCC has, as a rule, forwarded desist notices to broadcasters, who have then taken appropriate action to ensure that their journalists abide by the will of the desist notice. Mr Abells written evidence to the Inquiry noted that:115 This helps to reduce the problem of media scrums that involve journalists from all forms of media. 6.5 The anti-harassment service is accessed through the 24-hour helpline operated by the PCC. The PCC website provides comprehensive details of the service and the circumstances under which it might be used. The PCC has made clear that the initial telephone conversation with the affected party or, in some cases, their representatives is usually handled by a senior member of Commission staff. The PCC will also request an email setting out the concern or allegation from the individual in question. This email then becomes in effect the desist notice,
6.2
6.4
p94, Lord Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing31-January-2012.pdf 113 p96, Lord Hunt, ibid 114 p69, lines 11-19, Stephen Abell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-30-January-2012.pdf 115 p185, paras 255-256, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-ofStephen-Abell.pdf?
112
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which the PCC will then forward to a list of senior editorial and legal representatives. I note that Mr Abell has written that: Almost invariably, it is followed and the attention ceases.116 6.6 In his written evidence, Mr Abell suggested that the service could be used prophylactically. He provided the example of a grieving family who might contact the PCC ahead of an inquest or funeral, to make their wishes known. He noted that in such circumstance the PCC will act to disseminate their position immediately. I note that in this regard, the PCC has produced specific guidance both for bereaved individuals and also for journalists in relation to grief and intrusion into grief. This guidance encourages the bereaved to use the anti-harassment service. This guidance has been disseminated to all UK police forces and coroners courts.117 The PCC has said in evidence that the anti-harassment service also had an application for individuals in the public eye. It was explained that a desist order acted as a check on the publication of paparazzi photographs obtained through harassment. Mr Abell stated:118 The starting premise is that as soon as an editor publishes a photograph, he or she is taking responsibility for the conduct of the person providing it. 6.8 He noted further that:119 This places the onus on the editor to take care over the publication of photographs of the affected individual. This in turn means that non-compliant photographs are not bought by newspapers or magazines, and the market for them dwindles. This in turn affects the behaviour of the paparazzi in regard to the individual. 6.9 The PCC suggested that the use of the anti-harassment service was the most effective means currently available of influencing paparazzi. Mr Abells written evidence explained that, as a class, the paparazzi were not regulated through any formal mechanism. Therefore, restricting the market for paparazzi photographs that may have been taken in breach of the code, or in contravention of a desist notice, helped to enforce standards of behaviour.120
6.7
116
p185, para 256, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-StephenAbell.pdf 117 pp185-186, para 258, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-ofStephen-Abell.pdf 118 pp185-186, para 259, ibid 119 pp185-186, para 260, ibid 120 pp185-186, para 260.0, ibid
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table D2.1 total number of Desist notices

Month Jan 2010 Fen 2010 Mar 2010 Apr 2010 May 2010 Jun 2010 Jul 2010 Aug 2010 Sep 2010 Oct 2010 Nov 2010 Dec 2010 Jan 2011 Feb 2011 Mar 2011 Apr 2011 May 2011 Jun 2011 Jul 2011 Aug 2011 Sep 2011 Oct 2011 Nov 2011 Dec 2011 Jan 2012 Feb 2012 Mar 2012 Apr 2012 May 2012 Jun 2012 total number of Desist and private advisory notices* 8 4 11 5 4 1 2 3 8 7 4 2 10 9 13 12 12 11 16 10 7 5 11 14 13 12 11 17 7 6 (up to 27 June 2012)
th
255
* The PCC makes no distinction between a desist notice and a private advisory notice. A desist notice is an internal PCC term for a notice in relation to Clause 4 of the Editors Code of Practice (harassment).
6.10
At the time of writing, the PCC had issued 255 desist notices since January 2010 (as set out in Table D2.1). I note that, whilst there is no significant variance in the recorded monthly figures, the trend is towards the more frequent issue of these notices. I have heard little evidence that has been critical of the anti-harassment service operated by the PCC and it would be appropriate, therefore, to restrict myself to some general comments only. I note, first, that the service appears to be well regarded. The PCC has provided me with evidence of the efficacy of this service in helping those in often extraordinary circumstances
6.11
238
to benefit either from a desist notice or in helping affected parties manage press and other media interest. 6.12 This additional evidence was submitted in response to comments made in evidence by Gillian Shearer, the Communications Director for the Cumbrian Police Force, in relation to shootings in Whitehaven in Cumbria in July 2010. Ms Shearer described what she regarded as the aggressiveness of the press, the impact on the families concerned and the failure by the press to adhere to the police notice requesting that the media respect the families wishes for privacy. She also criticised what she suggested was the failure of the PCC to respond meaningfully both to events but also the wishes of those individuals affected.121 In the evidence he has provided to the Inquiry, Michael McManus, the Transitional Director of the PCC, has sought to correct this perception of the actions of the PCC; he provided the Inquiry with a detailed description of the PCCs activities in response to events in Whitehaven. It is to be borne in mind that although the events Mr McManus has described were extraordinary, they illustrate well the services the PCC is able to offer those individuals who become the subject of intense press attention. Mr McManus has written that:122 On the day of the shootings, a member of PCC staff spoke briefly to Cumbria Police and followed up immediately with an email providing our contact details and explaining how we could help deal with concerns about media scrums and prepublication issues. A similar email was also sent to local hospitals. 6.14 Mr McManus noted that during this difficult period members of PCC staff were in regular contact with police communicators. In addition, the PCC issued a private advisory notice on behalf of one individual who had become the subject of unwanted media attention and handled a number of formal complaints about published material. I note that the then Director of the PCC, Mr Abell, travelled on 9 July 2010 to Cumbria to meet with police communicators, local clergy and the editor of the Whitehaven News. The Whitehaven News subsequently published a letter from Mr Abell setting out the PCCs services, and encouraging people to make contact with the PCC if they wished to do so. It is also clear that the PCC undertook a great deal of work in relation to events in Whitehaven. Mr McManus notes that:123 The PCC stayed in touch with the police after the shootings, and also initiated contact with the local Coroner. It is right to record that the PCC provided some assistance to Professor John Ashton, chair of the West Cumbria Shootings Recovery Group, in drafting a letter to the media requesting restraint ahead of the formal start of Inquest hearings in 2011. The PCC also worked with the police and Coroner to identify those individuals who had decided not to speak to the media; the Commission circulated a desist request on their behalf, requesting that they not be contacted. 6.16 It is clear that the work of the PCC was wide-ranging. In May 2011, the PCC organised a public meeting in Carlisle to enable local communities to speak to its representatives. The panel also included the then editor of the News and Star (Carlisle), Neil Hodgkinson. Mr McManus has
6.13
6.15
pp65-67, lines 2-2, Gillian Shearer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-26-March-2012.pdf 122 Michael McManus evidence is available on the Inquirys website 123 Michael McManus evidence is available on the Inquirys website
121
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also told the Inquiry that following these events, the PCC has amended the guidance it offers to families in dealing with the media following a death. 6.17 This is not to say that there are still not concerns with the anti-harassment service that should not be elaborated. Although the PCC website provides clear advice on the services available to members of the public with regard to harassment by journalist and photographers, it also sets a number of steps that the affected parties should follow before contacting the PCC. In certain circumstances, these steps might prove to be unduly difficult or, indeed, impossible to fulfil. They depend both on the goodwill and cooperation of the journalists and press photographers involved, as well as on the substantive efforts of the affected party who, feasibly, might not be in a position to comply with the suggested steps.124 The PCC website states:125 There are a number of practical steps that you can take to avoid unwanted or repeated approaches: 1. Get the name of the journalist and the newspaper or news agency for which they work. Tell them politely that you do not wish to speak to them and that they should not contact you again. Say that you understand that under the Code of Practice journalists must not persist in contacting you having been asked to desist. It will help if you tell them that you are saying the same to every journalist. This applies however a journalist is approaching you whether it is at home, in a public place or over the telephone. You should then be left alone. If you are not, see point 5, below. 2. If you are at home and too distressed to answer your door, pin a short note to it to say that you do not wish to speak to journalists and do not want to be disturbed. 3. Similarly, if you are being telephoned repeatedly and do not wish to speak to journalists, alter your answerphone message to say that only personal callers should leave a message as you are not speaking to the media. 4. Some people particularly at times of grief or shock find it helpful to ask a friend or neighbour who is not as closely associated with the story to deal with press enquiries. They can then answer your phone and door and either pass on a prepared statement (reflecting what is said in point 1) or turn down requests for interviews. 5. If these measures fail and you feel that you are still being harassed, contact the PCC immediately. 6.18 However, whilst the PCC guidance with regard to harassment is in most respects clear, there are significant caveats and exemptions to desist notices. In those cases where it has been impossible for the individuals concerned to establish the names of the journalists or newspapers in question, the PCC makes no claim to be able to take action. Even then, however, the website still encourages members of the public in such circumstances; it states thereafter that the PCC:126 may then be able to communicate your concerns across the industry as a whole via a general desist message, which should alleviate the problem. In so doing, the website makes no claim to the certainty of success of any action on the part of the PCC in this regard.
124 125
http://www.pcc.org.uk/news/index.html?article=Mzg2Mw http://www.pcc.org.uk/news/index.html?article=Mzg2Mw 126 http://www.pcc.org.uk/news/index.html?article=Mzg2Mw
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6.19
Lastly, it is also important to underline that the website states that, in those cases in which there is a perceived public interest, there is no obligation on the part of the press to heed a desist notice. The website does not, however, elucidate what any public interest might be, and does not provide the public and more specifically the users of the service with any degree of certainty or clarity on this important issue. Perhaps of more importance, it leaves those individuals and their families who may already be in some distress open to continued and unwarranted press attention.127
7. Complaints
7.1 I will now look how complaints are dealt with by the PCC, considering in turn the different aspects of that system: who might make a complaint; the circumstances in which an individual might complain; the limitations on the ability of a complainant to make a complaint; the informal resolution of complaints; and complaints deemed inadmissible. Before doing so, there is value is in setting into context the complaints handling process operated by the Commission. First, it is worth noting that the level of complaints received by the PCC is neither disproportionate nor excessive; the number received by the Irish Press Ombudsman is broadly similar, when adjusted for population, as is the number received by Ofcom, in relation to content. The number of complaints rejected by the PCC is also comparable to the numbers rejected by Ofcom. The majority of complaints to other regulators, however, are rejected because the complainant has not followed due process and has used the regulator in question, rather than the regulated company, as the starting point for the complaint. In such cases, the complaint is referred back to the company in question. However, this option is not available to the PCC as very few UK newspapers have formal complaints processes beyond the discretion of the editor. It is also important that the Inquiry provides a context to any discussion of the complainthandling process with the detail of the volume of complaints considered by the PCC. The figures for 2010, reported by the PCC in 2011, are the most recent full figures available, and are broadly similar to those received up to 2010. In that year, the PCC received a little over 7,000 complaints. Of these 1,687 resulted in a ruling128 and 44 in adjudications. Only two publications had more than one upheld adjudication against them.129 It is without doubt that the handling of complaints was the main and dominant part of the PCCs business, taking up most of the day to day function of the Secretariat. After salaries, administration and property costs, complaints handling accounted for the greatest part of the remaining budget. Exact figures have not been provided to the Inquiry, but it has been suggested by witnesses that the PCC budget was only just sufficient for its purposes and only just stretched to cover these costs, with no remainder for any other actual or proposed function. This raises serious questions about the ability of the model proposed by Lord Black to provide for an investigatory arm within the funding envelope suggested. Evidence presented to the Inquiry by the PCC, and taken from the routine surveying of complainants, suggests that the level of satisfaction among complainants with the conduct
7.2
7.3
7.4
7.5
127 128
http://www.pcc.org.uk/news/index.html?article=Mzg2Mw This number of complaints (7,000) includes multiple complaints (where more than one person complained about the same article), as well as those that did not fall within the Commissions remit or were not pursued after an initial contact PCC Annual Review 2010 http://www.pcc.org.uk/review10/statistics-and-key-rulings/complaints-statistics/key-numbers.php 129 PCC Statistics: a critical analysis by the Media Standards Trust, p16 http://mediastandardstrust.org/wp-content/ uploads/downloads/2012/02/PCC-Statistics.pdf
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of complaints handling by the PCC is genuinely high.130 Lord Hunt said in evidence that that the satisfaction rate among complainants to the PCC was very high. He suggested that 80% of complainants were satisfied at the outcome of their complaint. However, this figure has been called into question by other evidence submitted to the Inquiry. It has been suggested that such a figure can only be reached if all complaints are understood to have been resolved in a manner satisfactory to the complainant. 7.6 Certainly, witnesses to the Inquiry have recognised that the secretariat and, in particular, the complaints handling staff at the PCC make considerable effort to be courteous and helpful. The MediaWise Trust, an independent press watchdog that monitors the behaviour of the press, has noted that in the surveys of complainants that they have undertaken, respondents score the staff highly against these criteria.131 Complainants also appreciate the speed with which PCC staff deal with issues raised by complainants in the course of the complaints.132 PCC witnesses to the Inquiry have certainly drawn attention to the apparent satisfaction at the speed of the complaint-handling process and the value placed on this by complainants. Sir Christopher Meyer gave evidence that, in most cases, resolutions were reached within a month of the complaint first being lodged.133 Given that most editors dislike the personal criticism inherent in any upheld adjudication, it is unsurprising that they will work hard to reach a resolution to the satisfaction of the complainant. The PCC website makes clear that the Commission will deal with complaints as expeditiously as it is able. The website points to an average turnaround for the resolution of complaints of 34.8 days.134 However, in evidence presented to the Inquiry, the Media Standards Trust has suggested that this figure is misleading as it takes account of complaints which do not fall into the jurisdiction of the PCC and are therefore rejected. The Media Standards Trust notes that, although such complaints are passed on to the relevant body or organisation, they are regarded by the PCC as resolved. The Media Standards Trust suggests that the inclusion of such cases therefore serves to distort both rates of satisfaction, as well as the record of the time taken to resolve a complaint. The Media Standards Trust deduced from available PCC data that the actual figure of turnaround was an average of 106 working days, three times greater than the PCC figure.135 That said, there are limits to the analysis of any of the PCC data, as the Commission publishes information which omits the date on which a complaint is received.
7.7
7.8
Who can complain

7.9 The website states that the PCC is an independent body, which has been set up to examine complaints about the editorial content of UK newspapers and magazines (and their websites).136 It makes clear that the PCC exists to help complainants and that its services are
p230, para 345, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-StephenAbell.pdf 131 Jempson, M, Satisfaction Guaranteed: Press Complaints System Under Scrutiny, (MediaWise Trust. Bristol, 2004), p18 132 ibid 133 p17, Sir Christopher Meyer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-31-January-2012.pdf 134 http://www.pcc.org.uk/about/index.html 135 pp26-27, lines 23-14, Martin Moore, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcriptof-Morning-Hearing-8-February-2012.pdf 136 http://www.pcc.org.uk/complaints/makingacomplaint.html
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free. The PCC website explains that the Commission will deal with all editorially-controlled material in UK newspapers and magazines (and their websites). Examples are provided:137

7.10
Articles and pictures; Words and pictures (including video) on newspaper and magazine websites; Audio material on newspaper and magazine websites; Readers letters; and, Edited or moderated reader comments on newspaper and magazine websites.
The website also explains that the PCC will also consider complaints brought in relation to the behaviour of journalists. Again, examples are provided. These are:138
Persistent pursuit of individuals Refusing requests to stop taking photos or asking questions Using hidden cameras to obtain material Failing to be sensitive when dealing with cases involving grief and shock Failing to obtain the proper consent before speaking to children or people in hospital.
The website further explains that Complaints have to be judged against the terms of Editors Code of Practice. 7.11 Most importantly, the website makes clear that the PCC will only normally accept complaints only from those who are directly affected by the matters about which they are complaining.139 It explains that individuals who meet that criterion are able to make complaints to the PCC and may raise complaints through the Commission against any newspaper, magazine or publication which subscribed to PressBoF.140 The website also explains the limited circumstances in which third parties are able to make complaints. Such complaints will be considered by the Commission only in those circumstances where the third party has signed authorisation to act on behalf of the individual concerned.141 Lord Hunt has said that there is misunderstanding around the PCCs policy on complaints from third parties: they have always been able to bring complaints in relation to accuracy. However, it is clear from Chapter 1 above that, as a matter of history, it has proved difficult to bring third party complaints. Further, the evidence received from the PCC in this regard might be said to contradict this account. Thus, Mr Abell explained that it was not the policy of the PCC to take account of complaints from third parties.142 This evidence chimes with that received from a number of groups who drew attention to the difficulties they have encountered in the face of this policy.
7.12
http://www.pcc.org.uk/complaints/makingacomplaint.html http://www.pcc.org.uk/complaints/makingacomplaint.html 139 http://www.pcc.org.uk/complaints/makingacomplaint.html 140 http://www.pcc.org.uk/AboutthePCC/WhatisthePCC.html 141 http://www.pcc.org.uk/complaints/makingacomplaint.html 142 p90, para 208, Stephen Abell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statementof-Stephen-Abell.pdf
138
137
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7.13
However, the policy of the PCC has not been entirely inflexible, in particular in the fairly limited number of cases where a single article has given rise to a very large number of complaints. In some instances, complaints received from third parties may cause the PCC to contact the subject named in the article in question, or someone directly affected by that article, to consider whether they would take forward a complaint.143 In this regard the case of Stephen Gately is instructive. An article published by the Mail on Sunday about the singers death, written by columnist Jan Moir in 2009, prompted a record number of complaints from members of the public to the PCC.144 In response, the PCC contacted Mr Gatelys partner and asked if he would consider submitting a complaint.145 In the event, the PCC did not uphold the complaint, although it considered that the article had come close to breaching the Editors Code of Practice.
7.14
D
7.15
Time limits and delay

The PCC website clearly sets out a timetable for members of the public seeking to bring a complaint against a newspaper.146 Thus, in most circumstances, the PCC will not accept complaints made more than two months after the date of publication (or over two months after the end of direct correspondence between a given complainant and an editor, provided that correspondence was entered into straight away).147 The same section of the website also explains that complainants can formally submit a complaint to the PCC if the newspaper in question has failed to respond to the complaint within one week of the receipt of that complaint, but goes on to say that if the article in question remains available on the publications website, this time limitation does not usually apply. Beyond the strict timeframe set down by the PCC for the initial submission of the complaint, however, the times for each subsequent element of the complaints-handling process are not specified and no guidance is provided as to the likely duration of that process. Rather it suggests only that the steps involved in reaching the stage of an adjudication are less formal and are likely to be determined on a case by case basis.148 There are a range of resolutions that may be offered by titles. However, the PCC has no powers to stipulate the form of resolution that might be offered by the newspaper in question. Resolution can take the form of published apologies, the correction of the content in question in a future edition, the removal of the offending article from the titles archives or online editions, or private letters of apology. In a limited number of circumstances, resolution might also include ex-gratia payments or donations to charities or other organisations. Some witnesses to the Inquiry have complained about what they regarded as an unnecessary slow process that was prone to delay. Some have said that lengthy periods between correspondence and delay were not uncommon. According to an analysis undertaken by the Inquiry of complaints to the PCC between January 2009 and May 2012, declared to have been resolved during that period, the time taken to resolve a case can vary significantly. In the fastest example, the resolution of a complaint took one month; in the slowest case
7.16
7.17
p90, para 211, ibid http://www.pcc.org.uk/cases/adjudicated.html?article=NjIyOA 145 p90, para 212, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-StephenAbell.pdf 146 http://www.pcc.org.uk/complaints/makingacomplaint.html 147 http://www.pcc.org.uk/complaints/makingacomplaint.html 148 http://www.pcc.org.uk/complaints/makingacomplaint.html
144
143
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the process appeared to have lasted for three years.149 The value of an apology or other resolution after such a period of delay is questionable. 7.18 Will Moy of Full Fact stated that whilst some complaints resulted in a prompt response from the newspaper in question, sometimes within a day of two, in other cases the process of reply was much slower, taking as many as 21 days.150 In a limited number of circumstances no reply had been received from the newspaper.151 In its evidence, Full Fact provided details of a number of complaints, including one about an article published in the Evening Standard, where that newspaper did not respond until two months after the initial submission to the PCC.152 Similar experiences have been documented in the evidence provided by ENGAGE.153 The majority of complaints submitted to the PCC and ruled admissible are settled through a process of informal mediation between the complainant and the title in question. Only a very small number of complaints are not resolved in this manner, and those which fall into this category go forward for adjudication by the PCC. Complainants have a period of one month to appeal in writing to the Independent Reviewer should they wish to contest the PCCs decision (although, as already identified, the Independent Reviewer will only look at the way that the PCC handled the complaint and not its merits).154 The PCC website provides details of a total of 5,241 complaints that have been the subject of PCC rulings since 1996.155 It lists 257 such complaints in 2012, (as set out in Table D2.2) of which 96.1% were informally resolved, 1.6% were upheld at adjudication and similar a proportion were not upheld.156 In 0.8% of cases the PCC found that the newspaper question had taken sufficient remedial action to declare the complaint resolved. table D2.2: Complaints to the pCC: 2009-2012
adjudicated Complaints total number of complaints no.
7.19
Year
resolved
upheld %
against %
Sufficient remedy offered %
2012 2011 2010 2009 total
257 588 499 400 1744
96.1 93.5 91.4 86.5 91.7
1.6 3.2 4.0 7.0 4.1
1.6 1.4 4.0 5.0 3.0
0.8 1.9 0.6 1.5 1.3
7.20
Data for 2011, 2010 and 2009 suggests a similarly high proportion of complaints were resolved through informal mediation processes (93.4%, 91.5% and 86.5% respectively), with only a correspondingly small percentage of case taken forward to formal adjudication. These figures
This data is however limited in its accuracy and use, as the date of the complainants complaint is not included in the data published by the Commission 150 p39, lines 7-15, Will Moy, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-MorningHearing-8-February-2012.pdf 151 p8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Submission-by-Full-Fact.pdf. 152 pp79-81, ibid 153 p6, lines 1-20, Inayat Bunglawala, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-24-January-2012.pdf 154 http://www.pcc.org.uk/complaints/makingacomplaint.html 155 as of the end of May 2012 156 p49, lines 1-20, Stephen Abell http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-30-January-2012.pdf (This suggests a complainant success rate of 60%)
149
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show a trend towards the informal resolution of an ever larger number of cases, although this is from an already high base. Unfortunately, these figures do not relate to figures published in relation to complaints in the PCC Annual Reviews for 2009, 2010, and 2011.157 Those Reviews refer to complaints received in a given year, and break down the details into somewhat different categories. 7.21 It has been suggested by the PCC that the very large number of cases resolved informally, and through no process of adjudication by the PCC or the sustained intervention of the PCC through mediation, represented a substantial and hidden success of self-regulation.158 Others have claimed that the odds are heavily stacked against the complainant, and that the PCC does not always appear to be neutral. But Mr Abell suggested that the position of the complaints handler was one of neutrality:159 So I dont think its a neutral act by complaints people. I think their job is to grip the issues and to try and bring them to a conclusion, and that will invariably be by assisting the complainant. 7.22 In particular, Mr Abell suggested that there was no validity in the assertion that the PCCs preferred outcome of a mediated resolution was in the better interest of editors and newspapers rather than the complainant.160 Sir Christopher Meyer also rejected the characterisation of the complaints-handling process as attritional, in which intense pressures were placed on the complainant to resolve issues through mediation rather than pursuing a decision through the PCC and that the effort in reaching that resolution wass made disproportionately by the complainant.161
157
http://www.pcc.org.uk/complaints/makingacomplaint.html p12, lines 13-23, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-1-February-2012.pdf 159 p49, lines 18-20, Stephen Abell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-30-January-2012.pdf 160 pp54-55, lines 19 -20, Stephen Abell, ibid 161 pp16-17, Sir Christopher Meyer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-31-January-2012.pdf
158
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parT E crossing lEgal boundariEs: ThE criminal and civil law

E
chapTEr 1 ThE lEgal FramEwork

1.1 An Inquiry into the culture, practices and ethics of the press might not be thought to engage or require detailed consideration of the law but, as many witnesses have correctly identified, the starting point from which any assessment of the way in which the press goes about its business must be the general framework of the law. In that regard, there have been criticisms that the press is already far too over-regulated with particular reference to the complications of the ever-changing criminal and regulatory law, itself requiring training for journalists, as well as the equally ever-developing civil law. In this second category falls not only the jurisprudence in this country (in respect of which particular criticism has been made of the law of defamation) but also the effect of the Human Rights Act 1998, which gave further effect in domestic law to the rights and freedoms guaranteed under the European Convention on Human Rights and Fundamental Freedoms 1950 (Cmd. 8969) (ECHR). That has led to litigation involving the press that has not infrequently been taken through the UK courts and has then been the subject of further argument before the European Court of Human Rights. The purpose of this Inquiry is not to analyse the law in any depth but, in order to provide a wider picture to anyone interested in the issues affecting the press, it is necessary to provide some background in relation to the criminal law, the civil law and the regulatory framework provided by the Data Protection Act 1998. Where the law touches upon specific issues which fall within the Terms of Reference, a degree of analysis will follow in the text. Otherwise, a general outline has been provided in Appendices to the Report. Nobody should rely on the Appendices as a complete review of the nuances of the law: there are text books for that purpose. It is intended only to identify the broad landscape. The criminal law can touch upon the work of journalists in many ways and inevitably prescribes the ways in which it is acceptable for stories to be obtained. A brief summary of aspects of the criminal law most likely to be engaged in the pursuit of journalism is at Appendix 4 but it is neither complete in detail nor is it comprehensive. By way of example, aspects of the behaviour of Neville Thurlbeck as he pursued a follow up to his scoop relating to Max Mosley were described by Mr Justice Eady in the ensuing civil litigation as containing a clear threat to the women involved that unless they cooperated (albeit in exchange for some money) making the point that it was elementary that blackmail can be committed by the threat to do something which would not, in itself, be unlawful.1 Blackmail is not, however, a crime that is covered in this Appendix. There is no doubt room for other potential offences to be engaged in the unprincipled pursuit of a story. In addition to the substantive criminal law, it is also necessary to consider aspects of criminal procedure which recognise the important place that journalism plays in our society and accords to journalists special protection in relation to journalistic material. The restrictions and limitations on the powers of the police to search for or seize such material add to the privileges that society gives to those involved in this work: they are summarised in Appendix 4. The same is so for the civil law. Developments have undeniably broadened the focus in defamation beyond meaning, justification and fair comment. In addition, new concerns surround the concept of privacy. This has developed with the increasing recognition of the significance of Article 8 of the ECHR which, subject to exceptions, provides for everyone the right to respect for his private and family life, his home and his correspondence. Running
1.2
1.3
1.4
1.5
Mosley v. News Group Newspapers Ltd [2008] EWHC QB 1777 paras 82 and 87
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PART E | Crossing Legal Boundaries: The Criminal and Civil Law
parallel to Article 8, however, is Article 10 which, similarly subject to exceptions, provides that everyone has the right to freedom of expression, including the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. A brief summary of the most important aspects of the civil law insofar as it affects journalism or journalists is set out at Appendix 4. Again, it is not intended to be exhaustive. 1.6 A separate analysis has been completed in relation to the law of data protection (see Appendix 4). That is because it has criminal, civil and regulatory aspects and stands outside the areas of law so far outlined with the Information Commissioner being accorded, by statute, powers and responsibilities which go beyond the power to prosecute, or to commence civil proceedings. Given that the Terms of Reference specifically cover the extent to which the current policy and regulatory framework has failed including in relation to data protection the remit of the Information Commissioner will require detailed analysis beyond the brief synopsis of the legislative framework.2 Against the background of this framework, this Part of the Report will focus chronologically on the criminal investigations that have been undertaken both in relation to data protection and interception of mobile telephones, the outcome of those investigations and the reaction not only at the time but as further material entered the public domain. In particular, the milestones that led to this Inquiry include: (a) (b) (c) (d) (e) (f) the publicity accorded to the investigations by the Information Commissioner through reports to Parliament and discussions with the PCC; the outcome of each of the criminal prosecutions and, in particular in relation to Operation Caryatid, the police strategy adopted thereafter; the reaction of the press (and, in particular, the News of the World) to the prosecutions along with the response of the PCC; the impact of civil litigation; the investigations undertaken by the Guardian and, subsequently, the New York Times along with the reactions of the police and Parliament to each of the articles; the further civil litigation and the proceedings for judicial review of the strategy adopted by the police following the successful prosecutions of Clive Goodman and Glenn Mulcaire; the re-opening of the criminal investigation and the reactions thereafter of News International, the PCC and Parliament.
1.7
(g) 1.8
The purpose of this Part of the Report is to provide what is a vital narrative to the background against which the criticisms of the culture, practices and ethics of the press (or part of the press) can be considered. It starts with the police operations that led to Operation Motorman, which was an investigation that fell to the Information Commissioner. The narrative then passes to Operation Caryatid, the police investigation of interception of voicemail messages (phone hacking) and its consequences, which continue to be felt today.
Part H
250
chapTEr 2 policE invEsTigaTions sTarT

1. Operation Reproof
1.1 In 2001, the Devon and Cornwall Police were investigating an allegation of blackmail in Plymouth which sprang from the fact that a member of the public had obtained details of the criminal convictions of someone else. Not surprisingly, the police were concerned to discover how those details had been obtained and, in the course of the investigation, evidence was uncovered that an officer serving with the same force had accessed the Police National Computer (PNC) record of the victim. It was suspected that he had passed the information to individuals working as private investigators, and that the information had ultimately reached the hands of the suspect. In December 2001, therefore, a series of searches of various premises, which supported that concern, were carried out. Material was seized which indicated that police officers and support staff from the force had been obtaining details of criminal convictions and information about the keepers of identified vehicles which were stored on police computer systems and then passing that information to private investigators, who would in turn pass it onto their customers. The private investigators were, in the main, retired police officers. Thus, in January 2002, Operation Reproof was initiated. The Senior Investigating Officer for that investigation has now retired: his deputy, now Detective Chief Superintendent Middleton (then holding the rank of Detective Inspector) gave evidence to the Inquiry.1 The purpose of the operation, initially, was to scope the material that had been seized during the blackmail investigation, with the following terms of reference: (a) (b) to investigate the alleged offences and conduct interviews of the individuals identified as being in jeopardy; to establish links with other agencies to identify individuals who had unlawfully revealed confidential information, and to preserve evidence in support of suspected offences and to interview those individuals; and to report to the Crown Prosecution Service and the Police Complaints Authority.
1.2
1.3
(c) 1.4
Through an analysis of a huge amount of evidence the police discovered a network of companies and individuals throughout the UK, acting as investigators, who were sourcing information on demand, either directly from a person serving with the police or through a third party.2 In particular, the police found that a small number of police officers who had retired from the Devon and Cornwall Police had set themselves up as private investigators for the commercial market and were obtaining information from former colleagues who were still working within the police service or other agencies, such as the Department for Work and Pensions. The information was then passed through a network of individuals before it reached the ultimate customer. In most cases that ultimate customer was three or four links up the chain.
http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-T-ACC-Russell-Middleton.pdf p76, line 1, DCI Middleton, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-9-May-2012.pdf

2
251
1.5
The police sought to identify all the links in the chain and ascertain who in the chain knew that the information had been obtained unlawfully. The customers were found to be requesting either specific pieces of information or packages, which could include a persons criminal background, their financial situation, medical history, telephone records and current whereabouts. The customers ranged from individuals involved in matrimonial disputes to large financial institutions including insurance companies and debt recovery agents. The police found no evidence that the companies were aware that the information was being obtained illegally. The investigation also showed that serving and retired officers from other police forces were involved in similar illegal activities, and had links with the suspects in Devon and Cornwall. The relevant forces were contacted, including the Metropolitan Police Service (MPS) and the police forces of Dorset, Northumbria, Surrey and Essex. The investigation led the police to a data gathering company based in Surrey called Data Research Ltd. Data Research featured heavily as the third link in the chain. As it happened, at the same time, the Information Commissioner was conducting an investigation into the same company. On 8 March 2003, the police executed a search warrant at the companys offices during the course of which a significant amount of information was found which indicated that data had been obtained unlawfully from the DVLA. This information formed the basis of Operation Motorman, an investigation then also conducted by the Information Commissioner (ICO) which has formed an important part of the narrative to the Inquiry. From this investigation, the ICO passed material to the MPS, which gave rise to Operation Glade. For convenience, having dealt with Operation Reproof, the narrative will pass on to Operation Glade and then to Operation Motorman. DCS Middleton explained that the CPS and the Police Complaints Authority advised the police to focus the investigation on (i) individuals who were either systematically providing or receiving information unlawfully from databases, and (ii) the customers who knew or ought to have known that the information had been obtained unlawfully. The upshot was that two serving police officers, two retired police officers and two individuals associated with Data Research Ltd were charged with misconduct in public office offences and Data Protection Act offences. On 17 October 2005 a pre-trial hearing took place at Exeter Crown Court before the trial judge, His Honour Judge Darlow. The defence argued that the proceedings should be stayed for an abuse of process. Although not directly relevant to this abuse of process submission, the defence also contended that accessing the databases and the subsequent passing of information obtained to insurance companies was not that serious and that unlawfully accessing the PNC could not amount to the criminal offence of misconduct in public office.3 The prosecution argued that the unlawful disclosure of the information was serious, irrespective of the use to which the data was intended to be put. On 19 October 2005 the judge gave judgment on the issues raised. He roundly rejected the defence submission that the proceedings should be stayed for an abuse of process. However, he also expressed the provisional view, not central to his principal conclusion in relation to the application of which he was formally seized, that the act of a police officer accessing the PNC and providing the information to a former colleague might not in the circumstances of this particular case amount to misconduct in public office, and in any event the matter was not terribly serious.
1.6
1.7
1.8
1.9
1.10
p13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-T-ACC-RussellMiddleton.pdf
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Chapter 2 | Police Investigations Start
1.11
In any event, following the judges comments, a number of case conferences took place with the CPS and prosecution counsel. With the judges comments in mind it was decided not to proceed on the basis that it would not be in the public interest given the potential costs that would be incurred. In short, DCS Middleton confirmed in evidence that a fair summary of the position was that the judge caused the CPS to ask itself, do we want to spend all this time on a trial if the judge is of the view either (a) that the facts may not make out an offence, or (b) that if they did, it is not a terribly serious matter.4 I do not comment on the judges expression of opinion (also reflected in the sentences which had been passed in relation to Operation Glade discussed below). I do, however, add that whatever might have been the position considered by the judge and, in consequence, by the CPS in 2005 should not be assumed to represent a current assessment of whether conduct of that type constitutes misconduct in public office or the gravity of such conduct. In evidence, DCS Middleton was asked why journalists were not within the scope of Operation Reproof. He answered:5 I think I need to make clear that they werent out of scope. The whole inquiry right from the outset was extremely open, an open-minded approach as to what we would discover. The initial information, as we said, linked pretty much specifically to a local investigation, detective private investigation agency in Devon and the flow of information was from the police officer and the other staff Ive mentioned through to that private investigator, up one or two more chains, and we were tracking customers each and every occasion, open-minded as to who those customers would be, and we never found any direct evidence or indirect evidence linking that information being requested by or for any part of the media or journalists.
1.12
1.13
In his witness statement, DCS Middleton said that:6 There was no direct evidence found during the course of the investigation that any media organisation was in any way involved in the obtaining of illicit information being investigated
1.14
In evidence he was asked whether there was any indirect or inferential evidence that a media organisation was involved. DCS Middleton responded:7 As Ive said right from the outset, the mindset of myself as the senior investigating officer and my team, who were thoroughly professional throughout, was we were open-minded as to what we would find and we would have dealt with that and pursued that based on information or evidence that we had. We deal with information, intelligence and evidence. The CPS were working alongside us, as were the Police Complaints Authority. We did not have anything that directly or indirectly linked to journalists. Had we done so, wed have thoroughly investigated that.
2. Operation Glade
2.1
4
Operation Glade is an example of a police investigation which, on the face of it, may be thought to demonstrate partiality or favour to journalists which, it is argued, has been rendered
p86, lines 1-9, Lord Justice Leveson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-9-May-2012.pdf 5 pp77-78, lines 15-3, DCI Middleton, ibid 6 p9, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-T-ACC-RussellMiddleton.pdf 7 pp79-80, lines 24-9, DCI Middleton, ibid,
253
more credible in the light of the evidence that has emerged about the relationship between the press and the MPS generally or with certain senior officers in particular. Although self contained, therefore, it is important to deal with the possible perception. 2.2 Operation Motorman8 was commenced because an audit by Devon and Cornwall Police had identified that Paul Marshall, a civilian member of the police staff at Tooting police station, had been accessing the PNC and obtaining information for Steve Whittamore, a private investigator. A search warrant (executed with the Information Commissioners investigators present) at the latters premises demonstrated that he was involved in obtaining details of an individuals criminal history by way of a check through the Criminal Records Office (CRO) or details of his or her address by way of a check on the registered keeper of a vehicle. A large number of such checks were on behalf of the national press, where the information subsequently appeared. As we have seen above, Devon and Cornwall Police had also searched the premises of the data gathering company, Data Research Ltd; this was the corporate alter ego of Mr John Boyall. Evidence was obtained that indicated he was involved in the same types of activity as Mr Whittamore. The evidence relating to Data Research Ltd was referred to the MPS, which first carried out a scoping exercise in order to decide whether the matter should formally be investigated. The investigation (Operation Glade), began in August 2003 with Detective Chief Inspector Mick Allen appointed as the Senior Investigating Officer and DCI Brendan Gilmour (then Detective Inspector Gilmour) as the Investigating Officer. During the course of his evidence DCI Gilmour recognised that, when scoping the investigation, he and his colleagues were alive to the sensitivity of investigating journalists but said that he could not recall specific discussions about the issue. He expressly disavowed that the investigators were in fear of the press: 9 Well, considering the work that we were doing, investigating corrupt police employees, police officers and members of civilian staff, investigating journalists didnt present any fear. There wasnt any fear involved at all. But we did recognise the significance of what we were doing and the attention that that would attract and that would obviously shape how we approached that, but it certainly wouldnt have stopped us doing it and there was no trepidation around it. 2.5 2.6 He also denied fearing a backlash from the press.10 DCI Gilmour was asked whether the resource implications of taking on journalists and powerful newspapers, who would have access to sophisticated legal advice, were a factor in their decision-making. His response was that such considerations would not have stopped the investigating team from doing what it needed to do.11 The terms of reference of Operation Glade were ultimately set down as follows: 12 To investigate (covertly) at this time the allegations against Marshall in order to prove or disprove his involvement in the offences alleged. The parameter of the investigation at this time will include Marshall himself, John Boyall and possibly
Discussed at length in Part E, Chapter 3 p48, lines 6-15, DCI Gilmour, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-9-May-2012.pdf 10 p58, lines 17-24, DCI Gilmour, ibid 11 p48, lines 16-21, DCI Gilmour, ibid 12 p52, lines 4-18, DCI Gilmour, ibid
9 8
2.3
E
2.4
2.7
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Chapter 2 | Police Investigations Start
Stephen Whittamore. There appears to be clear evidence that Marshall is conducting illegal PNC or CRO checks on behalf of John Boyall at the request of a number of reporters. The aim of the investigation will be to gather evidence of Marshall, Boyall and Whittamores involvement in the misuse of the PNC or CRO systems with a view to prosecuting them for any offences disclosed or to prevent further misuse. Early consultation will take place with the CPS regarding appropriate charges should sufficient evidence be obtained. 2.8 It is noteworthy that the terms of reference did not expressly encompass investigating the journalists who had received the information. In the event, however, it became clear that DCI Gilmour did not consider that this limited the extent of the investigation or prevented the investigators from turning their attention to those journalists at the appropriate time. Through analysis of telephone data relating to Mr Marshall, the Operation Glade investigators established that a retired police sergeant, Alan King, had been acting as the conduit between Mr Marshall on the one hand and Mr Boyall and Mr Whittamore on the other. There was no evidence that any other police personnel were involved. On 10 November 2003, Mr King was arrested. Meanwhile, from the very detailed ledgers of Mr Whittamores business, the investigators found invoices to journalists setting out what information was sought and his fee for obtaining that information. Contrary to the approach adopted in relation to Mr King, on or around 16 January 2004 DCI Gilmour decided to interview the journalists identified in the ledgers under caution (and therefore as suspects) but also decided, as an operational matter, not to arrest them, but to invite them to attend voluntarily for interview. The difference in approach was explained on the basis that DCI Gilmour was confident that the attendance of the journalists could be secured voluntarily, whereas the same was not so in relation to Mr King. He said:13 The default isnt always to arrest in the first instance. My consideration then were what is it that I was hoping to achieve and what I wanted to achieve was to interview the journalists under caution. I, through the legal departments of the various newspapers, was able to access and secure the attendance of the journalists, and that was relatively straightforward, I think, without any complication. Whereas King, I didnt have that access to King and it was necessaryto secure his attendance at the police station for investigation interview by arresting himfor every suspect, its a consideration as to whether or not they need to be arrested in order to achieve what it is you want to achieve. 2.12 He also explained it was not necessary to arrest the journalists because, given the evidence in the ledgers that the journalists had requested the information, there was no need to carry out searches of the journalists premises (arrest carries with it certain powers of search under the Police and Criminal Evidence Act 1984).14 It is not without interest that this approach was not adopted in relation to Clive Goodman during the course of Operation Caryatid and neither is it necessarily accurate: in any case which is dependent on circumstantial evidence, whatever documentary evidence can be found is always likely to add weight (or detract) from the strength of the case. Having said that, however, the legitimacy of different approaches by different officers must be accepted and there is no evidence or basis for suggesting an ulterior motive.
2.9
2.10
2.11
13 14
p52, lines 4-18, DCI Gilmour, ibid p63, lines 3-13, DCI Gilmour, ibid
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2.13
Between 19 January 2004 and 31 January 2004, the police interviewed seven journalists under caution. As anticipated each attended voluntarily and was legally represented. All the journalists admitted that they had used Mr Whittamore to obtain information but each denied knowing that the information was being obtained unlawfully. DCI Gilmour said that a number of the journalists gave the account that they believed that the information was coming from the courts and that CRO stood for Court Record Office. DCI Gilmour made it clear that it was put to them in interview that they must have known that Mr Whittamore was not obtaining the information from a court office because of the speed of turnaround of the requests, sometimes a matter of hours. However, each adhered to the line and claimed that he would not have used Mr Whittamore or any agency had it been known that the information was being obtained unlawfully. DCI Gilmour said that it was specifically put to them that, by their very nature, details of convictions must have been obtained unlawfully. The journalists simply pleaded ignorance. The police sought the advice of the CPS as to the likelihood of successfully prosecuting all the suspects, including the journalists, and as to the appropriate charges. The CPS advised that Messrs Marshall, King, Boyall and Whittamore should be charged with conspiracy to commit misconduct in public office. As regards the journalists, the CPS advised that there was insufficient evidence to charge anyone because it was unlikely to be proved that there was the requisite degree of knowledge that the information was being unlawfully obtained. DCI Gilmour explained his disappointment at the view of the CPS that they could not prove the necessary guilty knowledge.15 The Inquiry has not investigated the reasons for this conclusion (which some may argue appears overcautious): the relationship between the CPS and the press has not been the subject of investigation. What can be said with certainty, however, is that this material does not provide any evidence that the failure to prosecute any of the journalists was influenced or motivated by any fear of the press on the part of the police, or by any improperly close relationship.16 Messrs Marshall and King pleaded guilty to the conspiracy charges. A count of obtaining personal information contrary to s55(1)(a) of the Data Protection Act 1998 was later added to the indictment against Messrs Boyall and Whittamore. They pleaded guilty to that offence and the conspiracy charge was left to lie on the file. In April 2005 all four defendants were given conditional discharges and further details, including the judges sentencing remarks, are in Chapter 3 below. DCI Gilmour made it clear that these sentences were a disappointment for the police. In May 2005, the CPS sought counsels advice as to the merits of a reference under s36 of the Criminal Justice Act 1998 to the Court of Appeal to challenge the sentences on the ground that they were unduly lenient. DCI Gilmour explained that for a number of legal reasons, on which he was not able to elaborate, counsel advised against this course of action. The comment made in paragraph 1.11 above about current perceptions of the gravity of this type of conduct is repeated.
2.14 2.15
2.16
2.17
15 16
p69, lines 1-2, DCI Gilmour, ibid For my part, it seems remarkable that notwithstanding all that has been written about criminal records over the years, the journalists all misunderstood the meaning of the acronym CRO or believed that a search of court records could have been accomplished within the time of the response. That said, I am not suggesting that the advice of the CPS, on which the police were bound to act, was based on anything other than an objective and independent minded assessment of the strength of the evidence. The Inquiry has gone no further than this summary identifies; its value is simply as part of the history of attempts to use the criminal law in this area.
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chapTEr 3 opEraTion moTorman

1. Introduction
1.1 The information arising from Operation Reproof caused the Office of the Information Commissioner (ICO) to focus attention on Steve Whittamore. As a result, on 8 March 2003, a team of investigators led by Alexander Owens from the ICO, and alongside police officers from Operation Reproof, searched the premises of the private detective agency run by Mr Whittamore. They seized a significant volume of documentation detailing an extensive trade in personal information. Mr Owens and his team then undertook a comprehensive analysis of the seized material and observed a clear audit trail between the requests, supply and payment for personal information relating to a range of subjects. The customers requesting and being supplied with personal information included a significant number of journalists, employed by a range of newspaper and magazine titles. Ultimately, the implications of this material were of sufficient significance that the ICO was prompted to lay before Parliament two reports setting out a summary of the evidence obtained as part of the investigation: What Price Privacy? and What Price Privacy Now? The reports also called for stricter penalties for those engaged in unlawful activities, in particular for breach of s55 of the Data Protection Act 1998 (DPA). This provision makes it an offence to obtain, disclose or procure the disclosure of confidential personal information, knowingly or recklessly, without the consent of the organisation holding the data.1 This chapter explores the essential narrative surrounding this investigation and the evidence obtained during Operation Motorman.
1.2
2. The genesis of Operation Motorman

2.1 On 11 November 2002, during the course of the search of the premises of Data Research Ltd, as part of Operation Reproof, Mr Owens observed documents containing lists of Vehicle Registration Marks (VRMs) that appeared to have been checked for vehicle owners personal details.2 The documents recorded the owners details alongside the VRMs and also contained times and dates when the searches had been carried out. Mr Owens contacted the Driver and Vehicle Licensing Agency (DVLA) with a number of the listed VRMs and the DVLA confirmed that all the numbers has been searched through the DVLA records by the same employee. Mr Owens also confirmed that the times and dates recorded on the seized documents corresponded with the times and dates when the DVLA records had been checked.3 In the light of these facts, Mr Owens formed the view that a source within DVLA had been supplying information on request to the detective agency.4 Further examination of the documents seized revealed that several hundreds of VRMs had been checked by the detective agency, and the results sold on to a number of companies and individuals.5
Appendix 4 sets out a detailed analysis of section 55 Operation Reproof is considered in detail at Part E, Chapter 2 3 p16, lines 12-18, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-30-November-2011.pdf 4 p3, para 3.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-AlexanderOwens1.pdf 5 p4, para 3.5, ibid
2
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2.2
These discoveries led to two investigations. The ICO commenced Operation Motorman to investigate data protection offences and, in particular, to identify the customers of the agency who had commissioned the supply of information and the reasons why personal information of this nature had been sought.6 Thereafter, the Metropolitan Police Service (MPS) commenced Operation Glade to identify potential corruption by police officers or civilian police employees.7 On closer examination of the documents seized from the premises of Data Research, Mr Owens observed that one of the VRM checks had been made against a protected number. Having previously served as a Special Branch police officer, Mr Owens appreciated that a protected number was likely to signify a vehicle owned by a sensitive individual or an undercover police vehicle. This was confirmed by the MPS and Mr Owens identified Mr Whittamore and his company, JJ Services, as having sought the information in relation to this vehicle. As a result of this, Mr Owens explained, Stephen Whittamore immediately went to number 1 on [his] investigation list to be visited and interviewed.8 The ICO identified Mr Whittamore as a private detective running a business from his home address and, as has been explained above, on Saturday 8 March 2003, five ICO investigators searched Mr Whittamores premises pursuant to a search warrant issued under Schedule 9 of the DPA.9
2.3
3. The search
3.1 A significant volume of documentation was seized during the search of Mr Whittamores premises. This included reports, workbooks, ledgers, invoices and in particular four hardback coloured notebooks which have become known as the Blue book, Red book, Green book and Yellow book. These notebooks represented all the work that Mr Whittamore had done, and set out precise dealings between Mr Whittamore and his customers, including a number of journalists. The workbooks documented who had requested the personal information (both in terms of the newspaper concerned and the commissioning journalist), what information had been requested and supplied, how much had been charged for obtaining the information and how much was paid to associates who assisted in the supply of the information.10 Invoices and remittance advices demonstrated the payments made by newspaper groups and how much money had been paid for each transaction.11 As Mr Owens explained in his evidence, he was able to demonstrate a paper trail from identified journalists working for named newspaper groups, requesting information be obtained, through to the subsequent activities of the private investigators using sources or blaggers to obtain the information.12 Mr Owens, assisted by ICO Investigator Roy Pollitt, created a photo image of each of the documents and pages of the notebooks, and sent the documents to a forensic computer specialist to input the information into an electronic database, thus converting the contents of Mr Whittamores notebooks, invoices, remittance advices into an electronic format. On 30
3.2
Information Commissioners Office, What Price Privacy?, p15, para 5.1 Operation Glade is considered in detail at Part E, Chapter 2 8 p5, para 3.9, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-AlexanderOwens1.pdf 9 p18-19, lines 16-25, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Afternoon-Hearing-30-November-2011.pdf 10 Information Commissioners Office, What Price Privacy?, p15, para 5.2 11 p23, lines 12-22, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Afternoon-Hearing-30-November-2011.pdf; pp6-7, para 4.4, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Witness-Statement-of-Alexander-Owens1.pdf 12 pp6-7, para 4.4, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-AlexanderOwens1.pdf
7
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Chapter 3 | Operation Motorman
November 2011 Mr Owens made a copy of the electronic database available to the Inquiry. Its broad accuracy was confirmed when the ICO produced Mr Whittamores hardback coloured notebooks. 3.3 The highly confidential nature of the information contained within the database, and the need to protect the privacy of the subjects of the information requested, requires the confidentiality of the details of the database to be preserved and the subjects of the requests to remain anonymous. Similarly, the journalists who are identified by name in the database, but have not been interviewed or prosecuted by the ICO, have not been named during the course of the Inquiry. I heard submissions in private as to how to use this material and decided to make the database available to the Core Participants of the Inquiry, subject to confidentiality undertakings and on strict conditions. The purpose of making the material available was to permit Core Participants to evaluate their position in relation to this evidence. In due course it was conceded by all Core Participants that I could proceed on the basis that no positive case was to be mounted by them that the Motorman material did not reveal prima facie evidence of breaches by journalists of the DPA, and I have done so.13 It has not been suggested by any Core Participant that, if necessary, I cannot go further and reach my own conclusions based on the Motorman evidence as to the culture, practices and ethics of the press. During Mr Owens evidence, I observed that the records kept by Mr Whittamore, as illustrated in the database, contained, by reference to each request, the name of the newspaper group, the newspaper within that group, the journalists first and last names, the service requested, the name of the person retrieving the information (for example the blagger), the subject about whom the information was requested, the result of the search and various accompanying comments.14 These aspects of the evidence are now considered in some detail.
3.4
Volume of requests made to Mr Whittamore

3.5 Mr Owens expressed the view that the notebooks contained in the region of 17,000 entries, or requests for information from the press.15 These requests principally related to activities in the period between the end of 2000 and 8 March 2003 when the material was seized by the ICO; however the earliest entry was around 1997.16 Richard Thomas, the Information Commissioner at the time, gave evidence that the total number of requests was 13,343.17 This discrepancy is explained by their different approaches to multiple requests, and need not be resolved for present purposes. On any view, the figure involved is substantial, and demonstrates that Mr Whittamore was not simply engaged in obtaining the occasional exdirectory number, or in locating addresses on an infrequent basis, or in supplying personal information relating to simply a handful of individuals. Rather, he was engaged in a trade of
13
Care was taken over this issue which became the subject of some controversy during the hearing and was the subject of a ruling: see http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Operation-Motorman-andANL-10-July-2012.pdf. Associated Newspapers Ltd later confirmed that it did not advance a positive case contradicting the position that there exists prima facie evidence that journalists did act in breach of s55 by obtaining information which, prima facie, could not be justified in the public interest. That group thus fell into line with all other press core participants. 14 pp4-7, lines 20-15, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-5-December-2011.pdf 15 pp21, 27, lines 7-11, 18-19, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Transcript-of-Afternoon-Hearing-30-November-2011.pdf 16 p26, lines 16-19, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-5-December-2011.pdf 17 p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Second-Witness-Statement-ofRichard-Thomas-CBE1.pdf; p2, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJTExhibit-47.pdf
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personal information relating to hundreds of individual subjects, on an almost daily basis. The demand for this information from the press was constant.
Buyers/customers of information
3.6 It is important to acknowledge that the buyers or customers of the information were not, by any means, exclusively journalists. They included the media, insurance companies, lenders and creditors, parties involved in family disputes, criminals with what are likely to have been criminal or malicious intentions, including witness and juror intimidation, and estranged couples seeking details of their partners whereabouts.18 However, the number of journalists requesting personal information from Mr Whittamore (for whatever reason, whether justifiable or not) indicates that it was not an isolated incident, or a handful of individuals engaging in the practice. The Parliamentary Report, What Price Privacy Now?, identified 333 journalists as having been named in the Motorman documents, as set out in the table below. Mr Thomas witness statement identifies some 305 journalists as having been named in the Motorman material, and whilst, again, I note the discrepancy between the figures, nothing turns on this difference.19
E
3.7
Suppliers of information
The documents seized disclosed that the information was either obtained directly by Mr Whittamore, or through associates who would be paid to obtain the information through either blagging or paying a source. Mr Whittamore would commonly outsource work to associates in return for a payment, and add a premium to the value of the information sold to the end buyer.20 One example of a method used to obtain information is illustrated by BT ex-directory numbers. One of Mr Whittamores associates, Mr Jones, would ring BT or other phone companies, purporting to be an engineer; he would use a form of password which is given to BT employees (known as an EIN number) in order to identify himself as an engineer. Once he had obtained the information sought, he would telephone Mr Whittamore and pass on the relevant information. This modus operandi was elicited by Mr Owens from the relevant paperwork and by interviewing Mr Jones.21
Subjects of requests for information

3.8 Turning to the journalists, the information sought related, in part, to a number of well-known celebrities and other figures in the public-eye, but equally included individuals who were only remotely connected with public figures, and some who had no obvious newsworthiness at all; one, for example was a self-employed painter and decorator who had once worked for a lottery winner.22 In his evidence to the Inquiry Mr Owens confirmed that he had seen a reference to the Dowler family in the Operation Motorman material alongside a request for
18 19
Information Commissioners Office, What Price Privacy?, p5, para 1.8 p6, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Second-Witness-Statement-of-RichardThomas-CBE1.pdf 20 Information Commissioners Office, What Price Privacy?, p21, para 5.27 21 pp27-28, lines 14-19, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Morning-Hearing-5-December-2011.pdf 22 Information Commissioners Office, What Price Privacy?, p17, para 5.10
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an ex-directory telephone number.23 It also emerged in evidence that Mr Hugh Grant was amongst the celebrities whose personal information was sought by journalists.
Nature of information
3.9 The material seized evidenced the supply of a wide range of information including criminal record checks against the PNC, occupancy checks, voter searches, directors searches, VRM checks and vehicle owner details, ex-directory phone numbers, itemised telephone billing and mobile phone records, details of frequently dialled (friends and family) numbers, conversion of mobile telephone numbers into addresses and vice versa.24 I emphasise immediately that at least some of this information could have been obtained lawfully, but that is not the case for all the types of information sought. By way of example of the type of information requested, in the course of Mr Owens evidence the Inquiry heard that one entry related to a request for specific calls from a telephone number between 16:00hrs and 17:00hrs on a given date. The price for obtaining this type of information was 300-400. Mr Owens expressed the view that this information would be available on the subscribers telephone bill and this would only be available from the phone company.25 Another entry related to a request for a Phone bill for June 2011 for the price of 800.26 These examples demonstrate that whilst some requests were more general, such as seeking to identify where an individual lived, other requests were highly specific in their terms.
3.10
3.11
Methods of obtaining information

3.12 Within the types of information requested, varying methods were used to obtain the data. Thus, by its very nature, it appears clear that some types of information could only have been acquired from one possible source, for example the DVLA (VRM checks against owner details), the PNC (criminal record checks), or telephone companies (friends and family numbers). As Mr Owens explained in relation to friends and family numbers, theres no way you can get somebodys list of family and friends lawfully, unless you actually know them and whats on the list. The only way youll get them is from BT or whichever phone company.27 He further explained that criminal records checks could also not be obtained lawfully.28 Mr Thomas in his evidence also confirmed that the PNC, and the list of friends and family numbers, cannot be obtained from information in the public domain.29 Similarly, in relation to obtaining the vehicle owners details from the DVLA, this information could only be obtained lawfully in a number of specifically defined circumstances set out by law. The DVLA has two separate databases holding information: the vehicle register and the driver register. The DVLAs vehicle register holds information about each motor vehicle
3.13
23
p41, lines 4-7, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-30-November-2011.pdf 24 Information Commissioners Office, What Price Privacy?, p15, para 5.3 25 p8, lines 2-20, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-5-December-2011.pdf 26 p13, lines 5-8, ibid 27 p28, lines 4-15, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-30-November-2011.pdf 28 p28, lines 2-5, ibid 29 p99, lines 1-10, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-9-December-2011.pdf
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(e.g. registration mark, vehicle identification number, make/model, emissions, etc) and includes the name and address of the registered keeper, dates of acquisition and disposal, and the vehicles tax status. The driver register holds each drivers name, address, date of birth, photograph, endorsements, convictions and relevant medical information that may affect a persons ability to drive. The particulars from the register may be made available in a number of particular circumstances, for example to a police officer, or to a local authority to investigate an offence.30 It may also be made available to a person who has reasonable cause for seeking particulars, for example following involvement in an accident, enforcement of road traffic legislation or tax collection. It appears very unlikely that requests made to the DVLA for owners addresses to be supplied to journalists would fall within this category. 3.14 Putting it at its lowest, in respect of these types of information, namely VRMs checks against owner details, criminal record checks, or friends and family telephone numbers, I consider that the methods used to obtain this information by Mr Whittamore are highly likely to have been unlawful. It is right to observe that, in principle, other forms of information, for example addresses, or ex-directory numbers, may be obtained through lawful means. For example, one can conceive of a laborious check of the full electoral register to identify an address. Similarly, searching through former telephone directories to locate a number that may have been notified before it became ex-directory may be possible. However, as was explained in What Price Privacy?, in many instances the sums charged for such information, for example the obtaining of a personal address, appeared to be too low to suggest that extensive hours of research had been undertaken to obtain this information. Mr Thomas expressed the view that it was highly likely that ex-directory numbers were obtained illegally.31 News International drew Mr Thomas attention to the fact that there exist substantial databases of telephone numbers which may well have been obtained lawfully: one of the largest holds in the region of 50 million numbers, of which approximately 10 million may be inferred to be ex-directory.32 However, it does not seem likely that Mr Whittamore had access to such a database between 1997 and 2003, and the way in which he recorded the information that he obtained does not suggest great computer literacy on his part. Further, it is difficult to see why newspapers (which, presumably, could access certain databases themselves) would have paid so highly for his services had such databases been his source. Taking all this evidence into account, and applying basic common sense to it, the fairly obvious conclusion is that Mr Whittamore was obtaining the ex-directory numbers by unlawful means. The position is less clear cut in relation to the obtaining of addresses.
3.15
3.16
3.17
Public interest
3.18 In his evidence Mr Thomas acknowledged that there could, at least in theory, be cases where the public interest fully justified obtaining personal data (with the result that no offence would be committed); and he also recognised that there could be questions concerning proof of intention or recklessness. In relation to the public interest, he gave the example of seeking the weekend telephone number of a minister who had recently resigned in order to
Regulation 27 of the Road Vehicles (Registration and Licensing Regulations) 2002 p109, lines 1-9, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-9-December-2011.pdf 32 pp101-105, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf
31
30
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contact him with a proposed story; however, when he was pressed by Mr Rhodri Davies QC for News International, he said: But I have to say yet again, that was not typical, nothing like typical of the cases that we were seeing. And although you made the point that the majority of the cases were, in your language, only addresses or phone numbers, I would also say the vast majority were nothing to do with public interest considerations along the lines Ive just mentioned. 33 Mr Thomas expressed the opinion that the evidence obtained as part of Operation Motorman did not come near to being characterised as being in the public interest. He explained, I havent seen a whiff of public interest. It was tittle-tattle. It was fishing. There may be one or two examples, but they would be exceptional.34 I can add that no example of a search for the weekend telephone number of a recently resigned minister has been shown to me. 3.19 Given that no journalists were ever interviewed by the ICO in relation to Operation Motorman, the strength of any public interest defence is difficult to assess definitively and I do not propose to do so. However, it was suggested to the Inquiry by at least one press Core Participant that the newspaper required access to this data in order to be able to contact the subject of a story for his or her version of events; in other words, to facilitate the exercise of a right to reply. Expressed in these terms, a public interest defence has superficial attraction, but upon closer analysis its strength dissipates. In each case consideration needs to be given to the subject matter of the story which is proposed to be published. If the story has a potential freestanding public interest, then it is indeed arguable that, subject to a range of other factors, the journalist might need to contact the subject of the story for his or her account. But if, as Mr Thomas has suggested, there is not a whiff of public interest in the underlying story, it is not arguable that a public interest can be manufactured for the purposes of the defence under s55 of the DPA on the grounds that the subject needs to be contacted. In any event, regard must be paid to the nature of the information commonly being sought by journalists. Even assuming a journalist needed to contact the subject of a story, it is difficult to imagine why he or she should need to know the telephone details of the family and friends of the target. Even more difficult is to see the public interest in deceptively obtaining a criminal record check. In those circumstances, it is unlikely that a public interest defence under s55 of the DPA would have succeeded. Indeed, in only a small minority of the cases is it likely to have been even arguable.
3.20
Mental element
3.21 The case against a journalist instructing Mr Whittamore to obtain the relevant information is slightly different because, in order to establish guilt under s55, the prosecution would have to prove to the criminal standard that the journalist in question either knowingly or recklessly obtained or disclosed personal data or the information contained in personal data, s55(1)(a), or procured the disclosure to another person of the information contained in personal data, s55(1)(b). Again, the fact that no journalist was ever interviewed by the ICO renders difficult an assessment of whether this mental element could have been proved. It is, of course, possible to draw certain inferences from the available material. That material includes, in particular, the type of data sought and obtained, the speed with which it was obtained, the amount of money paid for the information in question, and the sheer quantity of requests. There is certainly enough here to indicate prima facie (if not at a higher level) that many journalists either knew precisely how the information was being obtained or turned a
3.22
33 34
p107, lines 3-9, Richard Thomas, ibid p65, lines 4-10, Richard Thomas, ibid
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Nelsonian eye to the obvious, or the close to obvious (with the result that there were, at least, reasonable prospects of proving recklessness). In that regard, I do no more than accept the concession that the press Core Participants made to that effect. It is not possible to go further than that, and (notwithstanding that the names of the journalists have not entered the public domain) it would be unfair to do so.
4. Prosecutions arising from Operation Motorman

4.1 The Information Commissioner formed the view that the material obtained during the course of Operation Motorman was of sufficient quality and quantity to bring criminal proceedings against the private detective Mr Whittamore and his associates involved in the blagging and obtaining of personal information. However, the evidence obtained by the ICO overlapped to some extent with the material obtained by the MPS and therefore the prosecutions led by the CPS in relation to the offences of corruption and conspiracy were given priority, being offences of a more serious nature.35 The evidence discovered by the MPS had highlighted the unauthorised supply of information from the PNC by a civilian police employee, and the CPS charged four individuals; namely Steve Whittamore, John Boyall, Alan King and Paul Marshall with corruption offences. 19 incidents were covered by the indictment, 12 in respect of Criminal Record Office offences and seven in relation to vehicle checks from the PNC. Two of the accused pleaded guilty to the corruption charges. On 6 April 2005, the Crown amended the indictment to include two offences under the DPA. Mr Whittamore and Mr Boyall pleaded guilty to offences under s55 of the DPA.36 On 15 April 2005, His Honour Judge Samuels QC, sitting at Blackfriars Crown Court, sentenced the four defendants. HHJ Samuels QC stated that: the vice of the primary conspiracy was to make known to the press information which on any view ought to have been confidential, and was bound at its lowest to cause immense embarrassment to members of the public who required the state to maintain confidentiality in their affairs.37 However, the judge considered himself circumscribed by two factors. First, Paul Marshall had already been given a conditional discharge at an earlier trial in respect of unrelated offences, his mitigation being that he was seriously ill; in the courts view, Mr Marshall could not now be given a higher sentence for a less serious offence, and his co-defendants could not be treated less leniently either. Second, the personal circumstances of each of the defendants (as argued before the judge) meant that the court considered that it could not impose a fine. Consequently, each defendant received a conditional discharge. Separate proceedings under s55 of the DPA had been commenced by the ICO against Mr Whittamore and five other private investigators. However, the proceedings were withdrawn when the CPS prosecutions resulted in a sentence of a conditional discharge.38 The reasons for the discontinuance of the prosecutions are identified in the report What Price Privacy?; namely that the ICO was disappointed at the sentences imposed by the court and considered that it was not in the public interest to proceed with the ICOs own prosecutions in these
4.2
4.3
4.4
35
pp4-5, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/First-Witness-Statement-ofRichard-Thomas-CBE.pdf 36 pp19-20, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-RJT-49.pdf 37 p18, ibid 38 pp4-5, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Second-Witness-Statement-ofRichard-Thomas-CBE1.pdf
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circumstances.39 Given that the maximum sentence for a breach of s55 was a financial penalty, it cannot be said that this decision was unrealistic.
5. Publication of Parliamentary Reports in 2006

5.1 In 2006 the then Information Commissioner, Mr Thomas, published two Parliamentary reports documenting the widespread trade in confidential personal information.40 The report What Price Privacy? The unlawful trade in confidential personal information was published on 13 May 2006 and the follow-up report What Price Privacy Now? was published on 13 December 2006.
What Price Privacy?

5.2 The Parliamentary Report published in May 2006 was not the first occasion on which the issue of the unlawful trade in personal information had been debated or discussed in public. What Price Privacy? identified three newspaper articles in The Guardian, The Sunday Telegraph and The Times, written in the period between September 2002 and January 2003, which related to the obtaining of confidential information by private detectives and the sale of confidential information from government departments, namely the Inland Revenue, to outside agencies.41 The report also noted that the House of Commons Select Committee on Culture, Media and Sport had conducted an investigation in early 2003 into privacy and media intrusion and concluded in its reports that improper and intrusive gathering of data had appeared in the press and that these methods amounted to a depressing catalogue of deplorable practices.42 The first report laid before Parliament claimed to reveal evidence of systematic breaches of privacy that amounted to an unlawful trade of confidential personal information. The purpose of the report was to put a stop to the trade by proposing the introduction of a custodial sentence for up to two years for persons convicted on indictment, or six months for summary convictions.43 Section 5 of What Price Privacy? set out the evidence collated by the ICO which illustrated the market in the unlawful supply of personal data. The report explained that: documents seized during Operation Motorman and in other investigations have allowed the ICO to build up a clear picture of how the market in unlawful personal data operates. Case details provided evidence of who is buying the information and why, and who is obtaining and supplying the information. We also have some idea of how the suppliers operate and the prices they charge. 44 The report analysed the information seized at Mr Whittamores premises as falling into two categories of documentation. The primary documentation consisted of correspondence (reports, invoices, settlements of bills) between Mr Whittamore and many national newspapers and magazines, identifying the individual journalist seeking the information. The
5.3
5.4
5.5
Information Commissioners Office, What Price Privacy?, p27, paras 6.7-6.8 These reports were laid pursuant to s52(2) of the DPA. pp20-21, lines 12-3, Richard Thomas, http://www. levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-9-December-2011.pdf 41 Information Commissioners Office, What Price Privacy?, p14, para 4.10 42 pp13-14, paras 4.7-4.11, ibid; see also Culture, Media and Sport Select Committee, Fifth Report, Privacy and Media Intrusion, HC, 458 1, 16 June 2003. 43 Information Commissioners Office, What Price Privacy?, p4, para 1.2 44 p16, para 5.4, ibid
40
39
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secondary documentation consisted of the detectives own handwritten personal notes and a record of work carried out, about whom and for whom. 5.6 In relation to methods, the report set out that there were two principal methods of obtaining information: corruption and deception.45 Corrupt practices included paying employees of organisations, for example the DVLA, to access information available to them by virtue of their position, whilst deceptive practices included impersonating either the data subject or a third party (for example an employee of the same organisation) to obtain the information.46 The report also identified in broad terms a number of individuals who had been interviewed as part of the investigation, including celebrities, professional footballers and managers, broadcasters, a member of the Royal Household and also figures of less obvious public interest, including the sister of a partner of a local politician. The report set out the example of a mother whose show-business daughter had featured in a number of press stories. Details of the mothers telephone calls and cars owned appeared in Mr Whittamores ledgers and records of financial transactions. Further, a number of those interviewed reported media intrusion after personal information had been passed to the press and all were confident that they had not willingly supplied the information nor consented to its release.47 Another aspect of the transactions that was analysed in the report was the issue of cost; that is to say how much the ultimate customers were charged for personal information and how much of this was profit once the agent sourcing the information had been paid. The prices charged to journalists ranged from 17.50 for finding an address for a person on the electoral roll, to about 70 to search for an ex-directory number, and up to 500 for a criminal record check and 750 to obtain mobile account details.48 It seems likely that the figures reflected the mode of obtaining the information sought, in particular where other parties, for example blaggers, or employees, required payment for their role in the provision of the information. The total sum paid by newspapers for the items of information supplied in Operation Motorman is estimated to be between 300,435 and 547,160.49 This gives an indication that the supply of personal information was, for those involved, a lucrative business. In the conclusion of the report, the ICO made a number of extremely pertinent observations: At a time when senior members of the press were publicly congratulating themselves for having raised journalistic standards across the industry, many newspapers were continuing to subscribe to an undercover economy devoted to obtaining a wealth of personal information forbidden to them by law. One remarkable fact is how well documented this underworld turned out to be.50 ....The law relating to this offence is perfectly clear... it is framed in a way that applies to those who request the disclosure of personal data and those who supply it, including any intermediaries in the chain. The problem lies in the inadequacy of the penalties which the courts are able to impose.51
5.7
5.8
5.9
5.10
p5, paras 1.10-1.11, ibid p22, para 5.30, ibid 47 p17, paras 5.9-5.11, ibid 48 p24, para 5.35, ibid 49 p2, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Second-Witness-Statement-of-RichardThomas-CBE1.pdf 50 Information Commissioners Office, What Price Privacy?, p28, para 7.2 51 p28, para 7.5, ibid
46
45
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5.11
The ICO sought custodial sentences in relation to the commission of offences under s55 DPA in order to deter this unlawful trade in information. The ways in which the ICO sought to achieve that end are dealt with in Part H of the Report.
What Price Privacy Now?

5.12 The Parliamentary Report What Price Privacy Now? was published to chart the progress in the six months following the first report and to set out the responses to the recommendations set out in the first report. The report noted that a Freedom of Information Act request for further information about the 305 journalists identified in the Motorman material and referred to in What Price Privacy? had been considered and, on the basis that disclosure of the information was in the public interest, the employers of the journalists were set out in tabular form. This table is replicated below.52 Table E3.1 Publication Daily Mail Sunday People Daily Mirror Mail on Sunday News of the World Sunday Mirror Best Magazine Evening Standard The Observer Daily Sport The People Daily Express Weekend Magazine (Daily Mail) Sunday Express The Sun Closer Magazine Sunday Sport
Night and Day (Mail on Sunday) Sunday Business News Daily Record Saturday (Express) Sunday Mirror Magazine Real Magazine
52
5.13
5.14
No. of Transactions positively identified 952 802 681 266 228 143 134 130 103 62 37 36 30 29 24 22 15
9 8 7 7 6 4
No. of Journalists or Clients using services 58 50 45 33 23 25 20 1 4 4 19 7 4 8 4 5 1

2 1 2 1 1 1
Information Commissioners Office, What Price Privacy Now?, p9
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Publication
Womans Own The Sunday Times Daily Mirror Magazine Mail in Ireland Daily Star The Times Marie Claire Personal Magazine Sunday World
No. of Transactions positively identified

4 4 3 3 2 2 2 1 1
No. of Journalists or Clients using services

2 1 2 1 4 1 1 1 1
5.15
The table sets out a breakdown of the extent to which individual newspapers and magazines were implicated in the evidence produced by Operation Motorman and, in particular, the number of journalists employed by each newspaper or magazine which was identified as having requested the supply of personal information. It is worth underlining the view of the Information Commissioner, as set out in the text of What Price Privacy Now?, that the figures in the table do not purport to set out the total number of offences committed by journalists, but rather the number of requests made by journalists for information. In his evidence to the Inquiry, Mr Thomas emphasised that it was not being said that every single transaction identified was an offence committed by a journalist, but rather that journalists were significant customers of information which appeared to have been obtained illegally.53 However, Mr Thomas also expressed the view that it was likely that journalists were committing an offence.54 Two overriding observations can be made in relation to these figures. First, whilst the journalists engaged in buying personal information supplied through a private investigator were employed by a range of titles, including tabloid newspapers, broadsheet newspapers and magazines, there is significant variation in the extent to which journalists and titles engaged in the purchase of personal information from Mr Whittamore. For example, 58 journalists from the Daily Mail sought the supply of personal information on 952 occasions, whereas by contrast one journalist from The Sunday Times sought the supply of personal information on four occasions. Second, the numbers of individual journalists engaged in purchasing personal information from particular titles is higher than could be put down to certain individuals undertaking investigations which might or might not have been known about or authorised. Where dozens, or in some cases, over 50 journalists at a particular title have sought to purchase personal information, the inference that these practices were endemic within particular titles may be readily understood.
5.16
5.17
6. Conclusions
6.1 For the purposes of responding to a request by Lord Ashcroft under the Freedom of Information Act 2000, ICO investigation officers and an in-house lawyer analysed the source material collated as part of Operation Motorman. They documented some 13,343 transactions, or individual requests for information made of Mr Whittamore. These transactions were
53
p91, lines 11-18, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-9-December-2011.pdf 54 pp91, 93, lines 11-18, 9-18, Richard Thomas, ibid
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segregated by staff of the ICO into three separate categories in terms of their evidential value.55 Of these, the ICO took the view that some 5,025 were actively investigated as part of Operation Motorman and positively known to constitute a breach of the DPA. More specifically, and put somewhat more carefully, it was the view of a lawyer employed by the ICO with extensive involvement in the prosecutions that the evidence in these cases would have been sufficient to lead to conviction.56 A number of the requests in this category included PNC requests, friends and family requests and some ex-directory requests.57 6.2 A further 6,330 requests represented occupancy searches and are thought to have been information obtained from telephone service providers. The ICO considered that the obtaining of this information was likely to amount to breaches of the DPA; however, the nature of the transactions was not sufficiently known or understood for these to be characterised as a positive breach of the DPA, rather than probably illicit transactions.58 Some 1,988 of the transactions were considered to lack sufficient identification or understanding of how the information had been obtained to determine whether they represented illicit transactions. The first category of transactions only was included with the Parliamentary Reports.59 Overall, it is not surprising that the Core Participants made the concessions recorded under paragraph 3.3 above: a detailed examination of many individual examples would, in my judgment, undeniably have established that this was the very lowest at which it could be put. For reasons which I well understand, the ICO would argue that the concession does not go far enough. Without condemning any journalist (none of whom were ever even interviewed by the ICO), it is sufficient for me to conclude that, at least in part, what has been revealed by some of the Operation Motorman evidence demonstrates an attitude to compliance with the law relating to data protection which can only be described as cavalier, if not worse: it is certainly revealing of what, at that time at least, were the practices of parts of the press. As will become apparent, the extent to which Mr Whittamores services continued to be used by some titles after his conviction is even more revealing.
6.3
pp1-2, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fifth-Witness-Statement-of-RichardThomas-CBE.pdf 56 pp86-89, lines 22-11, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Morning-Hearing-9-December-2011.pdf. Mr Thomas used the words mount a conviction: this is the only interpretation that can be put on that phrase 57 p89, lines 12-20, Richard Thomas, ibid 58 pp89-90, lines 22-5, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-9-December-2011.pdf 59 p2, para 9, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fifth-Witness-Statement-of-RichardThomas-CBE.pdf
55
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Chapter 4 phone haCking: the expanding impaCt of operation Caryatid

1. Introduction
1.1 This Inquiry was ultimately directed because of the wide scale public revulsion at the reported conduct of one or more journalists from the News of the World (NoTW) in intercepting messages left on the mobile telephone of Milly Dowler: this type of interception has been referred to colloquially as phone hacking. Having said that, however, there was also increasing public concern about the apparent lack of appropriate investigation by the Metropolitan Police Service (MPS) into the conduct of a private investigator, Glenn Mulcaire, and the extent of the involvement of the NoTW (precipitated by increasing disclosure arising out of civil litigation). The consequence (prior to the disclosures about Milly Dowler) was that the then Acting Commissioner, Tim Godwin, had re-opened the investigation into the NoTW which had started in 2006; substantial resources were devoted to it. Not the least important reason for this concern was the increasingly vocal allegation that the relationship between senior executives at the NoTW and senior officers at the MPS had influenced or affected the direction of the investigation; the allegation itself had the potential to cause serious damage to the reputation of the police generally. It is therefore not surprising that the Terms of Reference for Part 1 of the Inquiry specifically require it to consider the culture, practices and ethics of the press including contacts with, and the relationship between, the press and the police along with the conduct of each. They also require recommendations as to how future concerns about press behaviour should be dealt with by all the relevant authorities, including the police, the prosecuting and regulatory authorities and Parliament. This part of the Report, therefore deals with a wide range of issues including, in relation to Operation Caryatid: (a) whether the nature of the relationship between the police and the media explains why the police did not pursue journalists other than Clive Goodman in 2006 and why the investigation was not re-opened following expressed concerns in 2009 and 2010; the nature and extent of any relationship between News International (NI) and senior officers who were or became involved in this operation and the extent (if at all) to which any relationship influenced directly or indirectly the way in which operational decisions were approached; in the event that investigating officers or those with an operational role in connection with the investigation did not themselves have any relevant relationship, whether knowledge or understanding of the existence of such a relationship between NI and their superiors was taken into account when they approached decisions; and; in order to make recommendations as to the future, the approach and response to the investigation of the Crown Prosecution Service (CPS) and the prosecuting authorities more generally.
1.2
1.3
(b)
(c)
(d)
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Chapter 4 | Phone Hacking: The Expanding Impact of Operation Caryatid
1.4
On the other side of the same investigation, it is also necessary to consider (as part of the culture, practices and ethics of the press) the response to the police investigation of NI, the Press Complaints Commission (PCC), and the Culture, Media and Sports Committee and the Home Affairs Committee of the House of Commons. The part played by the PCC also deserves detailed consideration in the context of a consideration of the effectiveness of any new regulatory regime. Given the pivotal role that Operation Caryatid has played in the background that has given rise to this Inquiry and the focus, in part, on criticisms of the MPS for what is perceived to be its failure properly to investigate what emerged from this investigation, it is necessary to set out precisely what happened in some detail, evaluating decisions that were made as they were made and in the light of the prevailing circumstances. That is because I must address the allegation that the MPS deliberately held back on a full investigation (and further investigation in 2009 and 2010) because of a link with NI. In my ruling of 4 May 2012 in relation to the operation of rule 13 of the Inquiry Rules 2006 to the MPS, I said1: If not because of the influence of the press, why did the police not go further with Operation Caryatid or investigate the Mulcaire notebook in more detail (particularly as a number of officers were concerned that it more than justified further examination)? Why was it that the articles in The Guardian and the New York Times were so quickly dismissed without further investigation being undertaken? In my judgment, answering those questions would be a critical part of the exercise both to assuage the legitimate public concern that caused the conduct of the police to be included in the Inquiry in the first place but also to justify any conclusions that I reach as to future conduct of the relationship between press and police.
1.5
1.6
I concluded that answering these questions could give rise to criticism and I decided to approach the MPS, individual police officers, the CPS and counsel on that basis. Given that the statements of a number of police officers used for the Inquiry were those prepared for other proceedings, therefore, it is not surprising that, in response to notices under rule 13, additional material has been forthcoming. I have dealt with it in the Report and directed that additional statements, establishing the facts put before me, should be provided and treated as part of the evidence of the Inquiry. Where new issues have arisen, I have identified them but, in fairness, declined to determine any such issue adverse to any individual: to do otherwise would have been to require further rule 13 notices if not further oral hearings.
The complaint
1.7 In December 2005, the Royal Household reported to the Royalty Protection Department of the MPS that it was concerned that the voicemail messages of Jamie Lowther-Pinkerton and Helen Asprey, respectively the private and personal secretaries to Princes William and Harry, were the subject of unlawful interception. Information had been appearing in the press, in particular in the column of Clive Goodman, the Royal editor at the NoTW, which suggested knowledge of the content of voicemail messages left on their mobile phones. The Head of the Royalty Protection Department, Commander Loughborough, approached Deputy Assistant Commissioner (Specialist Operations) Peter Clarke (now retired) who was the head of the anti-terrorism branch of the MPS (then known as SO13). Given the potential threat to the safety of members of the Royal Family and the sensitivities surrounding them, Mr Clarke decided that SO13 would investigate the matter and would do so covertly (in
1.8
para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Application-of-Rule-13-of-the-InquiryRules-in-relation-to-the-MPS-4-May-2012.pdf
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PART E | Crossing Legal Boundaries: the Criminal and Civil Law
order to avoid alerting potential suspects).2 Mr Clarke sought to safeguard the secrecy of the investigation by ensuring only very few officers were aware of it. He explained that the need for operational security was one of the factors that weighed in his mind when deciding to keep the investigation within SO13,3 where the investigators were developed vetted. 1.9 Given the code name Operation Caryatid, Mr Clarke had ultimate operational oversight of the investigation. He set its parameters and strategy4 and was answerable to the Assistant Commissioner (Specialist Operations), Andy Hayman. Mr Hayman has described himself as accountable for the investigation but not responsible for day-to-day decision-making,5 nor personally involved in formulating strategy.6 He received briefings from Mr Clarke.7 The Deputy Commissioner, at the time, Sir Paul Stephenson, played no apparent role in any relevant events in 2005/2006. The then Commissioner, Lord Blair, said that his knowledge of the entire investigation was limited to short briefings imparted in a few minutes on very few occasions 8 Lord Blair explained that if those involved had not been members of the Royal Family, for whose security he had ultimate responsibility, he would not have expected to have been informed of the case at all.9 The Senior Investigating Officer (SIO), Detective Superintendent Philip Williams (now Detective Chief Superintendent (DCS) Williams),10 was responsible for implementing the strategy set by Mr Clarke, for the daily conduct of the investigation and for providing him with regular personal briefings.11 Otherwise, DCS Williams reported to Mr Clarke through his senior officers, DCS Tim White and Commander John McDowell.12 By May 2006, Commander McDowell was succeeded by Commander Loughborough. From 18 April 2006, the Investigating Officer (IO) was Detective Chief Inspector Keith Surtees (now DCS Surtees). His role was to deliver the strategy by deciding and putting into effect the tactics.13 DCS Surtees also personally briefed Mr Clarke14 and undertook the role of SIO when DCS Williams was absent. Towards the end of April 2006, Detective Sergeant Maberly (now a Detective Inspector or DI) was appointed the case officer for Operation Caryatid and worked with Detective Constable Robert Green (now a Detective Sergeant).15 DI Maberly explained
1.10
1.11
p42, para 83, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Peter-Clarke.pdf p42, para 83, ibid 4 p43, para 84, ibid 5 p32, para 83, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-AndyHayman1.pdf 6 p33, para 89, ibid 7 p52, line 11, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-MorningHearing-1-March-2012.pdf 8 p24, para 58, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Blair.pdf 9 p24, para 58, ibid 10 During the six years that have elapsed, many of the officers involved in Operation Caryatid have been promoted through the ranks. For the sake of clarity, the Report refers to them throughout by the rank which they held at the time they gave evidence rather than the (sometimes different) ranks that they held at the various times of their involvement in the investigation or may hold at the time of publication of the Report 11 p34, para 65, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Peter-Clarke.pdf 12 p43, para 84, ibid 13 p22, lines 18-24, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 14 p34, para 65, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Peter-Clarke.pdf 15 Other police officers were involved in the investigation. They will be referred to as and when their involvement is relevant
3
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that his responsibility was to carry out the instructions of the SIO and IO and agreed that his role was hands on, dealing with the evidence as it came in and progressing the case.16 1.12 As standard practice, DCS Williams and DCS Surtees kept a decision log and prepared written case reviews. In these contemporaneous documents, the officers recorded key decisions about the case including their thoughts about the investigation, the details of periodic reviews and their requests for advice from the CPS. Neither Mr Hayman nor Mr Clarke read the decision log or case reviews. Mr Clarke explained that he would not have expected to read them but was briefed orally throughout the investigation. Mr Clarke was involved in the overall review of the decisions made and how the investigation was progressing.17 In contrast with the standard practice adopted elsewhere in this Report, this Chapter refers to certain documents which are not on the Inquiry website or otherwise in the public domain. They are referred to in general terms only with some parts quoted in order to tell the full story. The reason is that to publish them in full at this time might prejudice criminal investigations and future trials. Although each has been closely examined during the course of the Inquiry, therefore, hyperlinked references to these documents cannot be provided.
1.13
2. The collection of evidence

The covert phase
2.1 Mr Clarke defined the parameters of Operation Caryatid as follows: to investigate the unauthorised interception of voicemail messages in the Royal Household; to prosecute those responsible if possible; and to take all necessary steps to prevent this type of abuse of the telephone system in the future.18 The first step taken by DCS Williams was to establish whether or not a third party had been accessing the voicemail messages of Mr Lowther-Pinkerton and Ms Asprey without their permission.19 At that stage Vodafone and O2, the respective service providers, maintained that they had not appreciated that it was possible to listen to another persons voicemail messages without their knowledge or permission.20 Indeed at that time none of the service providers admitted to being aware of this capability.21 The evidence of DCS Williams was that it was only due to the tenacity of DI Kevin Southworth (now Detective Superintendent Southworth) who worked with Vodafone and their engineers that the police discovered how mobile phone voicemail systems worked. It was the case, apparently, that the service providers had limited ability to establish precisely what was
2.2
2.3
16
p75, lines 2-7, Mark Maberly, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 17 pp34-35, para 66, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-PeterClarke.pdf 18 pp42-43, para 85, ibid 19 p11, para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-PhilipWilliams.pdf 20 p12, para 16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-PhilipWilliams.pdf; p8 para 16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCSKeith-Surtees.pdf 21 Although this aspect of the evidence has not been investigated in detail, it contrasts with the evidence of Steven Nott who spoke about the security ramifications of the messaging system to Vodafone as long ago as 1999 before seeking to interest the press, the television and other mobile providers in the issue: http://www.levesoninquiry.org.uk/ wp-content/uploads/2011/12/Witness-Statement-of-Steven-Nott.pdf
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happening within any given voicemail system.22 They could not, for instance, determine whether a voicemail message (whether new or old) existed within a voicemail box at any particular time.23 Although it was possible to identify outside or potential rogue numbers dialling into a persons voicemail box, the available software could not identify whether or not the rogue number had listened to any messages.24 They also could not assist with how often the illegal access was taking place or how widespread it was.25 2.4 By 30 January 2006, with the assistance of Vodafones engineers, the police had established that a number of outside or potential rogue numbers had been calling in to Mr LowtherPinkertons voicemail box, using his unique voicemail access number.26 One of those rogue numbers was traced to Mr Goodmans home address.27 DCS Williams immediately recognised the possible implications of this apparent vulnerability in voicemail systems and recorded in the decision log that they could be quite far reaching among the mobile phone service providers.28 It is appropriate to note that he was: at pains to ensure that no one company was singled out as being particularly at risk/fault because to an extent, we only knew what we knew from those companies who had software that could give an indication of potential interception.29 Despite acknowledging how widespread the practice was likely to be, DCS Williams maintained the focus of the investigation on the Royal Household (not least because the enquiry was still in its early stages) with a view to establishing whether what the police had discovered was a one-off set of occurrences or something more systematic.30 The police therefore obtained Mr Goodmans telephone records (or outgoing call data) in order to ascertain whom he was calling.31 On 9 March 2006 there was a case review meeting involving Mr Clarke, DCS Williams, DCS White and DCI Paul Greenwood. It was decided at that meeting that the lines of enquiry would remain focussed predominantly on Mr Lowther-Pinkertons voicemail box and the link to Mr Goodman. As regards Mr Goodman, the investigation was to focus on establishing whether or not he was attempting to access other voicemail accounts and whether or not his actions were limited to the Royal Household.32
2.5
2.6
2.7 2.8
p13, para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-PhilipWilliams.pdf 23 p17, para 22, ibid 24 p13, para 29, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-KeithSurtees.pdf 25 p8, para 16, ibid 26 p12, para 16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-PhilipWilliams.pdf; Vodafone referred to voicemail telephone numbers as unique voicemail numbers (UVNs) whilst O2 referred to them as direct dial numbers (DDNs). Rather than use one or more acronyms, they will be referred to generically as unique voicemail access numbers 27 p13, para 16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-PhilipWilliams.pdf; para 29, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCSKeith-Surtees.pdf; 28 p13, para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-PhilipWilliams.pdf, 29 p18, para 24, ibid 30 p13, para 18, ibid 31 pp23-24, lines 21-1, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 32 Review of Case dated 9 March 2006 (not published)
22
274
2.9
On 4 April 2006 DCS Williams prepared a written review of the case.33 He recorded that following an analysis of the outgoing call data from Mr Goodmans home phone number, five to six potential victims, all within the Royal Household, had been identified. The police had ascertained that Mr Goodman had been making a significant number of phone calls to Mr Lowther-Pinkerton and these other members of the Royal Household over a sustained period of time. In the review, DCS Williams indicated that guidance would be sought from the CPS in relation to the two main offences that he had identified as arising from Mr Goodmans actions.34 The first of the two offences about which the police sought advice was unauthorised access to computer material contrary to s1 of the Computer Misuse Act 1990 (CMA); this is a summary only offence attracting a maximum six months imprisonment. The second offence was interception of a telecommunication system contrary to s1 of the Regulation of Investigatory Powers Act 2000 (RIPA), an indictable offence attracting a maximum two years imprisonment. S1(1)(b) of RIPA makes it a criminal offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of a public telecommunication system. DCS Williams also set out in the review his understanding that the s1 of RIPA offence would not be committed unless the interception took place before the intended recipient had listened to the message. This has been referred to during the Inquiry by reference to the analogy of an unopened envelope and as the narrow interpretation (the wide interpretation, in contrast, being that the timing of the interception would be immaterial to the commission of the offence so that it would not matter whether or not the intended recipient or anyone else entitled to access the voicemail system had done so). He noted that the practice of voicemail interception: ... was highly unlikely to be limited to Goodman alone and is probably quite widespread amongst those who would be interested in such access a much wider security issue within the UK and potentially worldwide.
2.10
2.11
2.12
This case review also demonstrated that, at this early stage, DCS Williams was concerned about the pressure on resources. He recorded that: taking this inquiry forward will impact on core SO13 operations and the resource implications for a prosecution could be significant. The resource implications referred to by DCS Williams in the context of core operations conducted by SO13 need hardly be made explicit. The terrorist threat in 2006 remained at the highest level and must legitimately have been assessed as being at a totally different order of priority to voicemail interception.35 At the same time, however, the need to keep the investigation secret and the need to maintain the confidence of the Royal Family was militating against transferring the investigation out of SO13. By 13 April 2006 nine potential victims within the Royal Household had been identified. DCS Williams decided that only six of them would be notified that they were potential victims. Those six included three members of the Royal Family itself. DCS Williams noted in the decision log of that day that:
2.13
33
p15, lines 8-15, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-29-February-2012.pdf; Review of Case dated 4 April 2006 (not published) 34 para 19, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip-Williams.pdf 35 paras 5.3-5.5, provide an exposition of the weight of the terrorism investigations which were over-stretching the resources of S013 and had required Mr Clarke to borrow resources not only from other departments within the MPS but other police forces
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extending the circle of knowledge concerning what is still a highly sensitive covert enquiry runs the risk of the nature of the enquiry becoming more publicly known and possibly alerting suspect(s), thereby preventing the opportunity for offenders to be brought to justice and/or other appropriate security and commercial interests to be fully considered once the full facts are known. 2.14 By 18 April 2006 the investigation had reached a turning point: it was capable of moving into a phase of evidence-gathering for the purposes of a prosecution. DCS Williams recorded in the decision log that he had raised with Mr Clarke, Commander McDowell and DCS White his concern about continuing with the investigation given the pressure on resources:36 Im raising to my senior management that if we take this forward to a final prosecution and it gets played out in court, given the fact that we are under huge, huge pressure in terms of our counter-terrorism operations, how is it right that the anti-terrorist branch is dedicated [sic] investigating resources to something that actually is not terrorism? Equally, there were valid arguments for why we should retain it. 2.15 Mr Clarke decided that the investigation would continue with a view to prosecution and would continue within SO13.37 DCS Williams therefore asked for and obtained additional investigative resources.38 DCS Williams explained the stage the investigation had reached as follows:39 My parameters remained in terms of keeping the investigation focused on the primary victims supported by an uplift in resourcing to enable the evidential gathering phase to begin in earnest. 2.16 DCS Williams gave evidence that when looking ahead to a potential trial, his principal concerns were maintaining the confidence of the victims and presenting the case in the clearest and most straightforward way possible. He put it in his the statement (prepared for judicial review proceedings against the MPS40) that:41 In terms of securing the confidence and willingness for any victims to be willing to give evidence in court my strategy was to try to prove the offences based on technical evidence rather than bringing into a public arena who might have been leaving messages for whom and almost inevitably, what the content of any message might be by way of proof it existed. Equally I wanted to be able to present the case in a clear and concise manner to ensure the best chance of a successful prosecution and thereafter provide the greatest sentencing powers. 2.17 In short, DCS Williams was anxious to ensure that the prosecution could be ring-fenced so as to avoid any member of the Royal Family being placed in the potentially embarrassing position of giving evidence and to avoid the examination of the actual content of any of the intercepted voicemail messages. In other words, he wished to confine the evidence for the prosecution to witness evidence from members of staff within the Royal Household (as opposed to members of the Royal Family) and to technical data relating to the interceptions. It is not correct to interpret the use by DCS Williams of the term ring-fence as an intention or attempt to rule out the investigation of other potential victims.
36
p21, lines 8-23, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-29-February-2012.pdf; 37 Decision log dated 18 April 2006 (not published) 38 para 1.11 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip-Williams.pdf 39 para 21, ibid 40 Save where otherwise indicated references to the witness statements of DCS Surtees and DCI Maberly are also to witness statements they prepared for the judicial review proceedings 41 para 22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip-Williams.pdf
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2.18
On 20 April 2006 DCS Williams and DCS Surtees had a meeting with Carmen Dowd, Head of Special Crime Division at the CPS.42 Ms Dowd was responsible for the provision of legal advice in relation to the investigation and eventually for prosecution decisions. At the meeting, DCS Williams and DCS Surtees raised the question of how s1 of RIPA should be interpreted. DCS Surtees recalled specifically the use of the analogy of the unopened envelope.43 They also raised the strategic and presentational question of whether the prosecution could be ringfenced in the manner described in the paragraph above.44 On 25 April 2006, via email, Ms Dowd provided the police with preliminary advice. She indicated that both the offence under s1 of RIPA and the offence under s1 of CMA were engaged. As for s1 of RIPA, Ms Dowd reserved her position, but gave the provisional indication that the narrow interpretation was correct. She put it in this way: 45 the offences under Section 1 of RIPA, would as far as I can see only relate to such messages that had not been previously accessed by the recipient. However, this area is very much untested and further consideration will need to be given to this. Again, the actual technical evidence would need to be carefully considered before any firm view could be taken about whether the offence is capable of being proved. Unless the evidence is capable of showing all of the details we discussed (length of original message, length of call to recipients voicemail etc) it is unlikely that we could proceed with the technical evidence alone.
2.19
2.20
Ms Dowd also advised that the prosecution could be ring-fenced in order to avoid the need for a member of the Royal Family to give evidence. Finally, it is correct to point out that in the context of this preliminary advice Ms Dowd did not mention the possibility of charging the inchoate offence of conspiracy under the Criminal Law Act 1977, or the consequences of relying on an agreement to intercept messages which would not require proof of an unopened envelope. There is no sensible basis for suggesting that this provisional legal advice, given by Ms Dowd, on the interpretation of s1 of RIPA was influenced by any concern about offending NI and I have no doubt that it was not. The fact that her initial view as to the proper interpretation of s1 RIPA may not have been right therefore throws no light on the conduct of the police and the press. However, it is important to consider whether the fact that this initial view was provided goes some way to explaining the apparent restraint shown by the MPS in limiting the scope of the investigation. This preliminary advice certainly led DCS Williams to direct the investigation towards obtaining technical evidence that the suspect was accessing voicemail messages before the intended recipient. In the words of DCS Williams:46 This was my understanding of the law from the beginning of the enquiry, it was a key question put to the CPS which they confirmed as being correct and thereafter it was central to all our activity in terms of securing best evidence including the use of an expert witness. If at any time the advice had been otherwise I would not have had
2.21
42
paras 19-20, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-KeithSurtees.pdf 43 para 21, ibid 44 para 22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip-Williams. pdf; paras 22, 23, 25, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCSKeith-Surtees.pdf 45 pp74-75 lines 15-2, Lord Macdonald, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-4-April-2012.pdf 46 para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip-Williams.pdf
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to go the lengths I went to, to both shape the investigation and identify any potential victims of this form of criminality. 2.22 To this extent, therefore, this initial advice did have a causative bearing on the subsequent course of the police investigation and it will be necessary to consider any continued impact it might have had as time passed. In the light of Ms Dowds advice, however, the police cannot be criticised for adopting the investigative approach described by DCS Williams. It goes further because it would have been irresponsible to ignore it, the risk being that, unless the allegation of conspiracy was brought into play, they would fall at the first hurdle of any prosecution under s1 of RIPA should the court subsequently conclude that this narrow interpretation was correct without there being evidence that the envelope had been unopened when accessed by the accused. Although the CPS had been careful to advise that the CMA was an alternative statutory recourse, if the police wished to keep both legal avenues open in line with CPS advice it was necessary to obtain this specific evidence. Simply as a matter of chronology, it is worth noting that, on 25 April 2006, Andy Hayman met Andy Coulson and Neil Wallis (then Editor and Deputy Editor of NoTW) with Dick Fedorcio. At this stage, there was no evidence in the hands of the police that any NoTW journalist (other than Mr Goodman) was implicated in voicemail interception. All have said that the issue of voicemail interception (still in its covert phase) was not discussed on that occasion, and as Mr Garnham QC was able to develop in argument, an examination of the chronology of decision making within the MPS at this point demonstrates that nothing discussed at that dinner could have resulted in any favour shown to NI.47 In the circumstances, although I understand why it is contended that the contrary cannot be excluded, I am satisfied that the police did nothing to alert the editors as to what was going on: it does, however, serve to underline the importance of care in relation to contacts with any organisation an employee of which is being investigated simply because of the perception that favours could be exchanged. The story moves on to 9 May 2006 when DCS Williams recorded in an Enquiry Update48 that the police had discovered another potential suspect, a Paul Williams (which transpired to be an alias used by Mr Mulcaire).49 In the course of its own internal enquiry O2 had traced audio recordings of a man calling himself Paul Williams phoning O2 customer services and asking for pin numbers for voicemail accounts to be re-set to default settings. He held himself out as an O2 employee who was authorised to have access to customer information and to make such requests. O2 discovered that on two occasions Paul Williams asked for Ms Aspreys pin number to be reset to default, and that this had been carried out. In the update DCS Williams set out three options to be considered by the senior management. Option one was that there be no further investigation with the intention of prosecution. Option two was to hand over the investigation to another police unit; option three was to commence a formal investigation to prosecute those intercepting the Royal Household voicemail messages and in tandem with the above establish whether or not there are evidential links to the potentially wider unauthorised intrusion/access suspected by O2. He recommended the third option over the short-term, and provided a very perceptive rationale in this way: we have discovered a vulnerability that exists within the mobile telephone industry whereby unscrupulous people could intrude upon the privacy of the vast majority of
47
2.23
2.24
2.25
pp34-35, Neil Garnham QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-MorningHearing-23-July-20121.pdf 48 Not published 49 para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-Keith-Surtees.pdf;
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the public through unauthorised access to voicemail. I suspect that the media world may well be aware of this vulnerability and there may well be a host of people using this vulnerability for journalistic purposes. The Goodman connection is potentially an example of this, but the more sinister side would be that the knowledge could equally be utilised by criminals whether that be in the general sense, for terrorism or to threaten national security. Therefore I believe that this matter has a significant public interest aspect to it particularly in terms of safety and security and risk to life. 2.26 DCS Williams recorded at the end of the update that its contents had been briefed to DCS White and Commander Loughborough and that he had been advised that the enquiry would remain within SO13 for the time being. In line with the preliminary advice from the CPS, he then set about deciding how best to prove the interception of voicemail messages before they had been heard by the intended recipient. DCS Williams decided to mount what he termed a sting operation (although this is a misnomer because the operation did not involve deception) which amounted to allocating a test period over around three weeks in May and June 2006 during which the relevant activity on the mobile phones of Mr Lowther-Pinkerton and Ms Asprey would be monitored.50 With DCS Williams working abroad between 12 May and 5 June 2006, DCS Surtees oversaw this aspect of the operation the aim of which was to prove who was accessing messages and to obtain evidence to establish that after a voicemail message had been left, the same message was illicitly accessed before it was heard by the intended recipient.51 During this test, Mr Lowther-Pinkerton and Ms Asprey were asked to retrieve their voicemail messages only at set times twice in every 24 hour period. Where either came across a message that was marked as an old message, but which he or she had not previously listened to, this prompted further investigation.52 Part of the strategy for the operation was to ascertain whether the service providers had the software capability to detect both the fact that a message had been left and the retrieval of unheard messages by one of the rogue numbers.53 It transpired that it was only through Vodafones Vampire data that the police could definitively prove the sequence of person A leaving a message on person Bs voicemail and person C dialling in and retrieving the message.54 DI Maberly explained that Vampire data was an engineering or diagnostic tool used by Vodafone to monitor how its systems were running, including its voicemail systems. In the process of monitoring the systems, it captured data relating to customers accounts, including when a voicemail message was left and when it was opened. However, this data was not retained for very long and so Vodafone needed to harvest it on a regular basis.55 DI Maberly had the impression that it would only exist for a matter of days or maybe a couple of weeks.56 Where Vampire data was not available, the fact that a voicemail message had been accessed had to be deduced from the length of the incoming call to the voicemail box. The telephone expert for the prosecution, David Bristowe, explained that the call would need to be at least
2.27
2.28
2.29
50 51
para 26, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip-Williams.pdf p31, lines 4-21, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 52 para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DI-Mark-Maberly.pdf 53 p24, lines 1-18, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-29-February-2012.pdf 54 p80, lines 3-8, Mark Maberly, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 55 p76, lines 12-23, ibid 56 p77, lines 6-12, ibid
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10 to 14 seconds long owing to the length of the recorded message which the caller would have heard before accessing the voicemail message.57 Therefore, where a call was at least 10 to 14 seconds in length, it could be inferred that the caller had listened to a voicemail message.58 2.30 During the same period, the police carried out a surveillance operation on the home address of Mr Goodman. The purpose was to prove that the telephone was in Mr Goodmans hand at the time of any relevant calls from that number into the voicemail systems being monitored.59 On 15 May 2006 O2 informed the police that they had identified and contacted a number of customers whose voicemail accounts had potentially been accessed unlawfully. Two such customers, Max Clifford and HJK60 had asked that the police be informed.61 This was highly significant because these potential victims were not members of the Royal Household and therefore would not ostensibly have been of any interest to Mr Goodman (although the NoTW was later to argue that Mr Goodman had a wider remit than the Royal Household). At around the same time, other service providers also gave the police details of possible victims although all but a very small number were linked to the Royal Household.62 On 30 May 2006 Ms Dowd prepared a briefing on the current status of the investigation for the Director of Public Prosecutions (DPP), who at that time was Ken Macdonald QC (now Lord Macdonald QC of River Glaven), and for the Attorney General.63 This was conventional in any case involving members of the Royal Family. In the briefing Ms Dowd explained the legal and technical issues, and stated: in addition to Goodman, another potential suspect has been identified as accessing the UVMs [sic] on a number of occasions and inquiries continue in relation to him. I am told that in the media world he is widely suspected of being able to access mobiles A vast number of UVMs belonging to high profile individuals (politicians and celebrities) have been identified as being accessed without authority these may be the subject of a wider investigation in due course. A number of the targets of these unauthorised accesses have been informed some of whom have declined to assist in a police investigation. Lord Macdonald QC asked to be kept closely informed.64 He was not asked to give an opinion on the case and he said it would have been surprising if he had been asked to do so.65 2.33 On 31 May 2006 DCS Surtees prepared a written update on the investigation.66 As the briefing given by Ms Dowd to the DPP indicated, the police had by then ascertained that one of the rogue numbers accessing the voicemail boxes of Mr Lowther-Pinkerton and Ms Asprey belonged to Mr Mulcaire. DCS Surtees identified the possibility that Mr Mulcaire and Paul Williams were one and the same person. The update referred to Max Clifford and HJK and
2.31
2.32
57
pp32-33, lines 19-9, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 58 p33, lines 10-16, ibid 59 pp31-32, lines 22-4, ibid 60 An individual whose identity has been anonymised throughout the Inquiry: http://www.levesoninquiry.org.uk/wpcontent/uploads/2011/11/231111-S19-restriction-order-HJK.pdf 61 para 35, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-Keith-Surtees.pdf 62 para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-Keith-Surtees.pdf 63 Not published 64 p5, para 12b, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-LordMacdonald-QC1.pdf 65 p7, para 12h, ibid 66 Operation Caryatid Update (not published)
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suggested that the investigation into potential victims outside the Royal Household should be taken over by a team outside the anti-terrorist branch. Pursuing his recommendation that the wider investigation should be undertaken by a different team, he also recorded that he had briefed the relevant officers. 2.34 Mr Clarke decided to keep the investigation within the anti-terrorist branch and not to widen the original parameters of the investigation.67 Mr Clarke described his thinking as follows:68 As the investigation progressed it became clear that there may have been many other people being targeted by whoever was responsible for the interception, and there was potential for the investigation to become much wider. I took the decision that this was not appropriate for a number of reasons. In coming to the decision that the parameters of the investigation had to remain tightly drawn it was obvious to me that a wider investigation would inevitably take much longer to complete. This would carry two unacceptable risks. First, that the investigation would be compromised and evidence lost and second, that the much wider range of people who we were learning were becoming the victims of this activity would continue to be victimised while the investigation took its course. This would probably go on for many months and to my mind this would be unacceptable. 2.35 Mr Clarke rejected the option of informing the victims, in confidence. This was to enable the investigation to continue:69 It was not feasible to notify victims and continue with a wide ranging covert investigation, and if we had done so, it is inconceivable that the fact that there was an enquiry into this matter would not have leaked, thereby compromising the investigation and leading to the potential loss of evidence. 2.36 Mr Clarke agreed that this decision not to widen the parameters of the investigation was probably made on or shortly after 31 May 2006 when DCS Surtees briefed him on the potential breadth of the investigation.70 His evidence was that, when it was becoming clear that the police were looking at something endemic within a particular part of the media and that there were more victims than they originally thought, he did seriously consider transferring the investigation from SO13 to a different department. He explained:71 ...Initially it was because by that stage my officers were very familiar with the quite complicated technical aspects of this offenceThey had also engendered the confidence of the royal household in the way in which they were conducting themselves and the investigation, and because of the wider nature of what was happening, it would have meant picking apart the investigation and perhaps hiving off one part to one department, keeping another part with us, and that would have not made any sort of operational sense. So at that stage I decided it should stay where it was. 2.37 In evidence DCS Surtees said that it was a fair observation that it might be difficult to disentangle an investigation involving offences against the Royal Household from an investigation involving other victims.72 As a result, the police strategy was to continue concentrating on arresting and prosecuting Mr Goodman and Mr Mulcaire and not (in the
67 68
para 38, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-Keith-Surtees.pdf para 88, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Peter-Clarke.pdf 69 para 89, ibid 70 pp31-32, lines 22-10, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-1-March-2012.pdf 71 p29, lines 3-14, ibid 72 pp38-39, lines 20-1, ibid
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words of DCS Surtees): to delay this exercise in favour of identifying a multitude of victims to load a future indictment73 He explained his biggest fear was that:74 sensitive state visits by principle [sic] members of the Royal Family to areas such as Iraq or Afghanistan could be leaked with the obvious security risks associated with such knowledge, whilst a trawl for victims continued. 2.38 On 21 June 2006, DCS Williams prepared a further written update.75 He recorded that through an analysis of the Vodafone Vampire data gathered during what he termed the sting operation, the police had identified two voicemail interceptions in the narrow sense76 by Mr Goodman and two by a phone number which was subsequently attributed to Mr Mulcaire.77 He described this as a moment of reflection during which he put the operation in its context.78 DCS Williams concluded by setting out his concerns about the strain on resources caused by the burgeoning number of SO13 anti-terrorist operations and the need, given the limited resources available, for a proportionate approach to Operation Caryatid:79 At the moment I consider that I have enough resources to continue with this enquiry in terms of what is currently required, however I believe that it is important to formally record that this investigation has been conducted against a backdrop of sustained and increasing workload for SO13 since at least December 2005. Over that period the number of operations has increased from numbers in the 50s to today at tasking where we have reached 72 active operations with a number of them posing significant life threatening risks. Today again at tasking, as in previous weeks, there were requests for additional resource with there no longer being any spare capacity. This has resulted in some lower priority anti terrorist operations being placed on hold to release officers to higher priority operations. The level of the current workload is unprecedented and the assessment for the future is that this is unlikely to ease. Operation Caryatid has been brought to its current status against this backdrop and the need to balance resources against all anti terrorist operations. Subject to the stages outlined above the scope of any future overt operational activity e.g. arrest/ searches will need to be balanced against the whole of SO13/CT priorities. These comments are documented purely to reinforce how my decision-making has been reached in terms of how to approach this enquiry in a proportionate manner. 2.39 Meanwhile, the service providers continued to identify previously undiscovered potential victims.80 The decision not to widen the investigation was, however, maintained. On 6 July 2006 DCS Surtees noted in the decision log that he was aware that there were potentially numerous victims, at the hands of Mr Goodman and Mr Mulcaire or others, but that identifying all those victims would be hugely time consuming.81 In the context of what was later to happen (both at the conclusion of the prosecution and during the years that followed
73 74
para 40, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-Keith-Surtees.pdf para 41, ibid 75 Operation Caryatid Update as of Wednesday 21 June 2006 (not published) 76 i.e. interceptions before the voicemail message had been listened to by its intended recipient 77 para 26, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip-Williams. pdf; ultimately, these were the only interceptions in the narrow sense that the police were able to prove 78 pp35-36, lines 3-2, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-29-February-2012.pdf 79 pp34-35, lines 5-2, ibid; Operation Caryatid Update as of Wednesday 21 June 2006 (not published) 80 para 41, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-Keith-Surtees.pdf 81 Decision log dated 6 July 2006 (not published)
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when concerns were being expressed about the way in which the investigation had been conducted), this is an important observation. 2.40 On 30 June 2006 the police prepared a written request for advice from the CPS.82 The police informed the CPS that the telephone evidence indicated that: (a) between 26 January 2005 and 24 April 2006 Mr Goodmans landline had called the unique voicemail access numbers of Mr Lowther-Pinkerton and Ms Asprey 145 times and 107 times respectively; between 22 February 2006 and 8 May 2006 a landline located in the offices of NI had called Ms Aspreys unique voicemail access number; in May 2006 a landline number registered to an office leased by Mr Mulcaire had called the unique voicemail access numbers of Mr Lowther-Pinkerton and Ms Asprey five times and 38 times respectively; and the number relating to Mr Mulcaires office premises had called Mr Goodmans mobile phone a number of times.
(b) (c)
(d) 2.41
On 14 July 2006, before the CPS responded to this request for advice from the police, Ms Dowd sent another confidential briefing note to the DPP and the Attorney General.83 Lord Macdonald agreed that the briefing was premised on the narrow interpretation of s1 of RIPA.84 However, Ms Dowd expressed the view that offences of conspiracy between Mr Goodman and Mr Mulcaire to commit s1 of RIPA and s1 of CMA offences may better reflect the alleged criminality involved and enable a more comprehensive case to be presented.85 On 18 July 2006 Ms Dowd advised the police in writing. She advised that the case against Mr Goodman and Mr Mulcaire, at that stage limited to the Royal Household interceptions, was cogent and presentable and could proceed without the need to delve into the content of any messages left and/or retrieved.86 She also stated that:87 Whilst there are many aspects of the evidence which I would require to be clarified, it is my initial assessment that offences under the CMA and RIPA 2000 may be provable. However, in addition, I would also be looking to consider an offence of conspiracy to commit those offences on the basis of other evidence being available
2.42
2.43
It is correct to observe that this was the first occasion on which the possibility of the criminality being accommodated within the offence of conspiracy was mentioned by the CPS. As Lord Macdonald pointed out in evidence, and reflected above, a charge of conspiracy would not require proof that every interception had taken place before it had been accessed by the intended recipient:88 indeed, given that the offence was constituted by the agreement rather than by the subsequent act or acts, it would probably be sufficient to prove a common
82 83
Not published Not published 84 p59, lines 3-15, Lord Macdonald QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-4-April-2012.pdf 85 p4, lines 18-20, David Perry QC, ibid; Letter of advice not published 86 p36, lines 6-8, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-29-February-2012.pdf; Letter of advice not published 87 para 44, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Lord-MacdonaldQC1.pdf; Letter of advice not published 88 pp78-79, Lord Macdonald QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-4-April-2012.pdf
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intention to intercept voicemail messages without examining exactly when such multiple accessing would be taking place. 2.44 Also on 20 July 2006 DCS Williams prepared a further written update on the investigation.89 He noted that: there may well be a much wider range of victims and indeed I suspect that Mulcaire could well be someone whose business it is to secure access to information concerning a whole range of VIPs. Identifying the options, again he included: extend[ing] the investigation to include the full extent of this potential criminality which would help to establish the seriousness of what we are facing. but he went on: However, to do this effectively the enquiry would probably have to remain covert, which would leave my known and unknown victims vulnerable over a much greater period of time. It would also require significant SO13 resources and the current terrorist threat requires their deployment elsewhere against much higher threats to public safety/life.
2.45
Because of this, DCS Williams was of the view that Operation Caryatid should remain limited to victims within the Royal Household but that Mr Goodman and Mr Mulcaire should be arrested as soon as possible in order to curtail the exposure of the victims to voicemail interception. DCS Williams also had in mind that including more victims would be unlikely to increase significantly the sentence that the offenders would receive; and that securing a conviction as a deterrent to others would be best achieved through a clear and simple case. He set out that the alternative to limiting Operation Caryatid would be: a much extended trial, numerous victims [sic], potentially more suspects with a host of council [sic] all seeking to derail what could appear to be a far more complicated case ... [whereas] Once executive action is taken then all parties can be briefed re the security issues and the phone companies can start to put in appropriate security measures and brief/reassure their customers all of which will reduce public/personal harm ...
2.46
In the same update of 20 July 2006, DCS Williams also listed the factors which influenced his view that the investigation should not be transferred out of SO13. His list included the following: (a) (b) (c) (d) that the support of the Royal Household was strongly based on the confidence it had in SO13; that the relationships formed between SO13 and the service providers were crucial to a successful prosecution; the importance of continuity of the investigation; that delays would be caused by transferring the investigation to another department because a new SIO would need to review the case and may have resource constraints that might further delay the operation. the current teams intimate knowledge of the case, which could not realistically be picked up in the same detail by a new team.
(e)
89
Operation Caryatid Update as of Thursday 20 July 2006 (not published)
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2.47
DCS Williams sought strategic guidance on this approach from Mr Clarke, who endorsed his view.90 He then went on leave until 12 August 2006 so it fell to DCS Surtees to deal with information received on 26 July 2006 to the effect that Mr Mulcaire had accessed the voicemail of Tessa Jowell, then a cabinet minister. DCS Surtees then noted in the decision log:91 As a result the position is that this changes the perception that as well as the Royal Correspondent of the N.O.W filling up his editorial with Royal gossip the potential for operational Security breaches now not only surrounds the Royal household but also Cabinet Ministers. When giving evidence, DCS Surtees agreed that his primary concern was then to stop the voicemail interception in the interests of national security. 92
2.48
On 2 August 2006 Ms Dowd discussed the case with leading counsel, David Perry QC. Mr Perry agreed during his evidence that the advice he gave was essentially that, first, there was evidence in respect of four main substantive offences93 which established in any event that the interception had taken place before the intended recipient had accessed the voicemail message concerned; and second, that in relation to the conspiracy charge, the issues about whether or not there needed to be an unopened envelope would not arise.94 Mr Perry explained in his evidence that he also advised against charging Mr Mulcaire and Mr Goodman with CMA offences because asking a jury to deal with those allegations together with s1 of RIPA would be confusing;95 furthermore, s1 of RIPA more accurately reflected the conduct concerned.96 Mr Perry also advised as to the possibility of obtaining a warrant under the Police and Criminal Evidence Act 1984 (PACE) and the attendant difficulties which would arise in relation to journalistic material.97 The only record that exists of the meeting on 2 August 2006 is an email sent by Ms Dowd to the police on that day.98 On the question of the interpretation of s1 of RIPA, Ms Dowd said the following in the email: We have briefly discussed before the possibility of arguing that what we have termed our Computer Misuse Act offences might fall to be considered as RIPA offences that the issue has not definitively been argued. I was reticent about arguing the point in this case. However, having considered the matter with Counsel we have concluded that we could properly argue the point and in any event nothing would be lost as we already have the 4 main clear RIPA offences (if not more I hear!).
2.49
2.50
2.51
As regards Ms Dowds use of the words if not more I hear, DCS Surtees was asked whether this was a reference to the possibility, at least, of additional co-conspirators. DCS Surtees disagreed and said that:99
90
para 28, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip-Williams.pdf Decision log dated 26 July 2006 (not published) 92 pp39-40, lines 25-8, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 93 The four interceptions proved during the test period, referred to in paragraph 2.38 above 94 p7, lines 10-22, David Perry QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-4-April-2012.pdf 95 pp6-7, lines 25-2, ibid 96 p7, lines 5-7, ibid 97 p9, lines 9-15, ibid 98 pp5-6, lines 24-8, ibid; email not published 99 p43, lines 3-7, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf
91
285
I think its more that weve got more information/evidence coming from the telephone companies to talk about access to DDNs and the sequencing which were concentrating on as opposed to more suspects. 2.52 Pausing in the narrative, it is appropriate to comment on the approach of the police to the gathering of evidence and to the strategic decisions that were taken, particularly against the context of the concern that this approach was or could have been affected by the relationship between the MPS or its most senior officers and NI. The first point to make is that there is no evidence (or even the slightest suggestion) of any relationship between NI, the NoTW or any of its employees and any officers involved in this enquiry from the Deputy Assistant Commissioner (Mr Clarke) down through the detective ranks. Whilst each, as their roles required, will have interacted with individuals from NI at certain times during their careers, they did not form social relationships. Mr Clarke gave evidence as to his level of interaction with individuals from NI, which, in spite of his senior position and high-profile role, was extremely limited. To the best of his knowledge he had never met or even spoken to Neil Wallis or Colin Myler (editor of the NoTW between the end of January 2007 and July 2011). He met Rebekah Brooks and Andy Coulson on one occasion in 2004. The purpose of that meeting was to make the media aware of the reality of the terrorist threat because there had been a great deal of criticism in the media of the counter-terrorism effort and some commentators had been saying that the terrorist threat was being exaggerated by the authorities for political or selfserving purposes.100 At the meeting, they were unexpectedly (at least to Mr Clarke) joined by Rupert Murdoch.101 The only known relationship was with Mr Clarkes senior officer, Mr Hayman, and the occasions in respect of which there is evidence of contact with NI in the relevant period will be clear; there is no basis for suggesting that Mr Hayman was any more than peripherally involved in the investigation; to such extent as he was involved in any way, it was solely because of his responsibilities for overall command of Mr Clarkes team. Neither do I believe that Mr Clarke or any of the other officers were or would have been affected by any such relationship. The peripheral nature of the involvement of Mr Hayman is illustrated by his evidence and that of Mr Clarke. The evidence of Mr Hayman is that he allocated the investigation to Mr Clarke, asked him to devise an investigation strategy and an operation,102 and let him get on with it. Mr Hayman only expected Mr Clarke to refer to him if Mr Clarke considered there was something that Mr Hayman needed to brief up to the Commissioner or if Mr Clarke had insufficient resources.103 Mr Hayman stressed that he was not involved in the detail of Operation Caryatid and stated that his degree of detachment was demonstrated by the fact that he did not know when the arrests or searches were going to take place.104 Mr Hayman told the Inquiry that he could count on one hand the number of times he and Mr Clarke spoke about the investigation.105 Mr Clarke, in general agreement with the extent to which Mr Hayman had contact with him on this issue said that he personally would have briefed Mr Hayman probably not very often.106 Mr Clarke could not remember specifically which issues he discussed with Mr Hayman except
E
2.53
2.54
2.55
para 16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Peter-Clarke.pdf para 18, ibid 102 p135, lines 9-11, Andy Hayman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 103 p135, lines 13-16, ibid 104 p135, lines 17-22, ibid 105 p132, lines 2-6, ibid 106 p22, line 14, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-MorningHearing-1-March-2012.pdf
101
100
286
that he certainly briefed Mr Hayman at the outset when it was discovered that Mr Goodman and Mr Mulcaire appeared to be responsible and probably in the run-up to the arrest phase.107 It is clear, therefore, that Mr Hayman did not make any operational decisions and did not influence relevant decision-making, save to the extent that he did not disagree with any of the decisions made by Mr Clarke.108 2.56 Moving on, I am entirely satisfied that each of the decisions taken was justified and based on reasoning that was clear, rational and entirely in keeping with the operational imperatives of the police at that time. I recognise that the decision (which was revisited on a number of occasions) not to expand the investigation beyond the Royal Household gives rise to concern but there is no basis for arguing that it was based on oblique motives consequent on any relationship with NI. Again, in the light of the circumstances prevailing (especially related to the extensive demands on police time in relation to terrorism), it was understandable, justified and appropriate. Elaborating on the reasons for these conclusions, it is clear that during the pre-arrest phase of the investigation DCS Williams, DCS Surtees and, indeed, Mr Clarke were aware that there could be a wide range of other victims but that the priority which needed to be given to counter terrorism, the need for secrecy and the belief that arresting Mr Goodman and Mr Mulcaire would send out the strongest signal and bring this criminality to an end all militated against expansion. The contemporaneous decision logs and case reviews identify this reasoning; DCS Williams spoke of the process as involving a balance of risk and harm which would be judged in particular against the imminence of a threat to life and it is equally clear that judgements continued to be made throughout this time on that basis.109 Such a decision, however, does leave open the need to devise, institute and execute an appropriate exit strategy. All these decisions were re-visited after the operation moved through the arrest and prosecution phases and require re-examination as the extent of the evidence came to be known whereupon the need for an exit strategy to deal with the unresolved issues surrounding the investigation became all the more pressing. It is to these phases that I now turn.
2.57
The arrest and searches

2.58 On 8 August 2006, the police arrested Clive Goodman and Glenn Mulcaire and searched over 13 premises and vehicles, including their home addresses.110 Attempts were also made to search the offices of NI in Wapping111 although to minimise the risk of encountering journalistic material, the CPS had advised that the search of those premises should be confined to Mr Goodmans desk and the finance offices.112 The objectives of the search included looking for evidence implicating other NoTW journalists. DCS Surtees explained:113 The intention behind searching the offices of News Corporation was to seize all material relating to Clive Goodman and Glenn Mulcaire to establish the extent of their unlawful practises [sic] and also to establish the level of knowledge of NOTW concerning this illegal activity. At no point was a decision made by D/Supt Williams
p52, lines 11-17, ibid p52, lines 22-23, ibid 109 p35, lines 13-24, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-29-February-2012.pdf 110 p44, lines 8-9, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 111 pp45-46, lines 24-23, ibid 112 Decision log dated 3 August 2006 (not published) 113 para 45, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-Keith-Surtees.pdf
108 107
287
or I to not investigate the wider possible involvement of NOTW. Despite the legislative challenges to searching journalistic premises, the warrant would be executed as I was eager to gain entry to the offices of NOTW for two reasons: The first was to seek and recover any additional evidence relevant to Clive Goodmans activities and the second was to ascertain whether any other evidence existed implicating others within the NOTW in a wider conspiracy, hence my reference on application for the section 8 PACE warrant to the financial office. 2.59 DI Maberly explained that the police intended to seize records relating to financial payments to Mr Mulcaire (including documents recording the dates of such payments, the reasons for the payments and those authorising the payments) and plans or directories relating to the locations of telephone extensions within the offices.114 It is significant and a matter of regret that the plans for the search were substantially thwarted. DCS Surtees described how the searching officers were obstructed by NI personnel:115 There was some real difficulty in conducting the search at News International. There were I think four of my officers who actually got into the premises before News International barred the rest of my officers from going into News International. We got to the desk of Goodman, we seized some material from the desk of Goodman. There was a safe on his desk, which was unopened. My officers were confronted with photographers, who were summonsed from other parts of News International, and they were taking photographs of the officers. A number of night or news editors challenged the officers around the illegality of their entry into News International. They were asked to go to a conference room until lawyers could arrive to challenge the illegality of the section 18(1) and 18(5) and section 8 PACE authorities, and it was described to me as a tense stand-off by the officer leading the search. The officer tried to get our forensic management team, our search officers into the building. They were refused entry, they were left outside. Our officers were effectively surrounded and photographed and not assisted in any way, shape or form. That search was curtailed. Some items were taken. The search did not go to the extent I wanted it to. 2.61 On being informed of the level of obstruction, DCS Surtees, who was not present at the search, instructed the small team to search Mr Goodmans desk only and leave the premises with whatever they had recovered.116 A locked safe and computer had to be left behind. The financial records were not searched. No subsequent search (with a larger team of police officers) was arranged. DCS Surtees explained: I think the moment had been lost with regard to the information we sought. It, I think, had gone, quite frankly. He agreed that what he meant was that NI might have hidden or destroyed incriminating information.117 This is a disturbing conclusion and justifies a re-evaluation of the way in which PACE operates when seeking to deal with allegations of criminal conduct by journalists while at the same time protecting the essential requirements of a free press.118
2.60
2.62
114
para 28, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DI-Mark-Maberly.pdf pp45-46, lines 24-23, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 116 para 47, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-Keith-Surtees.pdf 117 pp47-48, lines 22-7, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 118 This issue is discussed further in Part J Chapter 2
115
288
2.63
The search of Mr Mulcaires home and business premises was very much more successful: the police seized some 11,000 pages of papers. These papers have been referred to in various ways including as Mulcaires notebook and the Mulcaire archive and, in part, consisted of lists of names, with addresses, landline and mobile phone numbers; in some cases, there were unique voicemail access numbers and pin numbers along with contact details for the network service provider. Additionally, of potential importance was a first name in the top left hand corner of the page. In a number of cases in respect of which Mr Goodman was later prosecuted, that name or corner name (as it has since been termed) was Clive. Given the present status of the investigation and prosecution of journalists in relation to this material, it is not appropriate to go further. What can be added is that the 11,000 pages of documents included what has since been described as the for Neville email.119 This email (dated 29 June 2005) was apparently sent by Ross Hindley at the NoTW, to Mr Mulcaire, and is entitled Transcript for Neville: Wednesday, June 29 2005. The message read: Hello, This is the transcript for Neville. I have copied the text in the below email, and also attached the file as a word document. Ross. TRANSCRIPT FOR NEVILLE: WEDNESDAY, JUNE 29 2005. Then, set out in the body of the email is the text of 35 voicemail messages left for, or received by, Gordon Taylor. The attachment is entitled TRANSCRIPT_FOR_NEVILLE.doc.120
2.64
2.65
In addition to this mountain of paper, the police also seized from Mr Mulcaire audio cassettes, CD roms, white boards showing pin numbers, security codes and bank details of potential victims.121 There was also a contract between Mr Mulcaire and the NoTW according to which Mr Mulcaire was to provide a research and information service to the newspaper and undertook to carry out all research and information assignments requested.122 Further material related to payments from the NoTW, including a number of invoices showing apparent payments to Mr Mulcaire.123 Suffice to say that he was paid a weekly retainer amounting to no less than 2,019 per week. In addition to the weekly retainer he also received other payments, typically of 250, which appear to have been linked to work on specific stories. On the day of the arrests, the MPS notified the public that there were victims other than those associated with the Royal Household. Its press release stated that: As a result of their enquiries police now believe that figures beyond the Royal Household have had their telephones intercepted 124
2.66
2.67
119
Not published This email was not ultimately used in support of the prosecution, instead forming part of the unused material. Unused material comprises documents gathered or created during an investigation but which the prosecution do not rely on in support of the charges; it must be disclosed to the defence if it undermines the case for the prosecution or might assist the case for the defence 121 para 50, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-Keith-Surtees.pdf 122 Not published 123 Not published 124 para 25, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Lord-Reid.pdf
120
289
2.68
Following the arrests, NI instructed BCL Burton Copeland Solicitors (Burton Copeland) to respond on their behalf to any enquiries or requests from the police.125 How the firm went about discharging that responsibility is examined below but the evidence given by Colin Myler was that the role of Burton Copeland was to:126 act as the go-betweens and the word Ive used before is a bridge head, as I understand, between the police and the company, so that anything that the police wanted Burton Copeland would facilitate, so that there was full transparency and there was no opportunity to accuse the company of being an obstruction to what the police were looking for.
The interviews
2.69 On 8 and 9 August 2006 Mr Mulcaire and Mr Goodman were separately interviewed by junior rank detectives. Both were warned of their right to remain silent and, exercising that right, both declined to answer any questions giving no comment responses.127 At this stage, however, what is of interest is not what they might have said but the questions themselves for although, at that stage, the police would only have been able to undertake a cursory examination of the documents seized, they indicate just how much the police knew or appreciated about the likely extent of Mr Mulcaires activities and, at least to some extent, who his victims were. During the interviews of Mr Mulcaire on 9 August 2006, the interviewing officers referred to Abi Titmuss, and various sports people, offenders and members of the Royal Family (whose names have been redacted). Among the allegations put to Mr Mulcaire, Detective Constable Gallagher asked the following questions: Im gonna cross reference something in this document. Theres a reference to Tessa Jowell and then in brackets, sorry circled above it says MP, gives a telephone number DDMI, PIN number. [Redacted] is crossed out David Mills and then it says [redacted], gives an account number and network Voda. David Mills is written underneath and it says husband and gives a telephone number for him and then (INAUDIBLE) refer to another document found in the kitchen cupboard of your home, exhibit WAB/61 is another sheet of A4 paper which also refers to Tessa Jowell and that has a telephone number there. If I can just show this to you, on the left hand side at the top of the page it says Tessa [redacted]. Now that sounds to me, that reads to me like youve written down somebodys conversation. Is that whats taken place here? Have you intercepted her voicemail? Either of Tessa Jowell or her husband? 2.71 DC Gallagher also asked the following question, which made clear that the police had evidence to suggest that Lord Prescott had been the victim of voicemail interception:128
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125
p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Tom-Crone.pdf p8, lines 14-21, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-15-December-20111.pdf 127 The transcripts of the interviews have not been published 128 This is a significant question particularly in the context of the response that Lord Prescott received from Assistant Commissioner Yates when he enquired in July 2009 as to whether he had been the victim of phone hacking; p42, lines 8-13, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Morning-Hearing29-February-2012.pdf
126
290
Another page here, this has got the name John Prescott. Theres another name underneath, first of all it says advisor and then the name Joan Hammel. Youve got her telephone numbers and DM1 numbers, password numbers and Vodafone passwords that Ive already mentioned and an address in NW1. Have you got that information to access John Prescotts network or that of his advisors? 2.72 On the extent of the work that Mr Mulcaire was performing for the paper, DC Gallagher asked the following: Okay. Weve got pages and pages of information here, at least another 30 odd pages, various names. Again youve got instances of telephone numbers, PIN numbers, etc. I just picked out ones which are relevant to this enquiry that we put to you so far. Okay, the last page in this document is an email message. This is very relevant ... This suggests that you do have a contract, a long term contract with the News of the World and that would account for you being paid up to 2,000 a week by them. Can you recall in the last interview, yeah, I put it to you that you were on a retainer by News of the World to do research for them. I hadnt seen that email at the time and that supports what I said earlier on, remind you that you were being paid by them a fixed fee just to do regular for them at their behest. Theyre asking you to do research for them and youre providing them with information and on top of that, when you get a good one, then you have a separate contract for that particular job and youre in the business of delving into peoples personal lives inappropriately, breaking the law to intercept telecommunications and thats part and parcel of what you do. Have you got anything to say to that? 2.73 DC Green returned to the issue on a later occasion and asked the following question: Im asking you to account for the fact that this invoice shows that you have been paid for what would appear to be work in and around a person called Jowell who I believe to be Tessa Jowell who weve outlined in other documents. I believe that this fact is because you may be taking part in the commission of the offence of unlawfully intercepting her telecommunications 2.74 Revealing a suspicion that Mr Mulcaire had been working for one or more NI journalists other than Mr Goodman, DC Green also put the following to him: I have no doubt, this simply goes back and there is evidence there that you have been in the employee [sic] of News International for several years and youve been working with Mr Goodman most recently. 2.75 On 9 August 2006, following the interviews, Mr Goodman and Mr Mulcaire were charged with conspiracy to intercept communications and eight substantive offences of unlawful interception of communications. Critical context for this development in the investigation comes from other arrests which took place on the same day as part of an investigation, Operation Overt. In short, 25 people were arrested for conspiracy to cause nine passenger aeroplanes to explode over the Atlantic; this was one of the largest counter terrorism operations ever undertaken.129 When DCS Williams returned from leave on 12 August 2006, he received a briefing during, which he stated, he would have been told about the range of
129
para 29, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip-Williams.pdf
291
material that had been found130 but it is highly material to bear in mind that, from that time, Operation Overt was also occupying his attention.131
The initial review of the documents seized: compiling The Blue Book
2.76 The police have access to a computerised system to record the largest investigations and for the analysis of the material received. It is known as HOLMES (Home Office Large Major Enquiry System) but it was not used for this operation. In evidence, DCS Williams and DCS Surtees gave different reasons for this decision. DCS Williams said that HOLMES was not used because of the desire to keep the investigation secret. DCS Surtees said that it was not possible to record all the documents on the database because it was already at operational capacity.132 In order to have the material analysed in more detail DCS Surtees had to negotiate for the necessary resources. Because his anti-terrorism colleagues were all working on Operation Overt, DCS Surtees asked for some 20-30 officers from Special Branch:133 to populate a spread sheet with the details of all those individuals who appear on the documents seized that there is an indication of Interception offences against them.134 They began work on 9 August 2006.135 In an entry in the decision log dated 10 August 2006, DCS Surtees gave a further indication of what the police were able to ascertain within days of seizing the documentation from Mr Mulcaire and which revealed his suspicions that Mr Mulcaires work was centred on obtaining access to voicemail messages:136 Having reviewed the material seized at the address searches it is clear that there is a wealth of sensitive documents relating to hundreds of individuals including Royal Household, Members of Parliament, Sports stars, Military Police, Celebrities and journalists. There is also a number of electronic media seized including cassette tapes, microtapes and computers ... It is clear from the documents Recovered from the searches conducted that Mulcaire has been engaged in sustained (years) period of research on behalf of News International, this assumption is based on the fact that News International have for a number of years paid substantial cash payments to his bank accounts. The documents are a collection of handwritten sheets that show research work in various levels of completion. In many there is simply a name of a celebrity or well known public figure these develop into sheets detailing home addresses, business addresses, telephone numbers, DDNs, account numbers, passwords, pin numbers and scribblings of private information. Clearly from these documents I take the view that this research work
pp41-42, lines 14-3, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-29-February-2012.pdf 131 para 30, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip-Williams.pdf 132 para 50, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-Keith-Surtees.pdf 133 p50, lines 3-7, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 134 Decision log dated 10 August 2006 (not published) 135 para 51, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Afternoon-Hearing-29February-2012.pdf 136 Decision log dated 10 August 2006 (not published); para 61, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/02/Witness-Statement-of-DCS-Keith-Surtees.pdf
130
2.77
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292
is and has been undertaken over a substantial period and is with the intention of obtaining access to voicemail messages 2.79 With the identification and notification of potential victims in mind, DCS Surtees continued as follows in the decision log:137 To establish a full picture as to whether individuals have been intercepted or the amount of times they have been intercepted all of the airtime providers will need to search their database to give us those details. Once all of this work is complete then I will discuss the issue of how we will notify those victims. Again whilst it would be advantageous to victims to be informed I would not be in a position to provide details and therefore would need to follow up each contact with further contact and conversations which by sheer volume would be impracticable. I am satisfied that the risk to these victims has diminished due to the arrest of the two subjects From the documentary evidence referred to above a spread sheet has been produced showing the names of everyone who is featured regardless of how developed the research appears. So in some cases the spread sheet will simply feature the name with no other information apparent in others then many other boxes will be populated. Where we have a telephone number and a DDN I have asked for the telephone data to be cross referenced to ascertain whether possible interceptions have taken place. This will produce a possible victim list 2.80 Before passing from this logged decision, it is important to note that DCS Surtees also recorded that the present advice from the CPS was that there needed to be evidence that the voicemail message was intercepted prior to being listened to by the intended recipient. Thus, the advice of David Perry QC (that the wider interpretation of s1 of RIPA which avoided having to prove that the envelope had not been opened was arguably correct and that, in any event, the problems of interpretation could be wholly avoided by charging with conspiracy to commit the RIPA offence) had simply not filtered down to DCS Surtees. He continued to proceed on the basis of a far more restrictive interpretation of the law. The spreadsheet required by DCS Surtees took officers from Special Branch five to seven days (including overtime over a weekend) to create.138 It became known as the blue book139 and DI Maberly explained that it was divided into two parts. The first part contained a list of those potentially compromised and the second summarised the content of the audio and video exhibits.140 The blue book also identified those who had potentially received the product of Mr Mulcaires work141 and was supplemented over the following weeks with various pieces of information, including information supplied by the telephone companies.142 DCS Surtees explained that where Mr Mulcaire had recorded the unique voicemail access number for a particular voicemail box, the relevant mobile phone company was asked whether the number had been dialled by numbers which could be attributed to Clive Goodman or Glenn Mulcaire, that is, the suspect numbers. The precise timing is not clear, but around the same time (and in line with the decision recorded on 10 August 2006), the police asked all five of the UK mobile phone service providers to identify calls by these suspect numbers, to
2.81
2.82
ibid p50, lines 7-12, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 139 para 54, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-Keith-Surtees.pdf 140 para 36, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DI-Mark-Maberly.pdf 141 para 54, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-Keith-Surtees.pdf 142 pp50-51, lines 25-2, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf
138
137
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the voicemail boxes of any of their customers, dating back as far as possible.143 To the suspect numbers was added a hub (or general) phone number at the NoTW which the police had also identified was being used to access voicemail boxes.144 2.83 On 17 August 2006 Burton Copeland wrote to Louis Mably (junior counsel for the prosecution).145 In that letter they claimed that the NoTW had retained the services of Mr Mulcaires company, Nine Consultancy, for a number of years, but that the activities currently the subject of charges were the result of a separate arrangement between Mr Goodman and Mr Mulcaire and were undertaken and paid for outwith this official arrangement with the newspaper. Burton Copeland claimed that at the end of October 2005 Mr Goodman introduced a supposed confidential source named Alexander who was given cash payments. They enclosed the records of payments made to Alexander and a corresponding schedule entitled Cash paid by News International (through Goodman) to Glenn Mulcaire. The cash payments totalled 12,300.
3. The prosecution strategy E

3.1
Conference with counsel on 21 August 2006

On 21 August 2006 a case conference took place at Counsels Chambers involving leading and junior counsel, Ms Carmen Dowd on behalf of the CPS, and various police officers, including DCS Williams. Mr Perrys recollection is that, at that stage, he and Mr Mably did not have all the papers subsequently used at the Crown Court.146 The Inquiry has seen notes of this conference prepared by DCS Williams and also those of Mr Perry and Mr Mably.147 In essence, the police officers explained to counsel that the review of the seized material had demonstrated the existence of approximately 180 targets of interception148 although the nature and quality of the evidence in relation to each had not been established. In order to ensure that the case remained manageable but also reflected the broad totality of the criminality, counsel advised that the matter should proceed to trial on the basis of four to six victims (in addition to those from the Royal Household) who should be selected as being representative of the group as a whole. The advice given by counsel was that this number of victims would afford the court adequate sentencing powers; it was important to provide a picture of the criminality so that its scope could be reflected.149 The inclusion of any more victims would not increase the sentencing powers of the court.150 This is a perfectly sensible and extremely common strategy. As DCS Surtees said descriptively, there is a point at which an indictment saturates.151
143
p63, lines 15-20, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-29-February-2012.pdf 144 p64, lines 8-14, ibid 145 letter not published 146 para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-David-Perry-QC.pdf 147 not published 148 para 55, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-Keith-Surtees.pdf 149 para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-David-Perry-QC. pdf; para 55, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-KeithSurtees.pdf 150 p13, lines 12-24, David Perry QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-4-April-2012.pdf; para 31, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/WitnessStatement-of-DS-Philip-Williams.pdf 151 p40-41, lines 22-1, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf
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3.2
Further, on the hypothesis that there were other potential defendants who were encouraging the commission of the primary offences, counsel pursued the question of whether anyone else was involved. In a short note produced on 14 July 2009, nearly three years later, Mr Perry and Mr Mably recorded the following:152 We did enquire of the police at the conference whether there was any evidence that the editor of the News of the World was involved in the Goodman-Mulcaire offences. We were told that there was not (and we never saw such evidence). We also enquired whether there was any evidence connecting Mulcaire to other News of the World journalists. Again we were told that there was not (and we never saw any such evidence).
3.3
Notwithstanding the apparent certainty of counsels recollection as expressed in their note, the evidence given by Mr Perry was slightly less emphatic as regards the specificity of his questions:153 I dont think I would like to say that I necessarily expressed it in precisely those terms, but I was concerned to discover whether this went further than just the particular individuals with which we were concerned and I think I was conscious in my own mind that the question had to be whether it was journalists to the extent of the editor.
3.4
Mr Perry clarified during his evidence that his question was directed at ascertaining whether there was evidence that would support charges against other individuals rather than understanding simply what suspicions the police might have had. Having been asked whether it was possible that there were speculative discussions along the lines that there might be circumstantial or inferential evidence, as opposed to anything concrete, he said:154 Its certainly possible, although I have no recollection of it, and I think from my point of view I would have been looking to see whether there was a possibility of a case, rather than whether there was something that was speculative
3.5
Recognising that many cases are built on circumstantial or inferential evidence, Mr Perry said:155 But it depends on the combination of circumstances and the strength of any evidence, but certainly in the context of looking at the material that we had in this case and the evidence available to us, I certainly dont think I saw anything that would have enabled me to present a case in any on the basis of any inference or circumstantial evidence.
3.6
Mr Perry also made it clear that he had not seen any evidence that other individuals had been involved, but that he was basing his question on his own knowledge and experience of journalists and newspapers.156 In answer to his direct question, Mr Perry said:157 We were informed that there was no such evidence. I cant recall which officer gave that reply. I think, in fairness to everyone involved in the case, I think its right to say that this was still at a time when the information that we were obtaining was continuing to develop.
p2, John Yates, https://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-18.pdf p15, lines 5-21, David Perry QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-4-April-2012.pdf 154 pp16-17, lines 18-2, ibid 155 p17, lines 3-13, ibid 156 pp15-16, lines 22-8, ibid 157 p16, lines 12-17, ibid
153
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DCS Williams does not dispute that counsel would have been told at the conference that there was no evidence that others at NoTW were involved in the conspiracy. When he gave evidence, DCS Williams said that:158 we were all aware of what the speculations, potentially how this might be further than these two men, because that was part of our discussion in terms of considering whether or not there may be other defendants. In terms of there actually being evidence, and they had access to all the material, then I would agree: at that time, we didnt have evidence.
3.8
It seems overwhelmingly likely both that DCS Williams was the officer who answered Mr Perrys question (neither DCS Surtees nor DI Maberly were at the conference) and that Mr Perrys recollection of the answer given was accurate. As to his note concerning anyone elses involvement, DCS Williams said that there was discussion and speculation about whether others were involved; it was this discussion that led onto the question of obtaining a production order pursuant to PACE directed to NI, requiring the production of documents.159 When DCS Williams was asked about the reference to a production order and his note: if identifies other defendant consider, he said that the intention was that if the fruits of a production order revealed further suspects, they would consider the position at that time.160 DCS Williams described his thinking as follows:161 [Mr Mulcaire] has a contract for something like 104,000 a year. Whats he getting whys he got that? Whos tasking him? What are they tasking him with? And equally, whats he giving back? Dependent on the outcome of that, we would be able to do analysis in terms of, well, assessing, then, consider, actually, what is it that we might be able to do in terms of building a further case?
3.9
3.10
Also after three years, on 15 July 2009, DCS Williams provided a note to the CPS which contained his recollection of the conference.162 In it, he set out his belief that everyone recognised that proving that someone was the victim of interception was extremely challenging (a statement which, as Keir Starmer QC163 himself recognised, was consistent with the narrow view of the law).164 DCS Williams further explained:165 In relation to whether or not anyone else was involved. As a part of this same conference and considering what we had discovered we actually commented that we were open to the potential for there to be other defendants and in fact part of our discussion was around the merits of getting a Production Order to see if it would reveal more to help our understanding. Our NTFIU, MPS Legal services and Louis Mably were actioned to explore that further, particularly around what we could legitimately ask for in such an order, but the view of the meeting was that, that process may well be drawn out by NOTW and that if possible we would seek disclosure through
p54, lines 18-25, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-29-February-2012.pdf 159 p55, lines 16-23, ibid 160 p56, lines 1-24, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-29-February-2012.pdf 161 p56, lines 13-21, ibid 162 pp109-110, lines 20-7, Keir Starmer QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/ Transcript-of-Morning-Hearing-4-April-2012.pdf; Note not published 163 Keir Starmer QC, succeeded Lord Macdonald as the Director of Public Prosecutions on 1 November 2008 164 p110, lines 19-23, ibid 165 note not published; p111, lines 4-9, ibid
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written request to their legal department seeking cooperation with our investigation. The latter is what happened 3.11 Mr Starmer declined to comment on this segment of DCS Williams note.166 Subsequently, Mr Mably stated that he broadly agreed with it.167 Mr Perry explained that there were two issues relating to the question of a production order: the first was whether there was any basis for obtaining evidence generally by way of a production order, and the second was whether a production order should be sought to obtain evidence of payments made by Mr Goodman to Mr Mulcaire.168 Mr Perry emphasised that he did not think that the minds of anyone were closed at that stage169 and it is certainly accurate that, following the conference, Mr Mably did, in fact, draft an application for a production order.170 I do not believe that DCS Williams sought to downplay the number of victims, as has been suggested, still less that he misled counsel in any respect. It is right that DCS Williams told counsel that there was no evidence that journalists other than Mr Goodman were involved, when in reality there was inferential and circumstantial evidence,171 but this was in the context of the common understanding that counsel was enquiring into whether there was sufficient evidence to charge any further suspects. DCS Williams did not hide from counsel his suspicions that others were involved, on the contrary, they were openly discussed: he sought advice from counsel on whether a production order could be obtained in order to secure evidence to substantiate those suspicions. DCS Williams was plainly open to pursuing investigative avenues with a view to supporting the hypothesis that others were involved. It would be unfair to suggest that, in some way, he was setting out to restrict the investigation and avoid casting the net beyond Mr Goodman and Mr Mulcaire. Furthermore, no evidence was concealed. At the very least, counsel and the CPS knew of the evidence supporting the charges that became counts 16-20 and were aware of the corner names which could implicate other journalists (because of counts 16 to 20). Counsel were given a copy of the blue book; further, albeit for the specific and limited purpose of reviewing the unused material,172 Mr Mably was given access to all the documents seized, including all the Mulcaire papers. It is also clear from the notes of the conference that counsel gave some consideration to the technical legal question which arose under RIPA namely whether it was necessary to prove that the unlawful interceptions had taken place before the voicemail messages had been listened to by their intended recipients. It is less clear, however, precisely what advice was
3.12
3.13
3.14
p111, line 20, ibid note not published 168 para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-David-Perry-QC.pdf 169 p18, lines 5-20, David Perry QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-4-April-2012.pdf 170 Draft application not published 171 This is addressed below 172 This issue of the review of unused material is raised at different times and it is important to understand precisely what is involved in the exercise and what can be derived from it. The purpose of any review of unused material (conducted in this case by junior counsel, Mr Mably) is not to look for evidence that might implicate others (in this case, others at NI or elsewhere), but to fulfil the disclosure obligations imposed on the prosecution by the Criminal Procedure and Investigations Act 1996 (CPIA). S3 (Initial duty of prosecutor to disclose) provides that: The prosecutor must (a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, or (b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a)
167
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given, and with what emphasis. That said, Mr Perry gave clear evidence to the effect that he did not advise that the narrow view of the law was correct. In short: 173 well, Im confident that that was not the approach that we took because it wouldnt be consistent with the terms of the indictment that was originally settled, and I think that the view that Mr Mably and I took was that what Lord Woolf had said in the Ipswich Crown Court case174 certainly provided an arguable basis for someone to contend that the narrow view was correct, but we thought that we should proceed on the broader view, and if the point were taken against us, we could meet it in a number of ways, because it was about making sure that we didnt lose the case overall, and we could meet it in a number of ways [a]nd in any event, the conspiracy charge could outflank any such argument. 3.15 So it came about that, in due course, counts 16 to 20 of the indictment, which alleged substantive offences under RIPA solely against Mr Mulcaire, were drafted by counsel. As Mr Perry explained in evidence, he could not possibly have taken the narrow interpretation of the law to be correct since, in relation to counts 16 to 20 there was neither evidence nor basis for saying that the message had been listened to by an interceptor before it had been heard by the intended recipient.175 Further, Mr Perry did not advise the police to obtain Vampire data in relation to counts 16 to 20. Put simply, Mr Perry is correct. It is simply inconceivable that he (or any counsel instructed by the Crown to prosecute allegations of crime) would have prepared an indictment on the premise of a legal interpretation which they knew to be incorrect. I have no doubt that Mr Perry gave the advice in the terms summarised by him in his evidence. Whether DCS Williams took away this message from this conference is less clear. In his witness statement for the purposes of the judicial review, DCS Williams said that counsel advised that counts 16 to 20 should be included in order to test the law.176 It is apparent, however, as will be seen from the various notes, briefings and memoranda that he produced in 2009 that, at that stage at least, he was under the impression that counsel had been advising that the narrow interpretation of the law was correct. It is a safe assumption that DCS Williams misunderstood, or misremembered, what counsel had advised in August 2006; it would not be safe or correct to conclude that DCS Williams deliberately mis-stated counsels advice on these subsequent occasions. Regardless of the extent to which both Mr Perry advised clearly and the advice was properly understood, following this conference, the police made no attempt to obtain technical evidence in relation to what became counts 16 to 20 which would have enabled the case to be proved on the narrow view of the law. Nor is there any contemporaneous evidence to show that counsels advice caused surprise or consternation in the police camp. From that point therefore, the advice previously given by the CPS had no bearing upon the way
3.16
3.17
p21, lines 3-22, David Perry QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-4-April-2012.pdf. This evidence contradicts what Mr Perry recorded in his advice dated 20 July 2009 which said in terms that it was necessary to prove that the message was intercepted before it was accessed by the intended recipient. To the suggestion that this might have been the advice he gave in 2006 Mr Perry said that: if I did in this document give the impression that the narrow view had been adopted then that is incorrect p38, lines 17-19, David Perry QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of-Morning-Hearing-4April-2012.pdf. The reason why Mr Perry gave different advice is considered at paras 8.147-8.150 below 174 R (NTL Group Limited) v Ipswich Crown Court and another [2002] EWHC 1585 (Admin) 175 pp22-23, lines 20-1, David Perry QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-4-April-2012.pdf. 176 para 31, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip-Williams.pdf
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the prosecution was prepared and advanced.177 It is also worth adding that, at the same conference, counsel advised that the appropriate charges should be under RIPA; offences under the CMA (which had no technical problems) were not pursued so as to ensure a simpler presentation to a jury.178 3.18 The last topic discussed was the question of confiscation pursuant to s6 of the Proceeds of Crime Act 2002. Without setting out the detail of the relevant statutory provisions, a confiscation order, in essence, requires a convicted defendant to pay a sum of money representing the level of his or her financial benefit from his or her criminal conduct. The police wished to contend for a substantial benefit figure based on the monthly retainer on the basis that it was part and parcel of Mr Mulcaires criminal enterprise.179 However, given NIs claim, through Burton Copeland, that the monthly retainer paid to Mr Mulcaire did not relate to the matters that were the subject of charges,180 Mr Perry advised that the confiscation proceedings should focus on the cash payments, which amounted to 12,300.181 Mr Perry explained that the short point was that if Mr Mulcaire was doing legitimate work it was difficult to argue that it was as a result of or in connection with the offending. Mr Perry agreed that it was his decision that this was the appropriate approach to take.182 It is convenient to state here that ultimately the Crown Court made a confiscation order for 12,300. Before passing from the information placed before Mr Perry and the advice that he gave, it is appropriate to refer to the for Neville email. When giving evidence, Mr Perry was asked whether or not he saw this email at this conference or at any stage before 26 January 2007 (when Mr Goodman and Mr Mulcaire were sentenced). Mr Perry said in evidence that he did not have any recollection of seeing it,183 and he did not shift his ground when shown a note of a much later conference on 1 October 2010 which suggested that he saw this email after the case papers relating to Mr Gordon Taylor had been prepared for trial.184 It is right that the email formed part of the unused material but Mr Perry was not asked to examine that material and would not have been expected to do so absent specific instruction. Although it may not advance the issue very far, I conclude that Mr Perry probably did not see the for Neville email earlier than his recollection.
3.19
Victims not associated with the Royal Household

3.20 Following the conference, the investigating officers set about contacting victims to ascertain whether they would be willing to provide evidence in support of the prosecution.185 DCS Surtees gave evidence that one of these victims was Tessa Jowell and, furthermore, that she
It equally had no bearing on the later decision not to broaden the investigation, which was taken for other reasons. See paras 5.22-5.26 below 178 para 32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip-Williams.pdf 179 pp31-32, lines 25-10, David Perry QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcriptof-Morning-Hearing-4-April-2012.pdf 180 In due course Mr Mulcaire adopted the position that the payments under the retainer were for legitimate work and that the payments in respect of the unlawful interceptions were those he received under the pseudonym of Alexander; p31, lines 15-19, David Perry QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-4-April-2012.pdf. In the light of the ongoing investigation and prosecutions, the accuracy of this proposition cannot further be examined 181 p31, lines 1-5, David Perry QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-4-April-2012.pdf 182 pp31-32, lines 19-24, ibid 183 p27, lines 1-6, ibid 184 pp27-28, lines 11-12, ibid; Note not published 185 para 56, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-Keith-Surtees.pdf
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declined to assist.186 Ms Jowell strongly disputed that she was unwilling to assist with the prosecution. She provided her account in these terms:187 I remember very clearly the conversation, which, as I say, took place on holiday. I happened to be by the swimming pool with very close friends that I was on holiday with. The conversation didnt take very long, but I am absolutely clear that I sought clarification about what further I should do, expressed my willingness to help in any way that I could but was assured that at that stage there was nothing further that I needed to do. I would also say that I was a secretary of state and a privy councillor. It would have been absolutely incumbent on me, were I asked to co-operate with an inquiry, to agree to. My principal private secretary, who is a civil servant, confirmed my willingness to help, as too the two friends that I was on who I recounted this too, are also abundantly clear about the account of the conversation that I gave them. I was telephoned again by the police to be told that a prosecution was going to be brought against Clive Goodman and Glenn Mulcaire. I asked if I needed to provide a statement or further assistance. I cant remember the precise word that I used, but it was essentially an offer of any assistance with the inquiry, and was told very clearly that I wouldnt be needed as a witness because they had witnesses from the royal household who would support the prosecution. 3.21 This is not an issue that is directly relevant to my Terms of Reference but I find the evidence given by Ms Jowell on this point to be compelling. It is not necessary to decide how DCS Surtees came to recall otherwise save that I do not conclude that he was deliberately seeking to minimise the impact on NI: had he wished to do that, he would not have spoken to her in the first place. In the meantime, in response to the request to identify any customers whose voicemail boxes had been called by the suspect numbers, Vodafone emailed DI Maberly, on 29 August 2006, with a spreadsheet of calls made to 61 unique voicemail access numbers by Mr Goodmans home landline and Mr Mulcaires office landline. A large number of those on the list were celebrities and well-known public figures, whilst others appeared to be company names.188 On 30 August 2006 DI Maberly emailed Orange to ask if there was an indication of interception of the voicemail messages of six named individuals, including Simon Hughes. He also sent an email to Vodafone asking if anyone had listened to the voicemail of nine named people.189 On 10 October 2006, O2 responded to the request to identify customers whose voicemail boxes had been called by the suspect numbers by sending DI Maberly a spreadsheet setting out the number of times that the 93 customers concerned had been called by the suspect numbers.190 In the light of the information that became available, an appropriate number of victims (additional to those emanating from the Royal Household) were identified as the named victims for the charges that were represented by counts 16 to 20 of the indictment directed at Glenn Mulcaire (and not part of the conspiracy count which involved Clive Goodman). They were chosen, essentially, because of the high volume of frequency of calls (along with
3.22
3.23
Loc. cit pp60-63, lines 23-1, Tessa Jowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-21-May-2012.pdf 188 para 39, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DI-Mark-Maberly.pdf 189 Emails not published 190 Not published
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their duration) to the unique voicemail access numbers by Mr Mulcaire.191 The subjects of these five charges were Max Clifford, Skylet Andrew, Graham Taylor, Simon Hughes and Elle Macpherson. 3.24 In the light of all the circumstances, it is necessary to deal with one further discussion with a potential victim of multiple interceptions. DCS Williams gave evidence that, in early September 2006, the police contacted Rebekah Brooks (then editor of The Sun) to notify her that she was a potential victim of voicemail interception and to ascertain whether she wanted to make a formal complaint in that capacity.192 An email, dated 15 September 2006, sent by Andy Coulson to Tom Crone after this meeting, which set out what Mrs Brooks had been told by the cops, has generated a number of concerns.193 On the face of the email, it appeared that the police had given Mrs Brooks details of the prosecution strategy over and above that which any other victim of crime could expect to be given and it is suggested that, in so doing, the police were improperly alerting her to the state of the investigation by the MPS, inviting her to take action internally. Further, the last sentence of the email (They are going to contact RW today to see if she wishes to take it further) could be interpreted as meaning that the police were asking her whether she wanted the police to take further the investigation into others within NI.194 Again, I can well understand how this second hand summary of the conversation, reduced into an email, can give the impression of collusion but, having heard DCS Williams evidence on this issue, I am satisfied that Mrs Brooks was contacted by the police because she, too, had been a victim of extensive voicemail interception (with her voicemails having been accessed up to twice a week). I also accept that information was passed to Mrs Brooks not as a result of an improper relationship with the police but with a view to her making a formal complaint and consenting to being part of the prosecution.195 This is the context in which one must view the final line of the email. As DCS Williams said: This is purely: you are a potential victim. Would you like to join our prosecution?196 The same email also referred to Mr Mulcaire receiving payments totalling over 1 million. In evidence, DCS Williams said that the figure of 1 million was not known to him or his investigation team.197 Since the 1 million figure is not supported by evidence available contemporaneously or subsequently it is simply not clear where this figure came from. Again, the present investigation and prosecution precludes any further investigation of this issue. Fitting within the general chronology, it is relevant to note two engagements between NI and senior officers of the MPS. The first was on 19 September 2006 when Lord Blair, with Mr Fedorcio, met Andy Coulson. Whilst there could well be a concern that this meeting provided the opportunity for the exercise of inappropriate influence over the police investigation (and perhaps rather more thought should have been given to the perception that could result from the meeting), there is not the slightest evidence that this was a reality. As I have set out above, Lord Blair played no part in the decision-making process; his involvement did not go beyond receiving limited briefings from Mr Hayman and Mr Clarke. The second was on
3.25
3.26
3.27
p6, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-14.pdf pp102-103, lines 17-4, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcriptof-Morning-Hearing-29-February-2012.pdf 193 Email not published 194 pp34-35, lines 15-10, Simon Hughes, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcriptof-Morning-Hearing-28-February-2012.pdf 195 pp92-93, lines 24-25, DCS Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/ Transcript-of-Morning-Hearing-29-February-2012.pdf 196 p103, lines 3-4, ibid 197 p92, lines 5-8, ibid
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26 October 2006 and consisted of a two hour, early evening, meeting between Mr Hayman and Neil Wallis. The problem of perception (and the question of the extent to which that perception was considered) recurs. Again, there is no evidential basis for concluding that this meeting impacted in any way on the police investigation.
The approach of Burton Copeland

3.28 In order to obtain relevant evidence from NI, the CPS advised the police to enter into correspondence with them (though Burton Copeland). This was because the legislative provisions for obtaining a production order, which would require NI to produce journalistic material to the police or provide the police with access to it required other methods to have been tried without success or that it be established that such methods were bound to fail.198 Thus, a court would be unlikely to make a production order, requiring a person or organisation to hand over such journalistic material, if it were satisfied that the person or organisation in possession of the material appeared to be cooperating with the police. In the light of the fact that NI had instructed Burton Copeland to respond to police requests, the officers sought their cooperation and assistance, through Burton Copeland, in relation to a number of evidential matters. The investigators were keen to identify who would have used the hub phone at the NoTW that had been used hundreds of times to call the voicemail boxes of individuals not associated with the Royal Household.199 DI Maberly approached Vodafone who told him that he would have to get that information from the NoTW.200 Mr Bristowe (the prosecutions telephone expert) advised DI Maberly that no large firm would have unaccounted for billing, because it would want to monitor the use of the phone systems by staff, to detect any abuses. The police therefore had an expectation that NI would be able to identify the user of the hub phone in question.201 DCS Surtees tasked DI Maberly with writing to the NoTW for the purposes of ascertaining who would have used the hub phone and obtaining further evidence against Mr Mulcaire and Mr Goodman, but also to gather evidence of the involvement of other journalists or editorial staff in the conspiracy with Mr Mulcaire.202 On 31 August 2006 DI Maberly attended Burton Copelands offices and made a number of requests for information.203 That same day Burton Copeland wrote a letter to the police, apparently stating an intention to cooperate fully with all their reasonable requests for information:204 On behalf of my clients, Newsgroup Newspapers Ltd, I would wish to make it plain that in connection with the enquiries that you are presently conducting and which are referred to in the Application under the Schedule 1 of the Police and Criminal
See s. 9(1) and Schedule 1 to PACE and, in particular, para 2(b); para 90, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/03/Witness-Statement-of-Peter-Clarke.pdf 199 p54, lines 2-12, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcriptof-Afternoon-Hearing-29-February-2012.pdf. This use of the hub phone also fuelled DCS Surtees suspicion that journalists other than Mr Goodman were involved in the conspiracy 200 pp83-84, lines 24-4, Mark Maberly, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 201 pp84-85, lines 7-4, ibid 202 para 68, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-Keith-Surtees.pdf 203 para 41, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DI-Mark-Maberly.pdf 204 p1, John Yates, https://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-132.pdf
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E
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3.32
302
Evidence Act (PACE Application) that my clients intend to provide such material as you or your colleagues might reasonably require from them in connection with your enquiries. 3.33 In that letter Burton Copeland referred to the PACE application (the application for a production order drafted by Mr Mably) and the fact that the police sought: all paid cheques, credit/debit slips, mandates, statements of accounts, inter-account and telegraphic transfers, any other vouchers in relation to the following financial accounts. Account numbers sort code or payment to any other bank accounts held in the name of Glenn Mulcaire, Nine Consultancy Ltd or Nine Consultancy UK Ltd and any cash payments made by or on behalf of News International or Newsgroup Newspaper to Glenn Mulcaire from 1 January 2005 present [sic].205 Burton Copeland enclosed a file labelled Newsgroup International Payments to Nine Consultancy Ltd which they asserted contained the requested information and included in particular:206 1. A schedule that has been created from the records maintained of all payments to the accounts referred to in the PACE Application; 2. The appropriate BACS Telecom Acceptance Advice relating to payments to be included in the payment schedule; 3. The redacted payment schedule which highlights each payment to Nine Consultancy Ltd; The appropriate copy invoice in respect of each payment included in the schedule referred to in 1 above. 3.34 DI Maberly also followed up the meeting with a letter, which he delivered to Burton Copelands offices on 7 September 2006.207 In that letter he confirmed what he had requested.208 Those requests included:209 (a) (b) (c) A floor plan to include the locations of the telephone extensions in Mr Goodmans office; Details of the phones used regularly by Mr Goodman (i.e. the number of the phone on his desk or any mobile issued to him by the company); Itemised billing for phones used regularly by Goodman (i.e. the phone on his desk and any other mobile phone issued to him) for the period of 1st December 2005 to 8th August 2006; Records of any work completed by Mr Mulcaire/Nine Consultancy for Mr Goodman or other editors/journalists. Records of any work completed
(d) (e) 3.35
DI Maberly stated in the letter that:
205 206
Loc. cit pp1-2, ibid 207 para 41, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DI-Mark-Maberly.pdf 208 p3, John Yates, https://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-132.pdf 209 Loc. cit
303
The investigation is attempting to identify all persons that may be involved including any fellow conspirators. Therefore we require the telephone numbers of persons called before and after relevant unlawful calls to the voice mailboxes. 3.36 On 15 September 2006 DI Maberly hand delivered a further letter to Burton Copeland which included the following:210 During the search of Mr Goodmans offices at News International he identified the computer used by him (situated on his desk) and a safe also used by him (situated under his desk). These items were not seized or searched but were subject to a retention request. In relation to these two items I would like to be provided with a copy of information held on computer (including any mainframe database accessed from the desktop computer) and any information held in the safe that relates to the following; Material relating to any mobile telephone numbers that may [sic] connected to the interception of voicemail accounts (e.g. written notes, data files, cassette/ digital recordings etc)
E
3.37
Material relating to any voicemail(s) that may have been listened to (e.g. written notes, data files, cassette/digital recordings etc) Evidence of contact between Mr Clive Goodman, Mr Glenn Mulcaire, Mr Paul Williams, Nine Consultancy and any others (whether directly or indirectly employed by News International) relating to the interception of voicemail(s). Burton Copeland had drafted a letter dated 14 September 2006, which they gave to DI Maberly when he visited their premises on 15 September 2006. It stated the following:211 Newsgroup Newspapers are anxious to provide all material reasonably required in respect of your investigation into voicemail interception offences. We stress, however, that the procedure under Part 2 of the 1984 Act is a procedure designed to produce documentation or other material in the possession of an individual. It is not a procedure designed to elicit answers other than those contained within such material. In fact, very little documentary or other material in relation to Mr Mulcaire, Nine Consultancy Ltd or Mr Goodman exists. This is entirely consistent with normal business practices in relation to the use of such consultants. Attached to this letter are copies of all documents held by Newsgroup Newspapers falling within the terms of your request. This comprises copy documentation relating to the contract of employment between Nine Consultancy Ltd and NOTW. Extensive searches have revealed the existence of only one piece of paper, enclosed herewith. No documents exist recording any work completed by Mr Mulcaire, monitoring of Mr Mulcaires return of work, reporting structures or any persons for whom Mr Mulcaire may have provided information. There is no floor plan. The telephone system installed at Newsgroup Newspapers does not provide an itemised breakdown in respect of any particular extension number Newsgroup Newspapers wishes fully to assist your investigation and does not require any formal Court Order for the provision of any material. They are, however, entirely satisfied that the material to which you are entitled is limited and that you
210 211
p7, ibid pp5-6, ibid
304
are now, along with material previously submitted, in possession of all relevant documentation 3.38 It is interesting to note that Burton Copeland were precise in seeking to confine the entitlement of the police to documents in the possession of an individual as opposed to documents held by NI generally. In my judgment this is an artificial and inapt distinction: by way of example, there must have been an internal telephone directory for the NoTW and documentation that could have led the police (perhaps through the telephone network if the records were not kept) to trace which extensions were dialling which numbers. DCS Williams, DCS Surtees and DI Maberly all formed the impression that whilst Burton Copeland were protesting that they were cooperating, the reality was the opposite.212 In evidence DI Maberly agreed that he was very suspicious that he was being fobbed off.213 After 15 September 2006, no further documents were produced by Burton Copeland. Ultimately therefore, NI provided the MPS with extremely scant information. The MPS describes this, correctly in my judgment, as a veneer of cooperation. Despite their protestations to the contrary, NI were not helping the police with their enquiries. It is relevant that once NI decided, in January 2011, fully to co-operate with the MPS, that is exactly what happened and the investigations that have become Operations Weeting, Elveden and Tuleta (with subsidiary operations associated with them) has been the result. While signalling the intention of NI now to place itself in the position of demonstrating that it takes compliance with the criminal law extremely seriously, it undeniably casts light on what had happened previously. I am not in a position to judge what part, if any, Burton Copeland played in the approach to the police investigation in 2006, what their instructions were or the advice they gave because NI has not waived the legal professional privilege which attaches to this material. As a result, the public can only know what Burton Copeland did and not why they did it. Rupert Murdochs evidence was that when Mr Goodman was arrested he was told, probably by Les Hinton, then the Executive Chairman of NI, that NI was co-operating with the police.214 In support of the contention that NI was cooperating, Rupert Murdoch referred to appointing a special law firm to look into this and to aid our co-operation with the police215 When he was told, during his evidence, that the Inquiry had heard evidence that the solicitors firm concerned provided limited documentation216 that did not represent the position at all and that, one way or another, NI was being obstructive Rupert Murdoch said: That shocks me deeply, and I was unaware of it and Ive not heard of it until youve just said that.217
3.39
3.40
3.41
para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DI-Mark-Maberly. pdf; p66, lines 9-13, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf and p82 lines 19-21, Philip Williams, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/02/Transcript-of-Morning-Hearing-29-February-2012.pdf 213 p85, lines 4-15, Mark Maberly, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 214 para 170, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statementof-Keith-Rupert-Murdoch2.pdf 215 p21, lines 17-18, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-26-April-2012.pdf 216 It was put to Rupert Murdoch in error, contrary to para 2.83 and para 3.33 above, that Burton Copeland only provided one document. The documentation provided was nonetheless extremely limited and unrepresentative of the true position 217 p22, lines 6-7, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-26-April-2012.pdf
212
305
3.42
This raises two issues about local management at NI, its internal governance and its relationship with News Corporation. First, if Rupert Murdochs evidence is correct, it appears that there was a lack of full transparency between the local management at NI and senior management at News Corporation or, alternatively, a very different understanding of the meaning of the word co-operation. Second the approach taken by NI is far from what might be expected of a well-run corporation. Mr Clarke described a closing of ranks by NI and said that this was unusual for a major company where full co-operation would be the norm.218 An organisational culture that is founded on integrity and honesty would require not only full co-operation with law enforcement, but also a determination to expose behaviour that failed to comply with the law. That would normally be achieved through a thorough internal investigation of any allegation, unaffected by the legal constraints that the police might face, in order to ensure that any wrongdoing in the company was uncovered, stopped and dealt with appropriately. What happened at the NoTW in relation to voicemail interception in this context is particularly informative about the culture that pertained both within the corporate and editorial operations.
The report of the High Tech Crime Unit
3.43
On 23 November 2006, pursuant to a task set by DCS Surtees, the High Tech Crime Unit of the Directorate of Professional Standards at the MPS produced a report219 setting out the results of the examination of the computers and other storage media seized during the August searches.220 The examination revealed a computerised record of approximately 300 names, addresses, dates of birth, mobile phone numbers and additional information. Many of the names have been redacted to protect the privacy of the individuals concerned, but the unredacted names include: Maria, Charlotte and James Church; Max Clifford; Ashley Cole; Stephen J. Coogan; Cornelia Crisan; George Galloway; Ryan Giggs; James Hewitt; Ulrika Jonsson; Jude Law; Sadie Frost; Elle McPherson; Mark Oaten and Brian Paddick. The investigating officers were concerned to discover that within the report were the details of people who had been given new identities as part of the witness protection programme.221 The extreme sensitivity of this information does not require elaboration. Equally seriously, at the least, it gave rise to the possibility that police officers had been providing information to Mr Mulcaire. Mr Mulcaire was not asked about this in interview and Mr Clarke was not made aware of it. DCS Surtees instructed DI Maberly to contact the witness protection unit, provide them with the list of names and ask them to take whatever action they considered necessary.222 When DI Maberly did so: it quickly became apparent that contained within were names of interest to [the unit].223 The SO13 officers did not know what action was taken by the witness protection unit; they left the matter with that unit because it was best placed to decide upon and take
3.44
3.45
p33, lines 5-13, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-1-March-2012.pdf 219 Not published 220 para 50, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DI-Mark-Maberly.pdf 221 para 51, ibid 222 p72, lines 12-17, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 223 para 51, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DI-Mark-Maberly.pdf
218
306
the appropriate remedial action.224 Mr Clarke agreed that this was the correct way of dealing with the matter.225 3.46 The report of the High Tech Crime Unit included the following statement: It is also believed attempts may have been made to corrupt serving police officers and misuse the Police National Computer. It is argued by the Core Participant Victims that the apparent failure to act on this adds to the impression that there were areas of investigation which were highly sensitive and which made the MPS unwilling to probe further. Although I understand the concern, it would not be appropriate for me to go further. Suffice to say, the current criminal investigation continues and my determination not to prejudice that investigation has meant that further detail has not been explored in the evidence. The points that I have made about the individual officers responsible for the conduct of Operation Caryatid are not affected and remain, even if there was some additional thread which could have been followed.
4. The outcome to the prosecution

The criminal proceedings
4.1 The indictment brought against Mr Mulcaire and Mr Goodman contained the following 16 counts: Count 1: Against both, conspiracy to intercept communications contrary to s1(1) of the Criminal Law Act 1977; Counts 2, 3, 7, 10 and 13: Against both, interception of the voicemail messages of Helen Asprey contrary to s1(1) of RIPA; Counts 4, 6, 8, 11 and 14: Against both, interception of the voicemail messages of Jamie Lowther-Pinkerton contrary to s1(1) of RIPA; Counts 5, 9, 12 and 15: Against both, interception of the voicemail messages of Paddy Haverson contrary to s1(1) of RIPA; Counts 16-20: Against Mr Mulcaire only, interception of the voicemail messages of Max Clifford, Skylet Andrew, Graham Taylor, Simon Hughes and Elle Macpherson respectively contrary to s1(1) of RIPA. 4.2 Mr Perry explained that counts 2 to 15 were substantive allegations intended as an alternative to count 1 which charged the underlying criminal conspiracy; in relation to all the substantive counts, there was not necessarily the evidence available to prove that the voicemails had been listened to before their intended recipients.226 Counts 16 to 20 were individual substantive charges intended to reflect the further criminality. On 29 November 2006, at the Plea and Case Management hearing conducted at the Central Criminal Court, Mr Goodman and Mr Mulcaire pleaded guilty to the main counts on the indictment. Although it might be legitimate to conclude that the lawyers acting for the men had
4.3
p73, lines 3-5, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 225 p51, lines 13-16, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-1-March-2012.pdf 226 p45, lines 19-25, David Perry QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-4-April-2012.pdf
224
307
no confidence in the possible success of any argument relating to the correct interpretation of s1 of RIPA, the fact is that it was simply never tested. On 26 January 2007, Mr Justice Gross sentenced Mr Goodman and Mr Mulcaire to four and six months imprisonment respectively. 4.4 At the sentencing hearing, during the course of his plea in mitigation, counsel for Mr Mulcaire asserted that his client was working for others at NI in relation to the interceptions which formed the basis of counts 16 to 20. He said, in terms: This information would have been passed on not to Mr Goodman I stress the point but to the same organisation.227 Although this has been a matter of some debate, the point has already been made that Mr Goodman had no specific interest (perhaps with some limited exceptions) in the nonRoyal material, and it is clear that the evidential links between the two men which had been present for the Royal interceptions were not available for the others. Yet, Mr Mulcaire must have been working for someone. Mr Justice Gross picked up on this submission in his own sentencing remarks. He said: As to Counts 16-20, you had not dealt with Goodman but with others at News International.228 Although Mr Perry rightly pointed out that the judge did not reach this conclusion as a result of any submission he had made during the course of opening the case that morning, he readily accepted that the judge was not simply relying on the submissions of Mr Mulcaires counsel but also on a bit of common sense added in.229 It is right to observe that Mr Perry added in his witness statement that: reading the transcript now does not convey the implication that other individuals were necessarily involved in unlawful interception (as opposed to receiving information). 230 This may be right, but again common sense would strongly indicate that the other individuals were aware of the source of the information they had received from Mr Mulcaire and it is difficult to postulate that Mr Mulcaire was simply offering information without being encouraged or prompted. Mr Justice Gross also referred in his sentencing remarks to the fact that Mr Goodman had offered by way of mitigation that he operated in an environment in which ethical lines are not clearly defined or observed.231 From the perspective of the management at NI, the sentencing remarks ought to have raised serious alarm bells that there may have been other journalists in the newsroom engaging in illegal or unethical activity; what otherwise should have been needed to launch a full scale review into every aspect of the work that Glenn Mulcaire had done for the NoTW?
4.5
4.6
4.7
5. Subsequent operational decisions

5.1 One of the most serious allegations against the police relates to the deliberate decision effectively to shut down Operation Caryatid when it is argued that there was clearly much more that could have been uncovered. It is suggested that the decision not to pursue further investigations could have been affected by the relationship between the officers of the MPS and NI or, in other words, had not been taken in good faith or for good operational reasons. Similar concerns (examined in the next section) deal with the strategy adopted to deal with the aftermath of the investigation, particularly in relation to victims or potential victims.
See sentencing remarks of Mr Justice Gross in R v Glenn Mulcaire and Clive Goodman, 2007, Central Criminal Court p179H, See sentencing remarks of Mr Justice Gross in R v Glenn Mulcaire and Clive Goodman, 2007, Central Criminal Court 229 p36, lines 3-7, David Perry QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-4-April-2012.pdf 230 para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-David-Perry-QC.pdf 231 See sentencing remarks of Mr Justice Gross in R v Glenn Mulcaire and Clive Goodman, 2007, Central Criminal Court
228
227
308
5.2
In the circumstances, it has been necessary to investigate in detail the circumstances in which the police reached the decision not to take Operation Caryatid further. This involves an understanding of the police operational background at the time of the investigation, and an analysis of the evidential issues concerning the police along the possible next steps that could have been taken.
The background
5.3 Police resources are finite and the decision not to widen the Operation Caryatid investigation cannot properly be understood without a full understanding of the operational context at the time. More specifically, for what had been SO13, whose primary commitment was to counter terrorism, the issue was the scale and immediacy of the threat from terrorism at the time and the massive pressure on resources that it entailed. It is of such importance that it is worth quoting extensively from the statement made by Mr Clarke:232 72 Throughout much of 2002 and running into 2003 an operation called Springbourne taught us that there was a real and immediate threat within the UK from Islamist terrorists 73. During 2003-2004 there was an accelerating tempo of terrorist investigations There were many other strands of intelligence that showed the threat to the UK from Islamist terrorism was not only a reality, but growing in intensity. 74. In 2004, there was a major escalation in our understanding of the scale and nature of terrorist plotting in the UK with the discovery, early in the year that a group of British citizens were planning to make and detonate a large bomb. This required what was then the largest ever UK surveillance operation to control the threat posed by the plotters and to gather evidence to convict them. This operation was called Operation Crevice 75. Later in 2004, there was another major investigation called Operation Rhyme which dismantled a terrorist network led by a veteran jihadist called Dhiren Barot, whose ambition was to mount attacks, including the use of radiological devices, both in the US and the UK. Both of these cases led to multi-defendant prosecutions which in all took over three years to come to a conclusion, and devoured huge amounts of investigative resource throughout that time. 76. These cases and others showed a clear intention on the part of terrorists to attack the UK mainland to try to kill as many people as possible whenever possible 78. In July 2005, despite the best efforts of the UK counter terrorist community, London was twice attacked to devastating effect. The subsequent criminal investigation was the largest ever carried out in the UK, drawing in detective resources from across the country, and in effect lasted right through until the Inquest into the deaths of the victims of the 7/7 attacks was concluded in 2011. 79. By early 2006, at exactly the time Operation Caryatid was developing, Operation Overt began. This was the next in line of what seemed like an interminable series of potentially devastating plots. This one turned out to be a plan to blow up, simultaneously, a number of transatlantic airliners en route from the UK to the USA As with other major terrorist cases, the prosecutions in Operation Overt took a long time to come to fruition. In fact they took some 4 years and were spread over 7
232
http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Peter-Clarke.1pdf
309
separate trials. This all needed a massive commitment of officers from the Counter Terrorism Command (SO15). 80. The impact of this was that those of us who were charged with protecting the public from the effects of terrorism were more than fully committed on matters that directly affected the safety of the British public. Not only were we continually borrowing colleagues from other parts of the MPS, we also drafted in large numbers of officers from across the country. The impact of this on other policing operations was at times severe. For instance, during the surveillance operation in support of Operation Crevice in early 2004, every available surveillance team from within the MPS and indeed beyond was used on the enquiry. Investigations into drug trafficking, murder and other serious crime, including internal corruption enquiries, came second to the need to protect the public from terrorism. 81. Despite all the support that was received throughout these years, and particularly after the attacks on London in 2005, by the time Goodman and Mulcaire were arrested in August 2006 the Anti-Terrorist Branch (SO13) had some 70 live terrorist cases on its books, but insufficient resources to investigate them all. There was prioritisation even with life threatening terrorist cases, and that is the context within which the decisions that were taken to investigate possible invasions of privacy under Operation Caryatid must be considered. 5.4 Elaborating on this statement, it is clear that, since 2004, there had been repeated attempts by Al-Qaeda networks to commit mass casualty suicide attacks. These included the fertiliser bomb plot (Operation Crevice) and Dhiren Barot and the dirty bomb plots (Operation Rhyme).233 On 7 July and 21 July 2005, there was a series of coordinated suicide terrorist attacks and follow up attacks. Operation Crevice alone used every single surveillance team in London and most of those from the areas around London and Mr Clarke had borrowed over 1,000 officers from other forces to support the investigation into the attacks on 7 July 2005. By January 2007, 200 highly experienced and specialised officers continued to be on loan for this work.234 Mr Hayman described in evidence the terrorist threat as unprecedented.235 Lord Reid, endorsed the evidence of the police, saying that the scale of the terrorist threat and ensuing counter-terrorist operations had been well set out by others who had testified.236 He explained that the threat level of a terrorist attack during 2006 varied only from the second highest level, Severe, to the highest, Critical, where an attack was deemed likely and imminent. He said the great fear of a terrorist attack at that time was superseding everything else.237 This background is critical to an understanding of the operational context in which Mr Clarke had to consider whether and, if so, to what extent the investigation should continue beyond the very targeted prosecution of Mr Goodman and Mr Mulcaire. Resources, however, were not the only problem.
5.5
5.6
p24, lines 14-21, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-1-March-2012.pdf 234 p26, lines 17-25, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-1-March-2012.pdf 235 p137, line 21, Andy Hayman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 236 para 31, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Lord-Reid.pdf 237 p153, lines 6-9, Lord Reid, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-23-May-2012.pdf
233
310
The evidential issues

5.7 By mid-September 2006, the police had tried, without success, to obtain evidence from NI to support their strong suspicion that NoTW staff (other than Mr Goodman) were involved in a conspiracy to intercept voicemail messages. The investigators, including DCS Williams,238 did not dispute, however, that they had material that implicated other journalists and investigative leads that could have been followed. The following is a stock-take of the matters the investigators had specifically identified by that time. The 11,000 pages of documents seized from Mr Mulcaire, taken together with the pattern of behaviour demonstrated by the call data obtained, created a picture of a trade craft, of someone who was building up the means unlawfully to access voicemail messages (and that in some cases he had utilised those means). There was an inference that the corner names (so described because they were written in the corner of Mr Mulcaires notes) were those who had either instructed Mr Mulcaire or those who were the intended recipients of the information, or both. Not only did Clive appear as a corner name in relation to the Royal Household voicemail message interceptions but there were corner names associated with counts 16 to 20 on the indictment. The hub phone at the NoTW had been used hundreds of times to call the voicemail boxes of individuals not related to the Royal Household.239 The phone records of Mr Mulcaire taken together with his papers (in which he had recorded the mobile phone numbers of other journalists) demonstrated that Mr Mulcaire had made calls to journalists other than Mr Goodman.240 The lack of cooperation on the part of NI with the investigation (both by interfering with the search of the Wapping offices and in their response, through Burton Copeland, to requests for documents and information which might implicate others at NI) bolstered the belief that the criminality permeated wider within NI than just Mr Goodman. There were financial and editorial evidential leads available to the police relating to published articles and payments for them. DCS Williams was correct to assert that in order to prosecute any of the individuals referred to by the corner names he would have needed to be in a position to prove cogently who they were241 and that they had requested or received the information in the knowledge that Mr Mulcaire obtained information through voicemail interception.242 He explained that what was absent from the seized material was any specific instructions to Mr Mulcaire to undertake any criminal activity that could be connected to a particular person, or what it was he did and who he sent it to and how he billed it ...243
5.8
5.9
5.10 5.11
5.12
5.13 5.14
p81, lines 15-16, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-29-February-2012.pdf 239 p54, lines 2-7, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/. DI Maberly believed that three of the corner names in particular were the names of journalists at the NoTW. When pressed, he agreed that there was circumstantial evidence, but went on to say (as is undoubtedly the case) that he would have needed something more substantial in order to obtain a conviction. uploads/2012/02/Transcript-of-Afternoon-Hearing-29-February-2012.pdf 240 p91, lines 1-4, Mark Maberly, ibid 241 p51, lines 1-11, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-29-February-2012.pdf 242 p50, lines 12-19, ibid 243 p50, lines 9-10, ibid
238
311
5.15
During his evidence, however, DCS Williams appeared to assert, that there was no evidence that other journalists were involved. For instance, it was put to him that it was likely, or at least a plausible picture, that Mr Mulcaire said to the journalist on the phone: Ive listened to celebrity Xs voicemail and this is what I can tell you is on the voicemail. DCS Williams agreed that it was a plausible picture but stated that he had no evidence of that to put before a court.244 This has caused concern that DCS Williams failed to recognise the evidential value of the matters the police had established. DCS Williams is emphatic that his use of the expression no evidence has been taken out of context and that he did not mean that there was no evidence whatsoever, but rather that such material as had been collected, was insufficient to prosecute. Given that DCS Williams was plainly aware of the material that pointed towards other journalists and was correct in his assessment that a considerable amount of further work would have had to be done before a further prosecution could have been contemplated; I am prepared to accept his submissions on this issue. Had he not been aware of the potential value of the evidential leads, he would not have considered it necessary to ask Mr Clarke to decide whether further resources should be committed to the investigation. DCS Williams may not have labelled or analysed the material in his own mind as circumstantial or inferential evidence but it would be wrong to find, in 2006 at least, that he did not appreciate that there was some evidence; as the section below demonstrates, however, that made no difference to the decision made by Mr Clarke. Similarly, in his evidence DI Maberly explained that he believed that three of the corner names in particular were the names of journalists at the NoTW245 but went on to say: We had some inference; we had no evidence.246 When pressed, he agreed that there was circumstantial evidence, but went on to say (as is undoubtedly the case) that he would have needed something more substantial in order to obtain a conviction. I conclude this section by emphasising that it would not be fair to seek to infer from the fact that a number of prosecutions are now being undertaken that the conclusions then reached by the officers were wrong, let alone that they were not objectively and fairly reached. It is obviously important not to prejudice or appear to pre-judge the criminal process by expressing too robust a view of the material then (or now) available. There was, in my judgment, more than enough in the Mulcaire documents to justify further work which could, itself, have led to further evidence being uncovered, but that is a long way from saying that it would then have been appropriate to go further; it is even further removed from being able to suggest that the decision not to do so was wrong.
5.16
E
5.17
5.18
The decision
5.19 If the investigation was to continue, DCS Williams was of the view that the next step would be a detailed analysis of the documents seized from Mr Mulcaire. He said:247 I knew that we would need to go through that material again, and that we would have to do all the research in exactly the same way wed done around the phone
p8, lines 2-8, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 245 p88, lines 8-17, Mark Maberly, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 246 p89, lines 15-20, ibid 247 p88, lines 10-18, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-29-February-2012.pdf
244
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works to see what that showed. Then I would have a better picture of is there actually something here that I can either take to a judge in a production order or, probably more realistically, I would have taken that investigation forward, assuming that there is something more in that material, in terms of arresting people. 5.20 DCS Surtees was also of the view that pursuing the evidential leads would have required a step-change in the investigation, which would include a thorough analysis of the material seized from Mr Mulcaire. For instance, he considered that the guilty knowledge of those identified by the corner names would be difficult to prove and would require a full scale criminal investigation sanctioned by senior officers in SO13.248 He said:249 in terms of widening the suspect pool, that is a protracted piece of work, because wed have to go through the whole process again of trying to identify, et cetera. 5.21 This analysis of the material seized would have to have preceded an application for a production order because the court would expect the police to have a clear idea of what they already had in their possession before seeking to compel the production of journalistic material. The law requires the police to make proportionate applications, which focus on what is strictly required. The law does not permit wide-ranging, speculative fishing expeditions.250 The Operation Caryatid investigators would not have been in a position to identify what was strictly required until they had ascertained what evidence they already had.251 Against that background, DCS Williams and DCS Surtees briefed Mr Clarke, Commander McDowell and DCS White as to the current state of the evidence. DCS Williams said that senior management were aware that the investigators believed that NI had not been cooperating with the investigation. DCS Surtees said that during the briefing:252 it was made very clear that, given the unprecedented amount of operations currently live within SO13 and the huge demand this was having on the CT command, this matter was not to be investigated beyond the original parameters. Moreover, all efforts were put into preparing the prosecution case to ensure the conviction of Mulcaire and Goodman. 5.23 Mr Clarke explained that in order properly to analyse the material and to be in a position to present it as evidence in a prosecution, it would have been necessary to index the material (manually, because at that time there was no way of scanning documents onto the HOLMES system); cross-reference it; research every phone number and subject it to an individual RIPA application to obtain data; and then analyse that data.253 Mr Clarke said that it would have been an an enormous undertaking.254
5.22
248
pp25-26, para 52, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCSKeith-Surtees.pdf 249 p41, lines 5-8, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 250 See, for instance, R(B Sky B and others) v Chelmsford Crown Court and Essex Police [2012] EWHC 1295 (Admin) 251 When asked whether he was surprised that a production order had not been sought given that, in his own words, there had been a closing of ranks from very early on from NI, Mr Clarke said that, even if a production order had been granted, it would not have made any difference to his decision p33, lines 12-13, and pp34-35, lines 19-1, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-Morning-Hearing-1March-2012.pdf 252 p31, para 65, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-KeithSurtees.pdf 253 p37, lines 12-23, ibid 254 p38, lines 24-25, ibid
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5.24
On the question of the possibility of requesting support from elsewhere in the police service, Mr Clarke quoted in his witness statement from his evidence before the Home Affairs Select Committee in July 2011: I took the view that it would be completely unrealistic, given that we were heading towards a prosecution of Goodman and Mulcaire, to then go to another department and say, Weve got a prosecution running. We have a huge amount of material here that needs analysing. We dont know, given the uncertainties of the legal advice, whether there will be further offences coming from this or not. Would you like to devote 50, 60, 70 officers for a protracted period to do this? I took the judgment that that would be an unreasonable request and so I didnt make it.
5.25
Mr Clarke gave more detail about his rationale in his witness statement:255 First, given the wider context of counter terrorist operations that posed an immediate threat to the British public, when set against a criminal course of conduct that involved gross breaches of privacy but no apparent threat of physical harm to the public, I could not justify the huge expenditure of resources this would entail over an inevitably protracted period. Instead a team of officers were detailed to examine the documents for any further evidence, and to identify potential victims where there might be security concerns. Secondly, the original objectives of the investigation could be achieved through the following measures: The very public prosecution and imprisonment of a senior journalist from a national newspaper for these offences; Collaboration with the mobile phone industry to prevent such invasions of privacy in the future; and Briefings to Government, including the Home Office and Cabinet Office designed to alert them to this activity and to ensure that national security concerns could be addressed.
5.26
He added in evidence that the investigation was, to be honest, not anywhere near the top of our level our concerns because, remember, we are dealing with the airline plot and a whole range of other terrorist operations at that time.256 A legitimate concern has been expressed that Mr Clarkes decision was underpinned by a briefing from DCS Williams,257 and therefore that he might have been told by DCS Williams that the investigation had uncovered no evidence implicating other journalists, or, if DCS Williams at least mentioned the evidential leads (which, as it happens, I do not doubt that he did), he would have expressed a cautious view of their potential value or viability. The first point to note is that throughout the investigation Mr Clarke (and indeed DCS White and Commander McDowell) received regular briefings, from both DCS Williams and DCS Surtees, at which the evidence and potential direction of the investigation were discussed (and at which decisions were made to limit the investigation). It is therefore not the case that before
5.27
pp45-46, paras 92-93, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-ofPeter-Clarke.pdf 256 p36, lines 21-25, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-1-March-2012.pdf 257 whether directly or through Commander McDowell and DCS White
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being briefed in September/October 2006 Mr Clarke had no idea of the potential evidential leads.258 5.28 The precise content of the briefing received by Mr Clarke cannot now be ascertained, but the evidence given by Mr Clarke demonstrates that even with the fullest understanding of the quality of the evidence, his decision would have been the same. His reaction to questions on this issue was that he had enough information to make a properly informed decision:259 Even though I didnt know some of the intimate details of the case, and indeed details which, with hindsight, you could say were very important, I still think I had enough information available to me to make the overall decision about the future direction of the inquiry, because I still cant see any way in which we could have done that without exhaustive analysis of all of that material. 5.29 Mr Clarke agreed that it probably followed that even if one could fairly characterise the evidence, particularly in relation to the three journalists, as strong circumstantial or inferential, that his decision not to pursue them would have been exactly the same:260 Strong circumstantial evidence in terms of trying to prove a conspiracy within a major newspaper group, it might it wont get you, I would suggest, it would be very unlikely to get you to the position of a successful prosecution. 5.30 He was asked whether from reviewing the decision logs in preparation for the Select Committee hearing and having heard some of the evidence from the investigating officers during the Inquiry, he had a different impression or understanding of the quality of the evidence insofar as other journalists were concerned. Mr Clarke answered as follows:261 Its told me that theres more information there What I can say is that I havent seen anything which would cause me to make a different decision than the one I did then in terms of the allocation and resources, and I say that because we referred earlier to the overall strategy, which was to try to bring this criminality to an end by the prosecution of a senior, high-profile journalist, through working with the industry and through passing information to government. 5.31 I asked Mr Clarke whether, in fact, the decision was not even close, not because of the quality of the evidence but because he was coping with 70 terrorist operations on a monumental scale. Mr Clarke said that this was very close to being spot on:262 because the minutiae of whether there was circumstantial evidence against journalist A, B or C is a minor consideration in comparison with the consideration of what poses a threat to the lives of the British public. Invasions of privacy are odious, obviously. They can be extraordinarily distressing and at time they can be illegal, but, to put it bluntly, they dont kill you. Terrorists do. 5.32 Mr Clarke continued by explaining that it would have taken a huge amount of very strong, compelling evidence to persuade me that we should take a different course. Even that, however, would not have guaranteed that the matter would have been investigated further, only that he would have had better grounds to approach another part of the police service
Further, DCS Surtees has specifically emphasised that he discussed his view of the outstanding leads in detail with DCS White and other supervisors in August/September 2006 259 pp45-46, lines 21-3, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-1-March-2012.pdf 260 pp47-48, lines 24-3, ibid 261 p47, lines 7-18, ibid 262 pp48-49, lines 17-1, ibid
258
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and suggest that the enormous resources required should be dedicated to the problem.263 Mr Clarke said:264 If officers had come to me and said: Look, we have very clear technical evidence here that these journalists are involved in phone hacking, that would have given me something more then to try to move the operation somewhere else, something to explain to colleagues why they should devote their own precious resources to what would inevitably be an enormous operation, but that simply wasnt there. 5.33 It is also worth noting that both the SIO and his deputy clearly agreed with Mr Clarkes decision. DCS Williams put it this way:265 ultimately the decision was Mr Clarkes and I have worked with him since 2004. He is the most professional man that Ive ever worked for, and I have absolute confidence in his integrity. I totally agreed with his decision-making. We were all acutely aware of the very difficult decisions that ultimately he would have to make and the rationale for it, and I do agree with it. 5.34
DCS Surtees also agreed, stating that given the 70 priority terrorism investigations on-going at that time: it would have been absolute folly to prioritise the outstanding parts of this investigation to the detriment of the life threatening investigations. 266 He went on to make it clear that, despite Mr Clarkes evident reputation for integrity, he would not have accepted without challenge what he perceived to be a perverse decision. He said:267 Had I been concerned about the legitimacy or otherwise of that decision, I would have taken that elsewhere. What I mean by that is I clearly am alive to the fact that we have got lines of investigation that had not been pursued in this case. The lines of investigation could have been pursued, and, as a detective, I would like to have pursued them. If Peter Clarke had made a decision based on resource, and my experience was that there was lots of resource, and I thought the decision was perverse, then I would have taken that elsewhere. That was absolutely not my position when the decision was communicated down to me. I was fully aware of where we were within the antiterrorism branch or counter terrorism command at that time.
5.35
Neither Mr Hayman nor Lord Blair had any apparent input into this decision. Mr Hayman could not recall a conversation with Mr Clarke about the possible widening of the investigation to embrace other journalists268 and had not appreciated the significance of what the investigation had turned up at the time (in relation to the number of potential victims and the corner names of journalists). Even if he had, he would have accepted the decision made by Mr Clarke not to widen the investigation because he was one of the people weighing up the competing demands on resources.269 Lord Blair said that because of the huge pressures from Operation Overt, any conversation about the evidence in Operation Caryatid would have been way back on the agenda and
5.36
263 264
p49, lines 15-23, ibid p50, lines 6-13, ibid 265 pp105-106, lines 20-21, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/ Transcript-of-Morning-Hearing-29-February-2012.pdf 266 p31, para 64, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-KeithSurtees.pdf 267 pp65-66, lines 20-8, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 268 p141, lines 6-10, Andy Hayman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 269 pp152-153, lines 22-3, ibid
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relatively short, particularly because the matter was being successfully dealt with and closed down, and that was how it was I understood it to be.270 Lord Blair said that it never occurred to him to ask whether there was further evidence of similar offences or offenders and nor was he told that that was the case. He said that these were fragmentary conversations about something which was considered of relatively minor importance in comparison to the unfolding threats of mass casualty terrorism.271 5.37 Lord Blair expressed the view in his evidence that although the decision Mr Clarke made was a reasonable one,272 it would have been open to Mr Clarke to escalate the matter to Mr Hayman, the Deputy Commissioner or up to him, any of whom might have decided to hand the investigation to another part of the organisation, possibly the specialist crime directorate, for a scoping study in due course.273 Lord Blair said that: It could have been taken out and parked. I just do want to get across that I am not blaming Peter for this. I am merely saying another course of action could have been taken, and perhaps at that stage the information would have come out about there being lots more names and indications of a lot more people involved and then things would have been very different.274 5.38 Whilst an alternative course may have been available to Mr Clarke, it would not be right to criticise Mr Clarke in any way for taking that course in the circumstances he has described. He was an impressive witness. His evidence regarding the terrorist threat to life and his prioritisation decision was given with force and in a convincing manner. I conclude unhesitatingly not only that Mr Clarke was entitled to reach the decision that he did but that, to such extent as it is appropriate for me to express an opinion, he was right to decide that no further anti-terrorist resources would be committed to investigating the breaches of privacy occasioned by voicemail interception. Even if the potency of the potential evidential leads were not explained during the briefing, that fact made no difference to the outcome. There was no question that Mr Clarke had to satisfy the demand for resources that the terrorist threat presented and that he was forced to make resourcing decisions that might not have been justifiable if the quantum of the threat were not so large. It was so clearly the correct decision that there is simply no scope for concluding that the decision was in any way influenced by the relationships between some senior officers and NI staff. I have no doubt, in any event, that Mr Clarke would not have countenanced such a factor having any bearing on his decision-making.275
5.39
Recording the decision

5.40
270
Mr Clarke said that his belief was that, in the final analysis, Commander McDowall and DCS White would have briefed him and he would have said to them: Okay, go and see the SIOs,
p65, lines 5-9, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-MorningHearing-7-March-2012.pdf 271 pp24-25, para 59, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-LordBlair.pdf 272 p58, lines 18-21, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-MorningHearing-7-March-2012.pdf 273 p59, lines 6-18, ibid 274 p63, lines 10-18, ibid 275 To which it is appropriate to add that Mr Clarke himself strongly denied any suggestion that his decision not to broaden the investigation was influenced in any way by pressure from NI or the perception that senior officers would wish it so: p52, lines 4-8, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-1-March-2012.pdf
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tell them that were not going to go into the enormous exercise that going through all that material would involve.276 Mr Clarke believes that he made this ultimate decision around the end of September 2006;277 DCS Williams believed that it was around September, possibly October.278 5.41 Mr Clarke went on to say that although briefing meetings were not themselves documented or the subject of minutes, he would expect the product of those meetings to be recorded in the SIOs decision log.279 DCS Williams has contended that it would have been for Mr Clarke, as the decision-maker, to record the decision. In this case, for whatever reason, it did not happen: there is thus no contemporaneous written record of Mr Clarkes decision or its rationale. Neither is this failure simply bureaucratic: in my judgment, it was significant because the absence of any written explanation of the rationale behind the decision but also the evidential stage that the investigation had reached along with details of the outstanding leads may well have had important consequences in 2009, when the then Assistant Commissioner, John Yates, was tasked with establishing the facts around Operation Caryatid.280 It was also important for another reason: it deprived the police of an important protection from allegations of impropriety, which, in this case, have caused serious damage to the reputation of the MPS. It follows that I entirely endorse Mr Clarkes comment that where the police decide not to deal with a particular piece of criminality by what might be described as the conventional course of arrest and prosecution, there may be circumstances where the rationale needs to be made clear to others, so that the sorts of insinuations that have been made about my officers who conducted that inquiry in 2006 can more easily be shown to be baseless.281 Sir Paul Stephenson made similar comments with which I also completely agree. He said:282 what do you then do with those matters that could be part of a criminal investigation, but for very proper resourcing decisions you decide not to take that option, which is not unusual in many investigations, and I think that there are two relevant factors there: one, you have to ensure that if you are taking those matters elsewhere, from a crime prevention perspective or to change behaviour or to deal with victims in a better way, then you have to make sure you land those issues with those other agencies or government. Secondly you have to try and ensure, I think, in the future that we make those decisions transparent so they can withstand this level of scrutiny.
5.42
5.43
Other possible approaches

5.44 The two conclusions that led to the investigation being curtailed were, first, that it would have been essential to undertake a full and detailed analysis of Mr Mulcaires documentation
p37, lines 2-5, ibid p35, lines 8-12, ibid 278 p85, lines 8-9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Morning-Hearing-29February-2012.pdf 279 pp21-22, lines 11-8, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-1-March-2012.pdf 280 These consequences are discussed in Section 8 below 281 p59, lines 15-23, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-1-March-2012.pdf 282 p66, lines 6-21, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-5-March-2012.pdf
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and, second, that considerable resources would have been required to do the work. Having regard to the allegations that have been made, however, it was necessary to test the extent to which those beliefs were both genuine and reasonable: having done so, it is only fair to record the answer. Thus, the officers were asked about the feasibility of investigative steps short of such an analysis. 5.45 They were also asked whether they could have arrested the three journalists from the NoTW identified by DI Maberly. The four detectives roundly rejected this is as a realistic option on the basis that, in all likelihood, the journalists would have made no comment in interview, as did Mr Goodman and Mr Mulcaire; the police would have been no further forward. In relation to this suggestion, Mr Clarke remarked:283 Would it be reasonable, bearing in mind that we were being completely thwarted and receiving no co-operation from News International whatsoever, to go out and arrest two or three journalists, invite them to make a full and frank confession of what theyd been doing, because we wouldnt, without analysis of all that material, have substantial issues to put to them? It would be a complete reverse of good investigative practice to do that. 5.46 DCS Williams said:284 My opinion is that to do a proper and professional investigation to interview anyone, it has to be done from a position of knowledge, and that in many investigations simply going and asking someone to give an explanation quite often results in no comment, in exactly the same way in my early decision logs I could have gone and seen Mr Goodman and it is highly unlikely that we would have got very far in the investigation. 5.47 DCS Williams continued:285 This is my personal belief as an investigator, and maybe others will judge my threshold is too high, but given my experience of investigations and presenting a case before a court, I obviously have a personal higher threshold than others as to what I believe in terms of the right thing to do in terms of reasonable ground before I start depriving other people of their liberty. I do understand that you are arguing to me that there is a lower threshold and I could have arrested and interviewed. 5.48 DCS Surtees said:286 Whilst the most probable explanation for the corner names was that journalists at NOTW were in receipt of this information and that they could be aware of the illegal practises [sic], the difficulty was proving this. This would have meant potentially arresting those journalists listed on Mulcaires documents. To affect [sic] this there would need to be a full scale criminal investigation.
pp40-41, lines 22-5, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-1-March-2012.pdf 284 p104, lines 12-19, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-29-February-2012.pdf 285 p10, lines 14-24, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 286 pp25-26, para 52, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCSKeith-Surtees.pdf
283
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5.49
DI Maberly made the following observations on this subject:287 There would have been aspects of the case that I would have liked to have asked them about, but I had no firm evidence of either their knowledge of voicemail interception or of them tasking Mr Mulcaire. This is something that I would have looked to find before speaking to them, because it would have been the case that, you know, if we did bring them in for questioning, the likelihood is that they would have made no comment, as did the other two employees of News of the World. We would have got nowhere.
5.50
I have no difficulty in accepting that this collective view that there would have been nothing to gain from arresting the three journalists, without further investigation, was (as Mr Clarke pointed out) in keeping with good investigative practice; it was both reasonable and entirely honestly held. As a further possibility, it was put to DCS Williams that he could have asked the NoTW to provide him with a list of journalists, perhaps limited to particular desks. DCS Williams explained that he would need more than a corner name that happened to be the first name of someone employed by the paper:288 To put together a criminal investigation, I wouldnt just use that one facet. There would be a whole range of questions and things that I would want to get put together to have a cogent case as to now why am I speaking to this individual. Not simply the fact that their name is Im making this up Bill, because thats on a corner name, and they happen to be Bill someone employed in this papers. I would need more than that.
5.51
5.52
He repeated that he would have wanted to go through all the material because:289 That is a proper and professional way of carrying out a criminal investigation. Its not done piecemeal or bit by bit. Its done exhaustively, in exactly the way that actually its being done subsequently.
5.53
Whilst I do not accept that, of necessity, furthering the investigation was all or nothing, and that certain preliminary steps could not have been taken to see what they yielded, I have no doubt that DCS Williams honestly held the view that the only satisfactory approach was to examine the Mulcaire archive both systematically and comprehensively. The next possibility, suggested to DCS Surtees was that he could have obtained the call data in relation to a limited number of victims listed in the blue book and see who else might have been calling into their voicemail boxes.290 DCS Surtees explained that the phone records for a given individual reveal thousands of lines of incoming telephone calls. Identifying any given incoming caller requires a separate RIPA authorisation (which itself was a laborious process because the police needed to account for their wish to intrude into the privacy of the individual).291 He stated that the only feasible approach, therefore, was to start with the
5.54
p89, lines 5-14, Mark Maberly, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 288 p100, lines 8-16, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-29-February-2012.pdf 289 pp100-101, lines 23-3, ibid 290 p24, lines 18-23, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 291 p24, lines 9-17, ibid
287
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suspects number and look to see whether that number had accessed the voicemail account of the potential victim.292 5.55 DCS Surtees agreed that the potential victim concerned could be asked to exclude the numbers they recognised.293 However, he also pointed out that the phone records would not show which of the incoming calls were seeking remote access to voicemail and which were ordinary phone calls to the victim. Only Vodafones Vampire data were able to show the details of calls into voicemail boxes.294 It follows that it was quite likely that even after the individual had eliminated all the numbers he or she could recognise, the police would be left with many numbers which may or may not have called the voicemail box. A RIPA application would then have had to be made on a speculative basis, which may well have been insufficient to satisfy the officer charged with deciding whether to grant a RIPA authorisation, because the number could quite easily belong to an entirely innocent party. DCS Surtees was also asked whether he considered and discussed with his senior officers a more limited investigation in the first instance, for example by targeting the most senior journalists, because he would be able to find out their relevant phone numbers. He could not remember what conversations there were around scoping a possible future investigation or the extent of such an investigation. He said: I certainly cant remember going into we could have a major investigation or we could have a smaller investigation.295 Again, taking account of the response of DCS Surtees to the questions on this topic, that to the extent that he, and indeed DCS Williams, did not consider whether steps short of a major investigation might be feasible, the absence of such consideration was based on a judgment made in good faith and was not influenced by any desire to protect or propitiate NI. The tenor of the evidence of Mr Clarke was that he agreed with DCS Williams and DCS Surtees. Mr Clarke was asked whether it would have been possible to carry out a more abbreviated analysis, looking at a sample of victims and the three journalists in the sight lines of DI Maberly. His response was:296 Well, potentially, but I dont see how you could take part of that material and subject it to analysis with all the cross-referencing and so on that would have to happen, and so inevitably I think it would lead to an analysis of all the material. 5.58 Mr Clarke agreed, when challenged, that there could have been a more limited and streamlined analysis of the material which focussed on the three journalists. He said:297 I see what youre saying and with hindsight there are probably all sorts of approaches that could have been taken, but in the light of what I was aware of at the time, what I knew and the competing demands, I made the decision that we would not do so. 5.59 5.60
292 293
5.56
5.57
However, he subsequently re-stated his initial position, namely that the investigation could not have moved forwards without an exhaustive analysis of the material.298 I am not in a position to judge whether further tentative enquiries would have borne sufficient fruit to prosecute other journalists without there being a disproportionate drain on resources.
p25, lines 4-22, ibid p26, lines 8-18, ibid 294 p28, lines 5-10, ibid 295 pp59-60, lines 10-4, ibid 296 pp38-39, lines 21-1, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-1-March-2012.pdf 297 p39, lines 2-16, ibid 298 pp45-46, lines 21-3, ibid
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What matters insofar as the Terms of Reference are concerned is whether the detectives honestly held the views that they did (rather than whether their views were necessarily wellfounded) and were not influenced by any relationships between senior officers within the MPS and NI. The evidence I heard from each of them, and how they have justified their decisions, gives me no cause to doubt that their decisions were unaffected by the fact that the target of the further investigation would have been NI journalists or editors. 5.61 It is fair to add that DCS Williams also had concerns about whether the huge resource injection that he believed would be required to take the investigation further would be justified by what such an investigation might realistically yield (which itself might have added to his cautious approach). He said:299 All along, I we had some grounds to suspect that this could be wider and that indeed if we undertook further research we may find something. What I didnt know and what I was clear about is what we would find, and actually what it would amount to. What I was very cognisant of, as indeed we all were, was the amount of work it had taken to get us to where we were, particularly in terms of the technical difficulties.
The other dimension that we were very conscious of is we had achieved that in a covert operation, where nobody knew what we were doing, nobody understood what we were looking for, and they couldnt hide evidence. At the moment this was now very clear about what we were doing and what evidence we were looking for, and it is not unreasonable to think that it would be a far more challenging operation in terms of the implication of the resources that you would need. 5.62 DCS Williams went further because, when asked whether there was any sense that he was taking on a large and powerful organisation and that there were dangers in doing so, he said:300 I think with any large organisation, yes, we were aware of it in terms of a big organisation, which is why we carried out such a thorough investigation, why we sought so much advice from the CPS, in particular in terms of when it came to our arrest phase, because we wanted to be able to seize as much evidence as possible and do it in a proper and professional manner so that we could not be criticised for the way we carried out our investigation. 5.63 I accept the evidence that, if anything, the fact that he was investigating a large organisation made it all the more important that DCS Williams did a good job, both in terms of the way the investigation was conducted and in ensuring that the evidence was sound. Reading between the lines, it was likely to have been within his contemplation that if there were any flaws in the investigation process or the evidence, they would be exploited to the fullest extent possible by the organisations legal team. It is likely that this mind set also contributed to the cautious approach that DCS Williams took to the evidence. Finally, it has been argued that all that would have been needed to include additional journalists on the indictment would have been to ask NI for a list of journalists and crossrefer the list with the corner names. It is suggested that this would be virtually the same evidence as was used to convict Mr Goodman and Mr Mulcaire. It is right, as DCS Williams explained in evidence, that the evidence in support of counts 16 to 20 comprised a high volume of frequency of calls made by Mr Mulcaire to the relevant voicemail box and the
5.64
p86, lines 4-20, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-29-February-2012.pdf 300 pp105-106, lines 20-3, ibid
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duration of those calls.301 However, the approach suggested is too simplistic not least because the evidence implicating Mr Goodman in the conspiracy went significantly beyond his name appearing in the top corner of Mr Mulcaires notes.
Influence of News International

5.65 It has also been argued that there is a strong implication that the conduct of DCS Williams (in telling counsel, the CPS and subsequently Mr Yates that there was no evidence that any other journalists were involved and in later not pursuing the agreed strategy of informing victims) derived from his fear of the powerful media friends of his superiors and reflects a wider institutional fear of NI and his awareness of the close social relationships fostered by the company with his superiors. It has been contended that although there is no evidence that DCS Williams made any conscious decision to suppress evidence, it is inevitable that the relationships exerted some influence on his decision-making. In relation to this aspect of the case, I reject these arguments. First, quite apart from whether DCS Williams was aware of any close social relationships, if such there were, there is no evidence that any decision that he made as to the investigation was not entirely justifiable on logical and reasonable grounds; from the outset, he pursued it vigorously and effectively. The ultimate decision (as it has been called) was made by Mr Clarke. As to the attitude to the investigation, DCS Williams said that:302 no one in my team had any contact with any of the newspapers, and I can assure you at no time in that investigation was it ever an issue, did we ever discuss it, did it ever influence the direction that we went in with that investigation. 5.67 Second, DCS Williams did not suppress evidence; and I have accepted that DCS Williams was not intending to convey to counsel or the CPS that there was no evidence whatsoever to implicate other journalists, only that there was insufficient evidence to lay before a criminal Court.303 Suffice to say, having seen the senior members of the investigating team, I have no doubt that they approached their task with complete integrity. Neither do I doubt their enthusiasm or their desire to investigate the criminality before them to the fullest extent possible within the limits of the resources available to them. I am satisfied that had Mr Clarke, at the end of September 2006, sanctioned the exhaustive analysis of the documentation seized from Mr Mulcaire, the investigators would have embarked on that task with the zeal and rigour they had demonstrated since Operation Caryatid had begun. Given how little was known about voicemail interception when the investigation began in December 2005 and the challenges involved in understanding how the interceptions were taking place and then proving the interceptions, it could only have been (and was) a robust, tenacious, well-motivated and skilful team that could have secured such extensive evidence that Clive Goodman and Glenn Mulcaire were driven to admit their guilt. I do not find they were deterred in their investigation by fear of getting on the wrong side of such a powerful organisation or displeasing senior management by risking damage to the MPSs working relationship with NI.
5.66
5.68
5.69
pp98-99, lines 11-6, ibid p106, lines 17-21, ibid 303 The context in which DCS Williams used the phrase no evidence was rather different in 2009, however, when DCS Williams was briefing John Yates. This is explored in section 8 below
302
301
323
5.70
As an indication of DCS Surtees enthusiasm in particular, I note that he said in evidence that, when producing his search strategy:304 I wanted very much to get into News International, because I wanted to search the desk, I wanted to search the financial areas, I wanted to find evidence around who was involved in this illegal activity.
5.71
Also, when asked whether he would have liked there to have been a full scale criminal investigation into other journalists, his answer was: absolutely. He explained, however, that he understood the priorities:305 So in terms of what I would have liked to have done coupled with my obligations and the seriousness of the investigations I was involved in, I knew where my priorities lay, and those were with the issues of serious threat to life investigations. Thats where I needed to be and thats where my staff needed to be.
5.72
On this topic, Mr Clarke observed that: [the investigating officers] conducted an honest inquiry, they were uninfluenced, as was I, by anything to do with News International or any media group.306 In the context of his evidence about the perception caused by his relationships with individuals from NI, Mr Hayman stressed:307 I can absolutely accord with your point around perception, but I can tell you that the team on it are ferocious, they have a reputation of being ferocious, and if, lets say, there is a scenario, which some people have argued around the conspiracy that there was a not such ferociousness around because of a perceived relationship, it was impossible, in my view. If you wanted to be disproportionate towards those alleged perpetrators, or you wanted to dilute down the investigation, the security and parameters that were set by the SIO would make that impossible. And if I personalise that, if there was an agenda from me or any other person, Assistant Commissioner, who wanted to dilute or disproportionately ramp up that operation, it would be impossible for that to happen without the SIO calling foul or asking for that individual to record why they want something done in that decision log.
5.73
Because of the serious concern expressed, this aspect of the police operation has been examined in detail. In the circumstances, I ought finally to record the views of the independent Queens Counsel instructed to advise and conduct the prosecution, who dealt with the officers on a regular basis. David Perry QC said of the police and CPS staff involved: 308 my impression throughout this case, which was not an easy case, given all the sensitivities as well as the technical aspects and the difficult issues of law, was that everyone involved, both at the Crown Prosecution Service and in the police, were conscientiously attempting to do their jobs professionally and with some skill, and my distinct impression at the end of it all was that it was an example of collaborative efforts on the part of the Crown Prosecution Service and the police that had led on
p45, lines 1-6, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 305 p59, lines 4-9, ibid 306 p59, lines 23-25, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-1-March-2012.pdf 307 p140, lines 2-18, Andy Hayman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 308 pp46-47, lines 25-13, David Perry QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcriptof-Morning-Hearing-4-April-2012.pdf
304
324
the face of it at any rate to a successful outcome on the facts of this case. I must say, I found everyone involved highly skilled, competent and professional.
6. Police strategy for the aftermath

The victim notification strategy
6.1 In order to examine how the police intended to address issues concerning the victims of voicemail interception, it is necessary to return to 24 August 2006 (three days after the conference with counsel) on which date DCS Williams met with Mr Clarke and DCS White. Mr Clarkes recollection is that the purpose of the meeting was to devise and produce a victim notification strategy.309 Mr Clarke said that he agreed the strategy at the meeting310 and expected it to be implemented and seen through.311 He said that:312 Bearing in mind that there had been very close co-operation between my officers and the mobile phone industry throughout the investigation, it was agreed that after the arrests there would be a strategy for informing victims whereby police officers would inform certain categories of potential victim, and the mobile phone companies would identify and inform others. 6.2 Mr Clarke was asked whether it was his intention that the 418 names on the original list of potential victims, which was prepared shortly after 8 August 2006, would be notified one way or the other, either directly by the police or by the mobile phone companies. Mr Clarke said: Yes, absolutely.313 Mr Clarke said that he did not have any oversight over the execution of the strategy because he would not be expected to do so and by then he was fully immersed in Operation Overt.314 DCS Williams said that he wrote the outcome of the discussion in a document entitled Informing Potential Victims.315 Given that Mr Clarke had no further involvement in the victim notification strategy after that meeting, it does not appear that he saw the document or was asked to agree the detail of the strategy. The following are material extracts from the document: Situation Material seized during the executive action phase of Op Caryatid has been assessed and at this stage there are approximately 180 potential victims whose details are recorded by Mulcaire. Way Forward
p46, para 96, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Peter-Clarke.pdf p55, lines 20-22, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-1-March-2012.pdf 311 p47, para 96, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Peter-Clarke.pdf 312 p46, para 94, ibid 313 p56, lines 2-9, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-1-March-2012.pdf 314 p47, para 96, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Peter-Clarke.pdf 315 p22, para 33, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-PhilipWilliams.pdf; (document not published)
310 309
6.3
325
There is a need to establish definitely how many victims there are, i.e. how many people have had their voicemails (UVNs) rung by Mulcaire/Goodman. With that in mind all 5 of the UK mobile phone companies have been asked to search their UVN equivalents for any of our suspect phone numbers calling them going as far back as possible up to one year, dependant [sic] upon data retention. Time frame up to 3 weeks, but variable due to Op Overt. Using the information that will come from the mobile phone service providers together with an assessment of material seized, police/Council [sic] can choose an appropriate range of victims subject to their agreement to add to the charges. The list of victims will then represent the most definitive list of people who have had their voicemails intercepted. There is arguably a duty to inform people when they have been a victim of crime and in this case I believe that duty should be undertaken for those people who we know are victims by virtue of the fact that our suspects called their voicemails (UVNs). That list will be identified as above and the next step is to decide when and how they should be informed. Issues to bear in mind if informing victims Informing all of the victims could be resource intensive which SO13 can ill afford at this juncture given the current terrorist threat. From all that is known, the risk to the victims does not extend to a risk to life or serious injury/damage to property, but rather the goal of the criminality is to seek material of media interest typically salacious gossip! Arguably any immediate and future risk has been negated by virtue of the fact that police now hold the suspects data on their victims and the fact that they have been detected acts as a deterrent for them or anyone else to target these victims. Although the techniques for voicemail interception may not be limited to these suspects it is unlikely these two will have shared them with a wider audience given the potential earning value of the technique. Equally our investigation to date has not identified any other suspects calling the UVNs of our main victims. There is a rationale for saying that the risk to victims has been significantly reduced due to police action and therefore a more measured and proportionate approach can be taken in terms of who and when the victims are informed. Options In terms of the, who and when, the following are options: 1. Given the rationale outlined above, do not inform any victims beyond those who will be used in the prosecution. 2. As per 1 above, but extend the victims to be informed to include anyone who falls into the category of MP, Royal Household, Police and Military on the basis that although there is nothing to suspect personal safety or national security is being targeted, these are people for whom being those aspects could be a collateral risk. The latter four categories would include those that are on Mulcaires list whether or not any investigation shows that their UVN has been dialled. 3. Inform all victims i.e. whose voicemails have been called.
326
4. As per 3 above, but vary the when and how. The four categories identified in option 2 should be informed now and the remainder can be informed once the definitive list is complete following responses from the phone companies. Police would lead on informing the former group whereas the latter group could be informed by the respective victim phone company via an agreed police/mobile phone companies letter. Recommended Option Option 4 is my preferred option because: It deals with the risks to individuals in a proportionate manner. Is a proportionate use of police resources that are hard pressed across the MPS? The responsibility and resource implications are shared with the phone companies. The phone companies are the most effective and efficient means of contacting the victims in the majority of cases. Police have the appropriate channels to contact the police/military/MP/Royal victims. 6.4 DCS Williams explained in his witness statement that:316 I felt that there was arguably a duty to inform people who may have been a victim of crime in this case and I felt that this was best defined by for those people who we know are victims by virtue of the fact that our suspects called their voicemails. If those people could be identified it was a case of by whom, how and when those people would be informed. The rationale for such a distinction was based upon a proportionate sharing of the resources that would be required, the level of risk/harm and who, police or service providers, had the best discrete [sic] channels to carry out the task. 6.5 He provided additional insight into his thinking at the time during the course of his briefing to the Assistant Commissioner, John Yates, in 2009:317 At the time the strategy recognised that there was still extensive research to be done with the phone companies to identify what the full extent of victims might be and therefore as outlined under the section above How were victims identified this could be a vastly bigger group of people and in reality we would probably never know the true scale. This strategy was therefore seeking to alert potential past victims in a proportionate manner without causing undue alarm (i.e. contact via Phone Company as opposed to police) and set in motion measures within the overall mobile phone industry to prevent it happening in the future. 6.6 In summary therefore, the plan was for the police to notify immediately those identified in the blue book (the 418 individuals) who fell into the category of MP, Royal Household, Police and Military, regardless of whether there was evidence that their voicemail boxes had been dialled by the suspect numbers. Individuals outside those four categories would be notified provided their voicemail box had been rung by Mr Goodman or Mr Mulcaire or both318 but
para 37, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip-Williams.pdf para 28, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip-Williams.pdf 318 p66, lines 6-9, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-29-February-2012.pdf
317
316
327
irrespective of whether there was a new or old message in the voicemail box.319 DCS Williams explained that this latter group of victims would comprise those in the blue book whose voicemails had been rung by the suspect numbers (but who were not MPs, members of the Royal Household, police of military) and any additional individuals that the phone companies brought to their attention.320 It was not sufficient that they merely appeared in the Mulcaire papers or were listed in the blue book.321 This latter group of individuals would be informed by their phone company, by way of a letter agreed between the police and the phone company, but not until the phone companies had responded to the request that they identify as many of their customers as they could whose voicemail boxes had been rung by the suspect numbers (so that a definitive list could be compiled). 6.7 I find that it was reasonable for the police to put in place a three-track strategy for the prosecution: namely (i) conducting a high-profile but limited prosecution (limited in terms of victims named on the indictment); (ii) alerting the phone companies so that they could improve security and change their procedures as appropriate and (iii) warning people who were the subject of criminal attention. However, the victim notification strategy was both poorly thought out and scarcely executed. The plan lacked coherence. A considerable amount of work had been invested in the blue book, which provided a list of potential victims (as DCS Surtees intended).322 Plainly, the police should have ensured that all those named in the blue book were notified and the plan should have been devised on that basis. I see no reason for believing that this would have been a disproportionate drain on resources. Instead, the detail of the strategy was such that it excluded people listed in the blue book but in respect of whom there was no evidence that their voicemails had been called by the suspect numbers.323 The strategy therefore overlooked people who were identified in the blue book, and in respect of whom Mr Mulcaire had the wherewithal to access the voicemail accounts, but whose voicemails may have been accessed by an as yet unidentified suspect number, such as a number belonging to someone other than Mr Goodman or Mr Mulcaire. This ought to have been within DCS Williams contemplation given his strong suspicion that journalists other than Mr Goodman had been involved in voicemail interception. The strategy also overlooked the fact that the phone companies only held their records for a short period of time and it thereby excluded those whose voicemails had been accessed by the identified suspect numbers but at such an early date that the relevant records had not been retained. DCS Williams was asked why everyone named in the blue book was not notified. His response was:324
6.8
6.9
319
p74, lines 16-18, ibid. By implication, this was irrespective of whether there was a voicemail message at all. DCS Williams did not apply the narrow interpretation of s1 of RIPA when identifying victims. This was plainly the correct approach given that regardless of the applicability of s1 of RIPA, the accessing of any voicemail message amounts to a criminal offence under s1 of the CMA. Therefore, all individuals whose voicemail messages have been intercepted are victims of crime, irrespective of whether the messages concerned were intercepted before or after they were heard by the intended recipient 320 pp72-73, lines 24-3, ibid 321 p64, lines 3-18, Keith Surtees, http://www.levesoninquiry.org.uk/evidence/?witness=dcs-keith-surtees 322 The list of names comprised people of interest to Mr Mulcaire, in respect of whom Mr Mulcaire either had the wherewithal to access their voicemails or was in the process of obtaining that wherewithal; p67, lines 4-16, http:// www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Morning-Hearing-29-February-2012.pdf 323 The strategy did not therefore fulfil Mr Clarkes intention that all 418 individuals listed in the blue book would be informed, which is a further indication that Mr Clarke did not agree the detail of the strategy 324 pp67-68, lines 22-7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-MorningHearing-29-February-2012.pdf
328
But I believe the implementation of this strategy was all Id got there is a snapshot in time from the material that we happened to have received. There could well be a wider pool of people that have been compromised as a result of his activity or indeed anywhere else. So this strategy was aimed at the full potential of what those potential victims might be. So thats where its actually in the when and the how that Im seeking or I was hoping through this strategy to address that much wider pool of people, which would have included everybody on that list. This answer suggests that DCS Williams failed to recognise that the ambit of the strategy simply did not encompass, even theoretically, everyone identified in the blue book. 6.10 Without suggesting to DCS Surtees that it was his responsibility to do so, it was put to him that it would not have been an enormous task to contact everyone in the blue book and make sure that everyone was told that there was some information that their voicemail messages may have been intercepted, that it may not be possible to prosecute for reasons that could be explained, but that they ought to be aware of that fact and take appropriate security arrangements or, at least, be alert.325 DCS Surtees responded as follows:326 I accept that. In terms of the Blue Book and in terms of the document that was produced later, which was a document produced as a result of the analysis of the electronic media, which I think came to us on 23 November 2006, in relation to both those documents, I accept that, the Metropolitan Police, could have approached all of those people and said, Look what is on a piece of paper, or, Look what is on a document and look how it relates to you. I accept that. 6.11 In my view, the police ought either to have informed those named in the blue book themselves, or have agreed with the phone companies that the latter would do so, and given them the means to do so by providing the list of names. The police ought then to have checked with the phone companies to ensure that all relevant individuals had been informed. Insofar as the police had concerns about their obligations under the Data Protection Act 1998 when giving any names to the phone companies, this was a matter that could doubtless have been discussed and resolved: ultimately, the police could have avoided those concerns by informing those individuals themselves. Unfortunately, not only was the strategy ill-conceived but, in addition, its execution was woefully inadequate. The evidence indicates that the police did not notify all the victims for whom they were responsible and neither does it appear that the plan was ever, in terms, communicated to the phone companies, despite a large part of the responsibility for informing victims being intended to fall on them. The police appear to have assumed that having been asked to identify any customers whose voicemail boxes had been called by the suspect numbers, the phone companies would naturally inform all those that they identified. DCS Williams explained his thinking as follows:327 When I wrote the strategy, it was based on what I believed was already happening in terms of our relationship with the service providers and as the case progressed to prosecution that ongoing support, discovery, cooperation and joint media releases
In his witness statement, at para 69, DCS Surtees had said that informing victims beyond those categorised as military, police, MPs and Royal Household, would have involved a huge and labour intensive commitment from SO13 326 p61, lines 16-24, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 327 p25, para 41, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-PhilipWilliams.pdf
325
6.12
6.13
329
served to reinforce my belief. I believed the strategy was being carried out as an ongoing process and I had merely formalised the process at a moment in time with the official endorsement of my senior management. 6.14 DCS Williams even appears to have contemplated that the phone companies would identify potential victims and notify them without giving the police their names. DCS Williams:328 Albeit all of the companies and police were pragmatic in sharing data in what potentially would bring us to an administrative halt if we went down the full process, neither party was willing to share long lists of names for obvious privacy/data protection reasons. Therefore the informing potential victim strategy embraced these issues by providing the optimum, discrete [sic] means of informing anyone who was identified as a potential victim supported by a single, well worn route for those who may wish to report the matter to police. 6.15 DCS Surtees described it as his understanding that the telephone companies would tell those other than MPs, members of the military, members of the Royal Household and police that their phones had potentially been accessed.329 He said:330 The Mobile phone companies had continued from the outset of the investigation to provide us with details of other customers who had their voicemails intercepted. At no time did I or indeed anybody else from the police team ask for this to stop, even post arrest and charge. The issue of the obligation to inform customers/victims to my knowledge was never explicitly documented anywhere either by the police or indeed the telephone companies. O2 were adamant that they would only inform us of possible victims after they had informed their customers and sought consent331. My view was that the telephone companies were responsible for their customers, as is the case in other areas of business such as in the banking industry. Whilst I was not explicit as to what these companies should do around informing and keeping their customers up to date, I held the belief that this was, in fact, being done. To further reinforce this I ensured that the phone companies, especially those not as close to the investigation as the two mentioned herein, were briefed, and, through Jack Wraith, that any victims were directed back to this investigation. Like with O2, the emphasis was still very much on the phone companies to deal with their customers in a professional manner. The telephone companies knew which of their customers were subject to illegal access because it was they who told us in the first place. At no time were they ever restricted from informing those customers, although the extent of the information passed would be limited. Further, it was not for the police to dictate to private companies how to execute their internal procedures and how to deal with their own customers. 6.16 It does appear, therefore, that no attempt was even made to agree the strategy with the phone companies. In addition, there is no evidence of joint letters being agreed with the phone companies, despite this being the intention identified by the strategy. Furthermore, none of the phone companies have stated that they were asked, either before or after this
p25, para 40, ibid p63, lines 7-11, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 330 pp32-33, paras 70-71, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCSKeith-Surtees.pdf 331 Therefore, to such extent as O2 provided names, he could at least conclude that those named individuals had been informed
329
328
330
strategy was drafted, formally to notify any particular category of customer that they were the potential victim of voicemail interception.332 It is right that O2 did notify a number of their customers, but it appears that they did so of their own initiative and not because they were asked to by the police as part of the victim notification strategy. I therefore do not accept the argument of the MPS that the failure of the strategy was due to a misunderstanding between the MPS and the phone companies as to which categories of victims should be informed and by whom. The strategy failed because the MPS did not take the necessary steps to put it into effect. 6.17 As late as 2009, when briefing Mr Yates, DCS Williams and DCS Surtees did not even appear to have been aware that the strategy had failed. In a briefing note dated 12 July 2009, they stated:333 It is not known in detail what each mobile phone company actually did, but anecdotally we know that upon learning of the flaws in their processes the phone companies took steps prevent future breaches and albeit these measures varied from company to company they included contacting customers who they thought might have been a victim 6.18 When making its opening statement to the Inquiry, the MPS fully accepted that the victim notification strategy was not properly executed.334 The failure is now being remedied as part of Operation Weeting. The MPS states that it accepts that it should have done more to ensure the strategy was fully implemented, but argues that this needs to be seen in the context of the huge demand on what became SO15 resources in 2006-7, as a result of several major counter terrorism operations. DCS Surtees has also added that the decision made by Mr Clarke not to expend any further resources on the operation affected the victim notification strategy. He said that after the decision had been made not to expand the investigation, he received the direction that staff should only service the prosecution, and consequently, there were no staff to follow up with the phone companies what they were doing regarding victim notification.335 It does not, however, seem that anyone went back to Mr Clarke and reminded him of the resources needed to implement the strategy which, in outline, he had approved. In my judgment, these resource considerations simply do not explain why the basic steps required were not taken to ensure that the phone companies were aware of what the police expected them to do and agreed both to do it and to the terms of a joint letter. The decision made by Mr Clarke and the demand on resources may provide some explanation (but no excuse) for why these important steps in the process were apparently overlooked but the significance of the failure should not be minimised: it was a failure to take even basic steps to follow up the strategy and to ensure that it had worked as intended. Mr Clarke expressed his regret for the failure of the strategy in his witness statement:336 I have since learned that this strategy did not work as intended and as former Assistant Commissioner John Yates has publicly acknowledged, that is a matter of profound regret. It is also of course utterly regrettable that as a result of the decision
See paras 8.168-8.169 and 8.187-8.189 below. Vodafone and Orange expressly denied having been asked to do so p7, para 30, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-14.pdf 334 The MPS conceded the judicial review proceedings referred to at paras 11.7-11.17 below in which that issue occupied central stage. It acknowledged that it failed to take prompt, reasonable and proportionate steps to ensure that those identified as victims were made aware 335 Second witness statement of Keith Surtees, to be published after this Report 336 p46, para 95, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Peter-Clarke.pdf
333 332
6.19
6.20
331
not to conduct a detailed analysis of all the material seized, victims of crime and their relatives, who I had no idea were the targets of the hackers, were not notified and did not receive the support that they deserved sooner. 6.21 The failure of the victim notification strategy reduced the opportunity for other victims to make themselves known and created a perception that has caused significant damage to the reputation of the MPS. Once again, the important question is whether there is an evidential basis for finding that the police deliberately failed to notify people because they did not want the scale of the interceptions to be known publicly, which might itself have called into question both their strategy and their relationship with NI. The MPS contends forcefully that the failure of the strategy had nothing to do with inappropriately close relationships with (or fear of) members of the press, or any of the risks arising from such relationships as there were. During his evidence Mr Clarke emphasised that his hope had been that the victim notification strategy would be comprehensive and would work. He said: Sadly, it turned out not to be the case and to this day I dont really understand why it didnt work.337 DCS Williams said:338 This strategy did not seek to hide the potential to be a victim of this behaviour. Far from it, the whole aim was to secure maximum public awareness of the vulnerability through an effective and decisive criminal prosecution... 6.24 DCS Williams was asked whether it was a fair observation that part of the reason for the failure of the strategy was the fear that notifying all potential victims would mean the matter would enter the public domain more explosively and force the police to carry out an investigation which they did not really want. DCS Williams said:339 Its not. I understand thats whats being said now, but I can assure you that was absolutely not the intention. I wanted to make this as public as possible, and the most obvious way of doing that is through a prosecution. If I hadnt have wanted to have done it, I could have stopped this investigation much earlier, but that was absolutely not my intention. It was to secure a prosecution, to make this very public, and actually in the wider and long term, to make it absolutely clear what the risks were and how to prevent it. 6.25 It has been asserted that the failure to alert Lord Prescott, in particular, to the fact that he was a potential victim340 strongly supports the allegation that the police deliberately avoided notifying certain victims since, if Lord Prescott had been alerted, he is likely to have reacted to this revelation in such a way which would have made it very difficult for the police not to expand the investigation. It is important to note that, on 30 August 2006 DI Maberly emailed Vodafone asking if they could tell him whether anyone has listened to the voicemail of a number of people, which included Tracey Temple (Prescott).341 Clearly he was a suspected
6.22
6.23
pp55-56, lines 18-1, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-1-March-2012.pdf 338 p23, para 35, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-PhilipWilliams.pdf 339 p107, lines 4-14, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-29-February-2012.pdf 340 This is despite the fact that Lord Prescott had been identified as such by the interviewing officers shortly after the arrests 341 Email not published
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victim. Further, on 2 October 2006, DI Maberly emailed O2 identifying two persons of concern and asking O2 if they featured in the analysis O2 was preparing: the first name was Joan Hammell (linked to prezza).342 DCS Williams was asked about the material relating to Lord Prescott. He said:343 I dont know whether I knew that specific bit in the sense of it sat here in this interview. What I was briefed about was, yes, there are now from the material a number of other people in all walks of life, that include politicians, where it may be that they are potentially people who Mulcaire or others might want to target in terms of their voicemail. 6.26 It is extremely unfortunate that, apparently, DCS Williams was not made fully aware of the fact that the investigators suspected that Lord Prescott had been or, at the very least, was at risk of being, a victim, not least because of the significance of his position as Deputy Prime Minister. On the other hand, I consider it highly unlikely that this omission or the consequential failure to inform Lord Prescott was deliberate. The police had devised a strategy for bringing the matter to public attention, which included notification of specifically identified victims. It was not their overall intention that was at fault but, rather, the detail of the strategy and its implementation. It would be remarkable to embark on the exercise if their intention was to keep hidden what they had found. In the circumstances, it would not be safe or fair to conclude that the failure of the strategy was either a device to minimise publicity or avoid scrutiny or an attempt to bury the scale of the problem. As DCS Surtees explained in evidence:344 There was a communication strategy which was devised in 2006 and it was multifaceted. It dealt with the information that was put out for offer. Two people had been arrested, two people had been charged with these offences. There was various media lines put out throughout the process: two men have pleaded guilty and then latterly two men have been sent to prison. So there were through the process of August into January 2007 a number of media lines put out and a lot of media coverage as a result of that. 6.27 Further, the police informed the PCC345 and Mr Clarke is absolutely clear in his mind that he made the government aware of the investigation when Mr Goodman and Mr Mulcaire had been arrested. He said in his witness statement:346 I recall discussing the case with Dr John Reid, the then Home Secretary, shortly after Goodman and Mulcaire had been arrested. This was in the margins of a meeting about broader counter terrorism issues in the immediate aftermath of the Operation Overt arrests, and was of little significance other than to demonstrate that the Home Office had been informed of the arrests and the broad nature of the case that was alleged against Goodman and Mulcaire.
Email not published pp42-43, lines 22-3, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-29-February-2012.pdf 344 pp62-63, lines 9-18, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 345 p28, para 45, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-PhilipWilliams.pdf 346 p48, para 100, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-PeterClarke.pdf
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6.28
Lord Reid confirmed this to the extent that he agreed it was quite possible that the subject of their arrests was mentioned informally by Mr Clarke though he personally does not recall a specific conversation.347 He added:348 I do recall the issue being touched upon much later in one conversation with the Met Commissioner towards the end of my period in office My recollection is of being told that work continued following the recent trial that had concluded in late January 2007; that there was a considerable amount of material arising out of the trial and the investigations related to it; but that material did not equal evidence, and it would take some time to work through it with a view to gathering evidence.
6.29
This evidence is difficult to reconcile with the fact that, towards the end of September 2006, Mr Clarke decided that no further analysis of the material would take place. Lord Reid continued as follows:349 So that was certainly my impression when I left office, that having carried out the convictions on Goodman and Mulcaire, that now what was being done on the generality of it because there were other suspected victims of this.
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6.30
I think it was my final meeting. I cant be sure of that, but I think the final meeting was around May with Ian. Lord Reid said that he was never made aware that were perhaps hundreds of victims and thousands of names or that Lord Prescott was one of names in which Mr Mulcaire could be seen to be interested, whether or not his phone messages or the phone messages of one his staff were actually the subject of interception.350 Not only do I conclude that a deliberate failure to inform victims was inconsistent with the evident desire of the police to bring the matter to public attention generally, but neither do I find it plausible that the officers concerned would devise a victim notification strategy which they never intended to execute. Further, for all the reasons that I have previously set out, I do not believe that the failure of the strategy was influenced in any way by or connected to any inappropriate relationship between the MPS and NI. By far the more plausible explanation for the failure of the notification strategy is that SO13, having been successful in its primary objective, simply took its eye off the ball in circumstances where it was extremely keen to return to what might be described as its core business, namely counter-terrorism. It has also been argued that when the police did notify victims, they favoured media contacts. For instance, Mrs Brooks was informed that she was a victim and, on 13 October 2006, DCS Surtees emailed the Mail on Sunday a list of five members of staff who had been found to be the victim of voicemail interception.351 It is said that this position is to be contrasted with that of Brian Paddick, Lord Prescott and Simon Hughes. Brian Paddick was a Commander serving with the MPS at the material time; his name appeared in the project list created by the High Tech Crime Unit from information held on Mr Mulcaires computer. Indeed, the High Tech Crime Unit had specifically highlighted his name in the introduction to the document as someone about whom attempts had been made to obtain information. There were also references in Mr Mulcaires papers which included the name of Mr Paddick, his address,
6.31
6.32
para 47, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Lord-Reid.pdf para 48, ibid 349 p173, lines 1-10, Lord Reid, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-23-May-2012.pdf 350 p195, lines 18-25, ibid 351 Email not published
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his mobile phone number and other phone numbers. It was only in 2010 that Mr Paddick was informed. Further, although Rt Hon Simon Hughes MP was an identified victim and the subject of one of the charges in the criminal trial, he was not told that Mr Mulcaire had recorded in his notebook not only details about him but also his friends and family along with the names of three NoTW journalists other than Mr Goodman.352 6.33 I can well understand the reason for the concern that these witnesses had about the approach of the police which underlines the failure adequately to enunciate and implement a sensible and appropriate policy of notifying those who needed to know that their communications may not have been secure and their privacy had been violated or, at the very least, at risk. This might have been as a result of direct notification or by involving mobile phone companies but it had to be done and steps taken to ensure that it had been done. Having said that, the police did notify a number of those who were not related to the media (including, for instance, George Galloway who was told on 24 August 2006). In the circumstances, I consider that the undoubted failures of notification are not the result of cover-up or preferential treatment and favouritism towards the press but rather of poor strategy, and poor implementation of such strategy as existed with insufficient consideration to the importance that many if not most of the victims would attach to learning what had or might have happened to them.
The failure to warn NI or challenge the one rogue reporter assertion

6.34 The police were aware that there were very strong grounds for believing that journalists at NI, other than Mr Goodman, had been involved in unlawful voicemail interception. They had identified that the practice might be widespread. However justifiable their decision not to follow the evidential leads implicating other journalists might have been, that approach, brought with it an expectation that the police would take all other steps reasonably available to them to prevent the recurrence of the crime. In part that was achieved by mounting the high profile prosecution of Glenn Mulcaire and Clive Goodman. Given the extent of the material in the Mulcaire archive and the collation of that material in the blue book, one possible additional step would have been to alert senior management at NoTW and NI of their concern about the extent of the criminality so that the management could review their systems of corporate governance, possibly to institute their own internal investigation into the relationship between the NoTW and Mr Mulcaire which had permitted him to earn so much money and, in the event that payments could not be justified to take such steps as they thought appropriate to deal with the position. It could have been explained to NI that there were other leads in the material which they had seized which could have revealed more widespread criminality but that were not being pursued because of significant competing priorities to deal with counter terrorism. This is not to suggest that the police should have undertaken any duty to monitor NI for which they had neither power nor resources. Taking this step might have led NI and NoTW to be rather less forceful in their assertion of the line that Mr Goodman represented one rogue reporter. Furthermore, when the police became aware that NIs public approach was that Mr Goodman had been working alone, at the very least, the police should have been prepared to point to the observations of Mr Perry, the conclusion of Mr Justice Gross and the fact that their investigation (necessarily not taken as far as it could have been taken because of counter terrorism) should not be taken as
6.35
6.36
pp5-7, paras 16-22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-SimonHughes-MP.pdf
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supporting that conclusion. I am not suggesting that they could make allegations about those whom they had not investigated; distancing the police from these conclusions, however, would, at least, have provided some context. 6.37 DCS Surtees accepted that it would have been possible to go to NI and have a conversation although: it may well have been viewed cynically. He agreed that if the police had done so, then they could have pointed out, when reference was made to a single rogue reporter, that the police put them right because this did not do justice to the extent of the investigation.353 This would not have taken a great deal of police resource.354 This step did not, however, cross the mind of DCS Williams. He said:355 I didnt think to specifically do that. I if I think of your question and look back, I feel we made it abundantly clear what our understanding was and what our suspicions were in terms of the requests that we made to them. Im sure they were well aware of what it was that we suspected, and given that ultimately a member of their senior management team resigned on the basis of what wed found, I would have expected any senior management in an organisation to question why had that happened and to understand exactly what had gone on. 6.39 He went on to say that:356 Actually, I thought Id already done that, had made it very clear, not just to them, but to any organisation that might be engaged in this, that might want to consider are we also doing this. That was the whole purpose. It was to show people: if you are doing this, whoever you are and wherever you are, actually it is clearly criminally wrong, and youll go to prison, and if youre an organisation that knows that you seek information and you should be thinking to yourselves, I wonder if weve got any vulnerabilities? thats what we do as a learning organisation in the police. I dont necessarily expect someone to come and tell me that I should do that, and actually, I may be wrong, but Im not aware in either Ive not done it and Im not aware of my fellow investigators having actually gone and this in senior companies. I know in frauds, then, but thats more in terms of vulnerabilities of a system as opposed to actually something being wrong in the organisation. Thats usually demonstrated through the prosecution of people. 6.40 DCS Williams was right to expect the senior management at NI to conduct an internal investigation and take such preventative measures as were necessary, but it was not safe to assume that they would do so. Bearing in mind the one rogue reporter defence, the reverse was more likely to be the case. On any showing, by strongly advising that course of action, it was open to the police to maximise the chances that the issues would be addressed. The MPS argues that the omission to warn NI as to its future conduct was not a failing and that it did all that was reasonable (given the relevant context and state of knowledge at the time) to raise concerns with NI. The MPS submits that it was made abundantly clear to NI that
6.38
6.41
pp69-70, lines 24-9, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 354 pp68-69, lines 17-2, Keith Surtees, ibid 355 pp107-108, lines 22-6, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcriptof-Morning-Hearing-29-February-2012.pdf 356 pp110-111, lines 25-21, ibid
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the police suspected that voicemail interception was more widespread and that the message was delivered very firmly that they had a problem with employees engaged in sustained periods of criminal activity.357 The MPS submits that the attempted search of NI would have sent a very clear message to NI that the MPS was seeking any evidence of criminality and by implication a halt to any further criminal practice. Also, that the correspondence sent to Burton Copeland demonstrated the attempts made by the MPS to bring to the attention of NI both the nature and extent of the documentation required and by implication the practice of voicemail interception within NoTW. In my judgment, however, these submissions overstate the case: an aborted search that was not renewed and letters requesting documentation, both of which entailed no repercussions for NI sent no warning signal at all. 6.42 The MPS makes the further submission that it is evident from the recent arrests and various charges in Operation Weeting that there is at least material for suggesting that others at NI either knew or feared very much more extensive criminality. Without prejudicing the ongoing criminal investigation and prosecution, it is not right to go further although it is sufficient to point to Mr Mylers comment about bombs under the newsroom floor as identifying his concern which was hardly consistent with the stated line. In any event, this argument misses the point: what was important was not what the NoTW knew or appreciated but that the police had strong grounds for believing that the offending was more extensive than the public line being deployed and that the fact that the investigation had not gone further should not be taken as police endorsement of an attempt to minimise what had been uncovered. The MPS also relies on the prosecution itself, stating that this alone should have sent a very clear message to all media organisations, not just NI, that voicemail interception was illegal and would not be tolerated. I have no doubt that everyone understood the gravity of the position if it was detected. On the other hand, the deterrent effect of the prosecution would have been substantially reduced by the fact that NI had arguably thwarted a wider investigation by interfering with the searches in Wapping and by adopting the attitude reflected in the approach of Burton Copeland to requests for information and documents. The deterrent effect would also be reduced by the fact that, despite the indications of wider criminality at NI, the investigation had been closed. In those circumstances, NI could well have considered itself off the hook. The matters relied upon by the MPS are simply not in the order of what, in my judgment, was required of them before they put Operation Caryatid behind them. Finally, the MPS argues that any approach by the MPS to NI in an unofficial capacity to seek compliance could have been perceived by others as inappropriately cosy and DCS Williams has said that he was operating under the general instruction from Mr Clarke not to engage with the media. The MPS would not, however, be acting in an unofficial capacity and it is not correct to suggest that a formal approach by senior officers, at a fully documented and minuted meeting, delivering the warning and advice outlined above, could be perceived as overly cosy or otherwise inappropriate, or of a nature that Mr Clarke would prohibit.
6.43
6.44
7. The reaction of the News of the World

Change of editors
7.1 The one significant change that occurred at the NoTW following the prosecution was the resignation of Andy Coulson and appointment of Colin Myler as editor. Mr Coulson said in
p69, lines 8-14, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf
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evidence that his resignation was his decision, reached without any prior discussion with Mr Murdoch or Mr Hinton:358 I went to see Les Hinton and I was very clear that I was going to resign, and then I did so. 7.2 Accepting this evidence, which has not been contested in any way, the replacement of Mr Coulson as editor was not a step taken by NI to effect a culture change, so much as a convenient opportunity. On his departure, Mr Coulson received compensation in lieu of notice and compensation for termination of employment.359 This appears to suggest a gesture of good will on the part of NI to Mr Coulson at the point of his personal decision to accept editorial responsibility for what had happened. According to the oral evidence of Rupert Murdoch, Mr Myler was appointed to find out what the hell was going on.360 Mr Murdoch testified after Mr Myler and his version of events could not be put to the latter when he gave evidence in Module 1. Having been given the opportunity to comment on Mr Murdochs account, Mr Myler contends that he was given no such brief either in these somewhat colourful terms or otherwise, and that he simply understood his role as being to edit the paper.361 In response, Rupert Murdoch has clarified that it certainly was his understanding from Les Hinton that Mr Myler was appointed to find out what the hell was going on, and that it would not been possible for the latter to have moved the paper forward by improving its practices and governance, to avoid a repetition of the conduct which had led to the criminal convictions, without ascertaining what had gone wrong in the past.362 The upshot was that Mr Myler appears to have decided that his function should be forward-looking:363 the trauma of what had happened with the Goodman/Mulcaire trial left a very deep, as I say, trauma within the newspaper and the morale of the staff. So I think it was more important to improve the standards and the protocols and the systems that existed, rather than dwell on what was. I think it was more important to say, From now on, this is how were going to work and this is what it is. 7.4 Mr Myler claimed, however, to be uneasy with the situation: Its fair to say that I always had some discomfort and I always the term I phrased was I felt that there could have been bombs under the newsroom floor and I didnt know where they were and I didnt know when they were going to go off. That was my own view. But trying to get the evidence or establishing the evidence that sadly the police already had was another matter.364 7.5
358
7.3
There were steps that Mr Myler could have taken in an attempt to locate and defuse the bombs. He had the ability to analyse every single payment to Mr Mulcaire and to require
p26, lines 16-17, Andy Coulson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-10-May-2012.pdf 359 p26, lines 18-22, Andy Coulson, ibid 360 p28, lines 13-14, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-26-April-2012.pdf 361 fourth witness statement of Rupert Murdoch dated 31 October 2012: gives details of an informal drink with Mr Rupert Murdoch immediately after his appointment as editor of the NoTW 362 para 3 of the third witness statement of Rupert Murdoch dated 6 November 2012 363 p23, lines 7-14, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-14-December-2011.pdf 364 p9, lines 21-25, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-15-December-20111.pdf
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every single journalist who had employed him to justify every single request or task that Mr Mulcaire had been set and every story that Mulcaire had provided. Although in the light of the way in which the paper had dealt with the police investigation, it may have been difficult or embarrassing, he could have sought the assistance of the police not to encourage further investigation but to see whether there were any strands which they had considered which an internal investigation might pursue thereby demonstrating his determination to root out what had happened. Some of these steps might not have been practicable and the impact on morale had to be considered: but some must have been. In the event, he did little to assuage his own discomfort except lay down rules for the future. As to the what had happened, he vigorously and forcefully followed a line which, to pursue the analogy of a bomb under the newsroom floor, simply ignored his privately held fear of an impending explosion.
The one rogue reporter claim

The PCC 7.6 Mr Tim Toulmin, then Director of the Press Complaints Commission (PCC) said that the PCC had neither the legal powers nor the authority vested in it by the newspaper industry to institute an inquiry into other possible instances of unlawful voicemail interception at the NoTW or more generally in the press,365 but that it wanted to do something useful to complement the police inquiry so that light could be shone on what had gone wrong, and so that lessons could be learned to ensure that there was no repetition.366 Accordingly, on 7 February 2007, Mr Toulmin wrote to Mr Myler asking a number of questions about the conduct of Mr Goodman and Mr Mulcaire and asking him what the newspaper proposed to do to ensure that the conduct was not repeated. In his reply, Mr Myler urged the PCC to see the episode in perspective on the basis that it represented:367 an exceptional and unhappy event in the 163 year history of the News of the World, involving one journalist. 7.7 Mr Myler also emphasised the newspapers commitment to the Code of Practice, drawing attention, by way of example, to an episode where it had dismissed a reporter for breaching the provisions of the Code. He said that: 368 Every single News of the World journalist is conversant with the Code and appreciates fully the necessity of total compliance. 7.8 7.9 Mr Myler described Mr Goodman as a rogue exception. This is possibly the first use of what later became established as the one rogue reporter defence.369 Mr Myler also set out the changes that he was making to prevent repetition of the conduct concerned. Those changes were: ensuring that contributors to the newspaper clearly understood their responsibility to comply with the Code and NI policies and procedures; ensuring that all journalists focussed on the importance of the Code and legal compliance and the risk of dismissal for failure to comply; and instituting processes to ensure that large cash sums could not be paid without appropriate authority.370
365
The extent to which the PCC could have instituted enquiries is subject to analysis in the context of the PCC generally p5, para 5.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Tim-Toulmin.pdf 367 PCC phone message hacking report March 2007, para 3.1 368 PCC phone message hacking report March 2007, para 3.2 369 PCC phone message hacking report March 2007, para 5.5 370 PCC phone message hacking report March 2007, paras 5.1-5.9
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7.10
The PCC concluded that: 371 No evidence has emerged either from the legal proceedings or the Commissions questions to Mr Myler and Mr Hinton of a conspiracy at the newspaper going beyond Messrs Goodman and Mulcaire to subvert the law and the PCCs Code of Practice. There is no evidence to challenge Mr Mylers assertion that: Goodman had deceived his employer in order to obtain cash to pay Mulcaire; that he had concealed the identity of the source of information on royal stories; and that no-one else at the News of the World knew that Messrs Goodman and Mulcaire were tapping phone messages for stories. However, internal controls at the newspaper were clearly inadequate for the purpose of identifying the deception. Parliament
7.11
On 6 March 2007, Les Hinton, Chairman of NI, appeared in front of the Culture Media and Sports Committee of the House of Commons (CMS Committee), which at that time was conducting an inquiry into self-regulation of the press. Voicemail interception was only briefly touched on at the hearing. Mr Hinton told the Committee that a, full, rigorous internal inquiry was being carried out and that he (Hinton) was absolutely convinced that Mr Goodman was the only person who knew what was going on.372 The Committee noted this assurance without comment but were highly critical of the financial processes in place in NoTW that they had been told allowed Mr Goodman to employ Mr Mulcaire to intercept voicemail messages without appropriate oversight or authority from senior executives.
Dismissal of Clive Goodman and his appeal

7.12 It appears that Mr Goodman expected to continue his employment at the NoTW once he had served his sentence of imprisonment. In my judgment, that perception is, in itself, quite extraordinary. There can be few employees who would expect to return to their jobs after serving a sentence of imprisonment for a serious criminal offence, particularly an offence committed in the course of their employment and, even more so, where (as was contended) what he was doing was wholly unknown and had been managed and financed by deceit. The NI Disciplinary Policy and Procedure provided for immediate dismissal without notice, or payment in lieu of notice, for various forms of gross misconduct including: 373 conviction for a criminal offence (including outside of work) which may bring News International into disrepute or otherwise impact on your suitability for employment with the Company. 7.13 In the circumstances Mr Goodman should properly have expected to be dismissed without any form of financial compensation. However, Mr Goodman felt he had been given assurances by both Tom Crone (the lawyer employed by NI who had ultimate legal responsibility for editorial legal matters at the NoTW) and Andy Coulson that he could return to work at the NoTW once he had served his sentence providing he did not implicate in criminal conduct any of the newspapers other staff.374 Whilst Mr Crone denied the allegation that there was any
PCC phone message hacking report March 2007 pp103-104, paras 6.3-6.4 [PLEASE INSERT HYPERLINK] pEv40, Q95-96, Culture, Media and Sport Seventh Report, http://www.publications.parliament.uk/pa/cm200607/ cmselect/cmcumeds/375/37502.htm See also Q1402, Damian Collins, http://www.publications.parliament.uk/pa/ cm201012/cmselect/cmcumeds/uc903-v/uc90301.htm 373 News International Disciplinary Policy and Process: not publicly available. 374 Letter from Clive Goodman to NI 2 March 2007 (not available on Inquiry website)
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suggestion that Mr Goodman might be kept on as the price for his silence, Mr Crone did say that Mr Coulson had indicated that: 375 he hoped that whatever happened to Clive Goodman at the end of the criminal process, and if he was found guilty and served his sentence, he would be able to come back to the News of the World in some sort of role, having served his sentence. Not a reporting role that involved interaction with the public in any other way, but perhaps book filleting or book serialisation, possibly. 7.14 In the event, this view was not shared by Mr Hinton because on 5 February 2007 Mr Hinton wrote to Mr Goodman terminating his employment. The letter said: 376 I recognise this episode followed many unblemished, and frequently distinguished, years of service to the News of the World. In view of this, and in recognition of the pressures on your family, it has been decided that upon your termination you will receive one years salary. In all the circumstances, we would of course be entitled to make no payment whateverYou will be paid, through payroll, on 6 February 2007, 12 months base salary, subject to normal deductions of tax and nation insurance. 7.15 The terms of the dismissal were considerably more generous than the terms of his employment required, but Mr Goodman was not content. On 2 March 2007, Mr Goodman wrote to Daniel Cloke, then head of Human Resources at NI, appealing against his dismissal. His first two grounds of appeal were first, that the decision was perverse because his actions were carried out with the full knowledge and support of executives at the NoTW and second, that the decision was inconsistent because others, who were still working for the NoTW, were engaged in the same illegal procedures.377 On 14 March 2007, Mr Goodman submitted a lengthy list of documents which he wanted NI to provide for the purposes of his appeal. The list included emails passing between him and various named members of staff. On 9 May 2007 Jonathan Chapman, then Director of Legal Affairs for NI, instructed solicitors, Harbottle & Lewis, to carry out a review of the emails identified by Mr Goodman. Mr Chapman sent formal instructions by email the following day to Lawrence Abramson, then managing partner at Harbottle & Lewis, which stated that:378 Because of the bad publicity that could result in an allegation in an employment tribunal that we had covered up potentially damaging evidence found on our email trawl, I would ask that you carry out an independent review of the emails in question and report back to me with any findings of material that could possibly tend to support either of Mr Goodmans contentions. 7.17 It is revealing that the concern was to identify material that would cause the company further embarrassment or damage their prospects in an Employment Tribunal rather than ascertain whether the allegations made by Mr Goodman were true.
7.16
p92, lines 11-17, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-13-December-20111.pdf 376 Letter from Les Hinton to Clive Goodman 5 February 2007 (not available on Inquiry website) 377 Appeal letter from Clive Goodman (not available on Inquiry website); p11, lines 10-20, Lawrence Abramson, http:// www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-13-December-2011.pdf 378 pp9-10, lines 20-2, ibid
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7.18
On 25 May 2007 Mr Abramson emailed Mr Chapman draft wording of his advice for consideration by him before it was formalised.379 The email read: We have on your instructions searched the emails that you were able to let us have access to from the accounts of [redacted names] I can confirm that we did not find any evidence that proved that [redacted names] knew that Clive Goodman, Glenn Mulcaire or any other journalists as the News of the World were engaged in illegal activities prior to their arrest.
7.19
Later that day Mr Chapman suggested an addition to the advice, namely:380 Equally, having seen a copy of Clive Goodmans notice of appeal of 2 March 2007, we did not find anything that we consider to be directly relevant to the grounds of appeal put forward by him.
7.20
Mr Abramson declined to include this sentence because: I think the short answer is it wasnt the exercise wed been asked to conduct. Wed been asked to look for whether there was evidence in emails that supported specific allegations, and to have then signed off on an opinion that was much wider than the exercise wed been conducting would have been wholly wrong and I couldnt have done that.
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7.21
The final wording was the following: I can confirm that we did not find anything in those emails which appear to us to be reasonable evidence that Clive Goodmans illegal activities were known about and supported
7.22
It is important to note the limited exercise that Harbottle and Lewis had been asked to carry out and the correspondingly limited comfort that NI could legitimately derive from it when considering the broad question of whether there was evidence that the conspiracy to intercept voicemail messages extended beyond Mr Goodman and Mr Mulcaire.
The limits of the internal investigation

7.23 Despite the assurance given by Mr Hinton to the CMS Committee that a full, rigorous internal inquiry was being carried out, there is no evidence that anyone at the NoTW made any proper effort to investigate the veracity of the allegations made by Mr Goodman.381 Apart from the review of the emails by Harbottle and Lewis, the internal investigation of the allegations made by Mr Goodman was limited to Mr Cloke and Mr Myler, speaking to the individuals named by Mr Goodman to ask whether there was any substance to them. Mr Myler said in his evidence that: 382 in the absence of any evidence to support Mr Goodmans allegations they were denied. Very strongly.
p18, lines 2-10, ibid p23, lines 3-6, ibid 381 It is of course possible that Burton Copeland had been instructed to conduct such an investigation, but it has not been able to pursue whether this was the case because of NIs refusal to waive legal professional privilege in respect of the instructions given to, or advice received from, Burton Copeland 382 p11, lines 18-22, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-15-December-20111.pdf
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7.24
Mr Chapman said that the right thing to do was to investigate whether there was any foundation to the allegations.383 However, Mr Myler and Mr Cloke appear to have accepted at face value the denials of those individuals named by Mr Goodman. It does not appear that anyone at the title took seriously the possibility that the allegations were well-founded or, given the very substantial sums that he had been paid, even investigated precisely what Mr Mulcaire had been doing and for whom he had been working. Mr Crone said during his evidence that he had believed from the outset that the claim that the unlawful voicemail interception had been the action of one rogue reporter was wrong.384 Mr Crone had attended all the hearings at the Central Criminal Court, including the hearing at which Goodman and Mr Mulcaire were sentenced. He had formed a strong impression that what was said about others at News International commissioning Mulcaires accessing in relation to the non-royal victims was based upon more than circumstantial evidence.385 Mr Crone agreed during his evidence that one reason for forming that view was that counts 16 to 20 did not relate to Royal issues and would therefore be outside Mr Goodmans area of interest.386 When asked whether he had shared his view with others at NI that the one rogue reporter claim was wrong he replied: 387 I had discussions which were privileged, yes. But I dont think any of them involved me saying theres clear and hard evidence, to be perfectly honest.
7.25
7.26
Mr Crone explained that he took no other action because the police showed no signs of continuing the investigation or making more arrests and the companys primary thought was to draw a line under it.388 Certainly it appears that whatever privileged discussions Mr Crone might have had he did nothing to change the view that Mr Myler had formed, namely that there was no evidence to justify an investigation into possible unlawful or unethical behaviour in the newsroom at the News of the World. Mr Myler explained that apart from the investigations into the allegations made by Mr Goodman during his appeal against his dismissal, he relied heavily on the fact that the police investigation had gone no further than the charges against Mr Goodman and had not resulted in any suggestion by the police to the News of the World that there was a wider problem.389
The Goodman and Mulcaire settlements

7.27 In July 2007 NI settled a claim for unfair dismissal brought by Mr Goodman, making a payment of a further 140,000 in addition to a 90,000 notice payment that had been made in February 2007 when Mr Goodman was dismissed.390 The focus in dealing with Mr Goodmans claims was, according to Mr Chapman, to manage the risk of further reputational damage to the company. The settlement agreement contained a confidentiality clause.391
pp93-94, lines 25-2, Jonathan Chapman, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Transcript-of-Morning-Hearing-14-December-2011.pdf 384 p98, lines 7-11, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-13-December-20111.pdf 385 p94, lines 8-13, Tom Crone, ibid 386 p96, lines 1-9, Tom Crone, ibid 387 p98, lines 16-19, Tom Crone, ibid 388 p100, lines 24-25, Tom Crone, ibid 389 pp7-8, lines 24-12, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-15-December-20111.pdf 390 p103, lines 11-15, Jonathan Chapman, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Morning-Hearing-14-December-2011.pdf 391 p108, lines 14-15, Jonathan Chapman, ibid
383
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7.28
The circumstances of Mr Goodmans dismissal create an impression that his criminal conduct was viewed not as an outrageous breach of the law, the Code and the companys policies, but as something akin to a regrettable oversight in an old and trusted employee. The response to the conviction and Mr Goodmans allegations suggest that the possible widespread use of illegal methods of obtaining information was regarded, at the highest, as a reputational risk if exposed. There is no sign that the News of the World regarded the fact that criminal conduct may have flourished as a significant risk either from a corporate governance or operational perspective. The potential underlying truth of the allegations was apparently regarded as a second order issue. Running parallel with the dispute between NI and Mr Goodman was the similar dispute between NI and Mr Mulcaire, who was not an employee but who sought similar financial recompense. In April 2007 Mr Mulcaire claimed that his contract with NI gave him employment rights and that NI had not followed the correct statutory procedures when it terminated the contract in January 2007. The view was taken that there was a significant risk that an employment tribunal would find that Mr Mulcaire did have employment rights. Mr Chapman explained his analysis: When I analysed the position, based on the usual parameters, mutuality of obligation, control, right of substitution, it looked very much to me like Mr Mulcaire was an employee, and I understand that subsequently Farrers took that view as well.392 Mr Mulcaire was paid approximately 80,000.393 Mr Chapman agreed that the reasoning process that led to alighting upon a settlement figure for Mr Mulcaire was more or less the same as that which applied to Mr Goodman, namely the need to limit reputational harm.394
7.29
7.30
The approach of the company to severance payments or payments in lieu to Mr Goodman and Mr Mulcaire does not appear to convey corporate concern at their criminality; the payment to Mr Coulson395 may be considered slightly differently but is starkly in contrast to its approach to other employees such as Mr Driscoll.396
The Gordon Taylor litigation

7.31 The next significant event was the civil claim for damages brought by Gordon Taylor in the spring of 2008. As Mr Crone, Mr Chapman and Mr Myler stated repeatedly in evidence, the desire of the News of the World was to draw a line under the matter. As a result, the claim cannot have been well-received, not just because of the obvious financial implications, but also because of the potential reputational harm that would result even from only a repeat exposure of the facts of the prosecution of Mr Goodman and Mr Mulcaire. The claim was brought against NGN and Mr Mulcaire for breach of confidence, misuse of private information and breach of privacy. When Mr Taylor served his claim he provided no documentary evidence to support it and NGN filed a defence denying any involvement. However, Mr Taylor then applied for, and obtained, an order requiring the police to release the prosecution papers and evidence to his solicitors. Among those papers was the contract between Mr Mulcaire and the News of the World to pay Mr Mulcaire 7,000 for information
7.32
pp2-3, lines 22-1, Jonathan Chapman, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Afternoon-Hearing-14-December-2011.pdf 393 pp1-2, lines 25-3, Jonathan Chapman, ibid 394 p3, lines 2-9, Jonathan Chapman, ibid 395 para 7.2 above 396 Part F, Chapter 4
392
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about an affair being conducted by Mr Taylor and the for Neville email, which enclosed transcripts of voicemail messages from Mr Taylors mobile phone.397 Mr Crone recorded in a briefing note on 24 May 2008 that this material was fatal to our case.398 Recognising the inevitable, Mr Crone instructed NGNs solicitors, Farrer & Co, to make an offer to Mr Taylor of 150,000 plus costs. 7.33 In the light of the awards that had been made for breach of confidence and invasion of privacy, this was a very substantial offer but Mark Lewis, of the solicitors instructed to pursue the claim, replied that Mr Taylor was not interested in settling and wanted to take the matter to trial. Mr Crone sought advice from Michael Silverleaf QC about how NGN should proceed.399 The advice from Mr Silverleaf, dated 3 June 2008, was very clear and echoed what Mr Crone had already concluded. Mr Silverleaf concluded that: 400 NGNs prospects of avoiding liability for the claims of breach of confidence and invasion of privacy are slim to the extent of being non-existent. 7.34 He found it difficult to give clear advice on the level of damages that might be expected but put it within a range of 25,000-250,000 or even slightly more.401 In addition, Mr Silverleaf reflected on what the papers told him about the quality of the defence filed by the News of the World, stating: 402 In the light of these facts, there is a powerful case that there is or was a culture of illegal information access used at NGN in order to produce stories for publication. 7.35 Also on 3 June 2008 Julian Pike, a partner at Farrer & Co, told Mr Taylors solicitors that NGN was about to make an offer of 350,000. He said that NGN were happy that this would not be beaten by the amount that might be awarded at trial, but that they were prepared to pay the higher amount in order to resolve the matter that week and on the basis that the deal would be confidential.403 Mr Pike then spoke to Mr Taylors solicitor, Mr Lewis, on 6 June 2008. Mr Lewis indicated that Mr Taylor would want at least 1 million plus costs not to open his mouth. The report of the conversation made by Mr Pike shows a desire on the part of Mr Taylor to pursue the claim in order to demonstrate that voicemail interception was rife in the organisation.404 Ultimately NGN settled with Mr Taylor for 700,000, of which 425,000 was attributed to damages and the balance to costs.405
Who knew what?

7.36
397 398
It is not clear whether Mr Crone, who attended the Central Criminal Court, made any senior executives aware of the key matters that indicated that the practice of unlawful voicemail
p1, Julian Pike, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-JCP2-Select-Commitee.pdf p1, Julian Pike, ibid 399 p1, Julian Pike, ibid 400 p1, para 6, Julian Pike, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-JCP21-SelectCommitee.pdf 401 p1, para 17, Julian Pike, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-JCP24-SelectCommitee.pdf 402 p39, lines 12-16, Julian Pike, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-13-December-2011.pdf 403 p1, Julian Pike, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-JCP8-Select-Commitee.pdf 404 p1, Julian Pike, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-JCP11-Select-Commitee. pdf 405 Module 1 Opening Submission by Robert Jay QC, p82, lines 11-19, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Transcript-of-Morning-Hearing-14-November-2011.pdf
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interception was not confined to Mr Goodman. Those matters were: the content of counts 16 to 20 on the indictment; the fact that they were brought against Mr Mulcaire but not Mr Goodman; the fact that they related to victims who were of no apparent interest to a royal correspondent and the sentencing remarks of Gross J. Mr Chapman said that he had obtained a copy of the sentencing remarks at the request of Daniel Cloke, and on behalf of Mr Crone, but that he did not read them himself.406 Mr Myler claimed to be unaware of the sentencing remarks.407 There is no reason to doubt what Mr Myler says but, given the background and his own perception of the newsroom, this lack of interest is also remarkable. 7.37 In short, Mr Crone and Mr Chapman were both clearly aware of the allegations made by Mr Goodman in his appeal against dismissal, but there is no evidence that they were known more widely. Mr Myler was also aware of them to the extent that they were demonstrated by the documents disclosed by the police for the purposes of the claim brought by Mr Taylor (these documents were also seen by Mr Crone). The extent of James Murdochs knowledge of the allegations is not clear. There was a discussion between Mr Myler and James Murdoch of which neither participant claims to have a substantial recollection. However, Mr Pike made a note of a subsequent telephone conversation that he had with Mr Myler on 27 May 2008,408 during which Mr Myler relayed to Mr Pike what he explained were the relevant points of his conversation with James Murdoch. The note is not straightforward to interpret. It makes reference to the fact that Mr Goodman sprayed around allegations409 but it is not clear whether that was a reference to what had been discussed with James Murdoch or to the beginning of a subsequent discussion between Mr Myler and Mr Pike. James Murdoch contended that the note of his conversation with Mr Myler did not go beyond recording his view that they should wait for the opinion of leading Counsel, which had already been sought.410 James Murdoch said in evidence that Mr Myler had not taken the opportunity to alert him to the fact that there were allegations that voicemail interception at the News of the World went wider than Mr Goodman.411 There is also a dispute about how high within the organisation the advice from Mr Silverleaf was seen. There is no doubt that Mr Crone412 read it. Mr Myler said in evidence that he was told the gist of it but did not see the actual advice and was not told that Mr Silverleafs opinion was that there was a powerful case that there is or was a culture of illegal information access used at NGN in order to produce stories for publication.413 James Murdoch said that the opinion of Mr Silverleaf was mentioned to him but not shown to him (which he explains is not unusual as the Chief Executive), and that he was not told that there was new evidence that NGNs involvement in voicemail interception went beyond Mr Goodman.414 What is
7.38
7.39
pp95-96, lines 22-14, Jonathan Chapman, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Transcript-of-Morning-Hearing-14-December-2011.pdf 407 pp8-9, lines 23-6, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-15-December-20111.pdf 408 p1, Julian Pike, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-JCP7-Select-Commitee.pdf 409 ibid 410 pp24-26, lines 7-12, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcriptof-Morning-Hearing-24-April-2012.pdf 411 pp28-29, lines 22-4, James Murdoch, ibid 412 p19, lines 14-19, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-14-December-2011.pdf; p1, lines 3-9, Julian Pike, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/12/Transcript-of-Afternoon-Hearing-13-December-20111.pdf 413 p12, lines 3-24, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-15-December-20111.pdf 414 p37, lines 2-13, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-24-April-2012.pdf
406
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clear is that, even following the unequivocal opinion of Mr Silverleaf, no action was taken to investigate whether there was a culture of obtaining information by unlawful means. Instead, the full focus of the management team was on handling the litigation and the potential reputational repercussions. 7.40 On 7 June 2008 Mr Myler forwarded an email chain to James Murdoch which made clear that Mr Taylor was asserting that unlawful information gathering techniques were rife within the organisation.415 The message from Mr Myler read: James, update on the Gordon Taylor Professional Football Association case. Unfortunately its as bad as we feared. The note from Julian Pike of Farrers is extremely telling regarding Taylors vindictiveness but again that speaks for itself. It would be helpful if Tom Crone and I could have five minutes with you on Tuesday. 7.41 James Murdoch explained in evidence that he did not read all the email chain, and did not read the specific allegation made by Mr Taylor because he received the email on a Saturday when he was with his family. He said that since he was due to meet Mr Myler to discuss the issue on the following Tuesday he did not feel he needed to read beyond the request for a meeting.416 James Murdoch replied to the email within two minutes of receiving it. The speed and content of his reply appear to support his claim not to have focused on the key allegation. On 10 June 2008, Mr Myler, Mr Crone and James Murdoch met to discuss the civil claim brought by Mr Taylor. Mr Crone said in evidence that he probably took with him copies of Mr Silverleafs opinion, the pleadings from the case, spare copies of the front page of the for Neville email and his earlier briefing note.417 Crone said that he could not recall whether any of these documents were handed to James Murdoch but that he was pretty sure that he held up the front page of the for Neville email.418 Mr Crone was very clear that the for Neville email was discussed, and that James Murdoch was told that it was direct and hard evidence of involvement in voicemail interception beyond Mr Goodman and Mr Mulcaire.419 Mr Myler said that he did not have any useful recollection of what specifically was discussed at the meeting or what documents were discussed or shared. James Murdoch said in evidence that he was told at the meeting that there was evidence that linked the interception of Mr Taylors voicemail messages to the NoTW and that the case would certainly be lost and should be settled. His recollection was that Mr Crone and Mr Myler told him that counsels advice on the level of settlement was that: the number could be upwards of 425,000, so they said half a million to a million pounds with costs in it. James Murdoch said that it was established at the meeting that it was better to settle at an amount that would avoid litigating a case that would be lost than drag up all these things, a painful episode in the past and what not.420 He also stated that the discussion about the for Neville email was limited to the fact that it linked the NoTW to the interception of Mr Taylors voicemail messages and that there was no discussion about the fact that it suggested the involvement of other NoTW journalists. He said that he was not shown a copy of the
7.42
7.43
7.44
p31, lines 12-13, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-24-April-2012.pdf 416 pp30-31, lines 14-3, James Murdoch, ibid 417 pp38-39, lines 22-4, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-14-December-2011.pdf 418 p39, lines 6-8, Tom Crone, ibid 419 p39, lines 23-4, Tom Crone, ibid 420 p35, lines 10-11, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-24-April-2012.pdf
415
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email421 or the opinion of Mr Silverleaf, nor told that the opinion of Mr Silverleaf was that there was evidence that the practice of voicemail interception was used by journalists other than Mr Goodman.422 7.45 Given the significance of the issue, it is necessary also to deal with the extent to which Rupert Murdoch had knowledge of the relevant facts. Rupert Murdoch said in evidence that he knew nothing of the settlement of the claim brought by Mr Taylor when it happened in 2008. He said that he first learned of it in 2009 and was very surprised by the size of the settlement.423 He recalled discussing with James Murdoch why the settlement was so high, but denied that there was any discussion about the fact that Mr Taylor had evidence of further illegality at NoTW or that NGN had had to settle at that level to buy the silence of Mr Taylor. He said that James Murdochs explanation for the value of the settlement was that, though high, it was less than the anticipated cost of a full trial.424 Rupert Murdoch claimed that senior management at NI:425 were, all misinformed and shielded from anything that was going on there... theres no question in my mind that maybe even the editor, but certainly beyond that someone took charge of a cover-up which we were victim to. 7.47 He went on to say that the culture of cover-up emanated from: one or two very strong characters or the person Im thinking of..was a clever lawyer and forbade people to go and report to Mrs Brooks or to James. 7.48 Both Mr Myler and Mr Crone strongly denied that there was a culture of cover up at the NoTW. Mr Crone accepted that everyone hoped that it would all go away if it could be kept quiet,426 but contended that the thinking was not to cover up criminality but to avoid reputational damage through bad publicity.427 There is undoubtedly a fine line between the two. Mr Myler, similarly, said: 428 I dont believe it was a cover-up.and I dont believe its wrong or unreasonable of any business to try to protect the reputation of itself, particularly after what had happened in the course of 2006 and 2007. 7.49 Whatever the truth of what was discussed on 10 June 2008, the evidence outlined above points to a serious failure of governance within the NoTW, NI and News Corporation. There was a failure on the part of the management at the NoTW to take appropriate steps to investigate whether there was evidence of wrongdoing within the organisation. Although I endorse the right of any business to seek to protect its reputation, it surely must first take every step to get to the bottom of what had happened. To argue that the decision by the police to conclude their criminal investigations precluded the requirement for a proportionate
7.46
p36, lines 8-24, James Murdoch, ibid p37, lines 5-13, James Murdoch, ibid 423 p34, lines 6-22, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/04/Transcript-ofMorning-Hearing-26-April-2012.pdf 424 pp34-37, lines 23-6, Rupert Murdoch, ibid 425 p24, lines 3-9, Rupert Murdoch, ibid 426 p103, lines 5-10, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-13-December-20111.pdf 427 pp41-42, lines 24-2, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-14-December-2011.pdf 428 p35, lines 15-23, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-15-December-20111.pdf
422
421
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but robust internal investigation is, in the circumstances, of real concern; and the attitude at NoTW to the police investigation equally meant that reliance could not be put on their having done so. In any event, if the explanation of James and Rupert Murdoch is correct, far from simply limiting external damage to reputation, one or more parts of the management at the NoTW was engaged in a determined cover-up to keep relevant information about potential criminal activity within the organisation from senior management within NI. 7.50 Having made that point, however, I must make it clear that if James Murdoch was unaware of the allegations, his lack of knowledge is, at least in part, only as a result of chance, rather than as the consequence of a sustained campaign by Mr Myler or Mr Crone (if there was one) deliberately to keep him in the dark. The fact is that had he read, in detail, the entirety of the email that he received on 7 June 2008, there was sufficient to put him onto a line of enquiry which could have led to an investigation of the entire issue. It also depends on precisely what he was told on 10 June 2008. It is sufficient to say that if James Murdoch had been the victim of a cover-up, or an attempt to minimise the gravity of the position, then the accountability and governance systems at NI would have to be considered to have broken down in an extremely serious respect. If James Murdoch was not the victim of an internal cover up then the same criticism can be made of him as of Mr Myler or Mr Crone in respect of the failure to take appropriate action to deal with allegations of widespread criminality within the organisation. A similar analysis stands in respect of News Corporation. Although there is no evidence from which I could safely infer that Rupert Murdoch was aware of a wider problem, it does not appear that he followed up (or arranged for his son to follow up) on the brief that he believed had been given to Mr Myler to find out what the hell was going on, leaving the matter solely in the hands of Mr Hinton. If News Corporation management, and in particular Rupert Murdoch, were aware of the allegations, it is obvious that action should have been taken to investigate them. If News Corporation were not aware of the allegations which, as Rupert Murdoch has said, have cost the corporation many hundreds of millions of pounds, then there would appear to have been a significant failure in corporate governance and in particular in the effective identification and management of risks affecting NI and, thus, the corporation. I have given careful consideration as to whether I should go further, and conclude that Mr Crones version of events as to what occurred on 10 June 2008 should be preferred to that of James Murdoch. There are aspects of the account of Mr Murdoch that cause me some concern: in particular, it is surprising if the gist of Mr Silverleafs opinion was not communicated to him in circumstances where the potential reputational damage to the company, of which he was CEO, was likely to be great if an early settlement of the claim brought by Mr Taylor were not achieved. Furthermore, Mr Myler and Mr Crone had no reason or motive to conceal relevant facts from the senior man, as borne out by the former sending James Murdoch the chain of emails containing the bad news on the afternoon of Saturday 7 June 2008. Not merely does this throw light on Mr Mylers state of mind on that date, it provides some indication as to what the agenda might have been for the meeting three days later. On the other hand, I also have serious concerns about the evidence of Mr Crone and Mr Myler about this meeting: given the significance of the issue, it is surprising that there was not a full blown risk analysis with options for James Murdoch to consider. After all, this litigation represented the first of a number of potential actions and there was, at the very least, a real risk that the problems were
7.51
7.52
7.53
7.54
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likely to get worse as the other known victims (as represented by the criminal investigation if none other) could and doubtless would also pursue claims. 7.55 It is here that I must return to the Terms of Reference and to recognise that the detail of who knew what is properly part of Part 2 of this Inquiry not least because of the ongoing criminal investigation. Furthermore, the nature of the process of this part of the Inquiry has meant that, in relation to these extremely fact sensitive meetings, there has been insufficient opportunity for detailed cross examination of precisely what was said by whom to whom. In the circumstances, I do not seek to reach any conclusion about precisely what transpired at this meeting. For present purposes, it is sufficient to repeat that whoevers account is correct as to what happened on 10 June 2008, there was no subsequent analysis of the consequences in relation to oversight and internal governance. In truth, at no stage, did anybody drill down into the facts to answer the myriad of questions that could have been asked and which could be encompassed by the all embracing question what the hell was going on? These questions included what Mr Mulcaire had been doing for such rewards and for whom?; what oversight had been exercised in relation to the use of his services?; why had Mr Goodman felt it justifiable to involve himself in phone hacking?; why had he argued that he should be able to return to employment and why was he being (or why had been) paid off. On any showing, these questions were there to be asked and simple denials should not have been considered sufficient. This suggests a cover up by somebody and at more than one level. Although this conclusion might be parsimonious, it is more than sufficient to throw clear light on the culture, practices and ethics existing and operating at the News of the World at the material time. The way in which further litigation was managed (including the action brought by Max Clifford) only serves to underline the same issue both justifying and reinforcing the same conclusion.
7.56
8. July 2009: The Guardian

Introduction
8.1 Although the NoTW was having to cope with the consequences of Operation Caryatid both in relation to Clive Goodman, Glenn Mulcaire, Andy Coulson and all those who then wished to pursue claims for damages, in the immediate aftermath of the prosecution and notwithstanding what journalists knew, believed or had gossiped about in relation to voicemail interception, until the Guardian article, there is no evidence that the wider issue (or the police investigation) was considered in any detail by the press. When the Guardian (and, subsequently, the New York Times) did publish articles, both the Police and the PCC reacted. They did so, however, in ways that have raised more questions than they answered and, in the context of this Part of the Inquiry, require detailed consideration. More specifically, this Inquiry must address the public concern about the decisions taken by the MPS in 2009 and 2010 to the effect that there was nothing in what was reported in the press to justify further examination despite the claim that the MPS itself held evidence that implicated other journalists and which would merit further investigation. In particular, it boils down to the question whether any relationship between the MPS and NI, or between officers within the MPS and senior management in NI influenced the decisions which were then made.
8.2
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8.3
To address that issue, the focus of this section is upon the reasons why, until January 2011, the MPS, and the then Assistant Commissioner, John Yates, in particular, asserted and maintained the position that there was no evidence of further criminality and that absent new evidence, there was no reason to re-open the 2006 investigation, despite the facts, first, that the detectives involved in Operation Caryatid knew that there was evidence implicating other journalists, but which had not been taken further in 2006 because of resource constraints and, second, that the police held vast quantities of material that had not been fully analysed in 2006.
The allegations made by the Guardian

8.4 On 8 and 9 July 2009 the Guardian published an article429 which exposed that NGN had paid out more than 1 million to settle claims for the reason that the claims threatened to reveal evidence of its journalists repeated involvement in the use of criminal methods to obtain stories. Those criminal methods were alleged to include using private investigators to intercept the mobile phone voicemail messages of numerous public figures, including cabinet ministers, MPs, actors and sportspeople. The article referred specifically to the claim brought by Gordon Taylor and stated: Today, the Guardian reveals details of the suppressed evidence which may open the door to hundreds more legal actions by victims of News Group, the Murdoch company that publishes the News of the World and the Sun, as well as provoking police inquiries into reporters who were involved and the senior executives responsible for them. 8.5 The article claimed that the evidence posed difficult questions for Andy Coulson, Rupert Murdoch executives and, in addition: (a) (b) (c) 8.6 the MPS who did not alert all those whose phones were targeted; the CPS, which did not pursue all possible charges against News Group personnel; and the PCC, which claimed to have conducted an investigation but failed to uncover any evidence of illegal activity.
The article referred to the assertion of NI, following the prosecution of Mr Goodman and Mr Mulcaire, that it knew of no other journalist who was involved in voicemail interception and that Mr Goodman had been acting without its knowledge. The article then went on: However, one senior source at the Met. police told the Guardian that during the Goodman inquiry, officers had found evidence of News Group staff using private investigators who hacked into thousands of mobile phones. Another source with direct knowledge of the police findings put the figure at two or three thousand mobiles. They suggest that MPs from all three parties and cabinet ministers, including former deputy prime minister John Prescott and former culture secretary Tessa Jowell, were among the targets
8.7
The article referred to the fact that in the claim brought by Mr Taylor, the court had ordered the MPS to disclose evidence obtained during its investigation into Mr Goodman and then reported as follows:
429
John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-1pdf.pdf
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The Scotland Yard files included paperwork which revealed that, contrary to News Groups initial denial, Mulcaire had provided a recording of the messages on Taylors phone to a News of the World journalist who had transcribed them and emailed them to a senior reporter; and that a News of the World executive had offered Mulcaire a substantial bonus payment for a story specifically related to the intercepted messages. 8.8 The article also reported that, faced with this evidence, NI began offering huge sums of money to Mr Taylor to settle the case and secure a confidentiality clause. It continued: The Scotland Yard paperwork also provided evidence that the News of the World had been involved with Glenn Mulcaire in his hacking the mobile phones of at least two other figures from the world of football. They, too, filed complaints, which were settled earlier this year when News International paid a total of more than 300,000 in damages and costs on condition that they, too, signed gagging clauses. The Guardians understanding is that the paperwork disclosed by Scotland Yard to Taylor is only a fraction of the total material they gathered on News Groups involvement with Glenn Mulcaire. 8.9 The Guardian had made a clear allegation that evidence implicating journalists other than Mr Goodman had already been obtained by the police during the original investigation. It was not the case that the Guardian was alleging that it had uncovered evidence that the police had not been able to obtain themselves. The article prompted a number of responses which bear detailed examination although the response from NI itself can be dealt with shortly. The evidence of James Murdoch was that the article was drawn to his attention and that he asked the management at the NoTW whether the allegation, that Mr Taylor had been paid, in effect, hush money, was true. He said that he was assured:430 That it wasnt true, that there was no other evidence, that there you know, this is a you know, this has been investigated to death and this is, you know, a smear. 8.11 He made no effort to probe further and accordingly there was no investigation of the allegations.
8.10
The police response

8.12 On the morning of 9 July 2009, which was the day after the Guardian article appeared online but when it featured in the print edition of the newspaper, the Metropolitan Police Commissioner, Sir Paul Stephenson, was being driven to an ACPO conference. It was quite frequently the case that he would hear something on the radio or read something in the newspaper and ask the matter to be looked into and he heard a discussion on the radio about the allegations made in the article. Sir Paul understood the allegation to be that the MPS had not gone the whole distance in the investigation. He took it to be just yet another headline which he expected the Assistant Commissioner to pick up and deal with.431 In this
p50, lines 5-11, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-24-April-2012.pdf 431 pp69-70, lines 23-8, p71, lines 6-9, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-5-March-2012.pdf; p37, para 94, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/03/Witness-Statement-of-Sir-Paul-Stephenson2.pdf
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case, by reason of his responsibility, John Yates was the natural choice: by then, Mr Yates had succeeded Andy Hayman as the Assistant Commissioner in charge of Specialist Operations.432 8.13 Sir Paul telephoned Mr Yates. Sir Paul and Mr Yates had the common understanding that Mr Yates was not expected to conduct a review of Operation Caryatid but to establish the facts surrounding the investigation.433 As Mr Yates stressed:434 The request was to establish the facts. There has been some misunderstanding and debate about the term review a review in police terms is a comprehensive piece of work which involves a substantial number of people reviewing an entire investigation or particular aspects of one Reviews are resource intensive and there has to be a compelling reason for a decision to devote staff and officers to undertake one. New evidence or new information could obviously be a compelling reason, although it is likely that a scoping exercise would be carried out first to decide whether such a decision was merited. The article of 9 July 2009 provided no such new evidence or new information that merited a full review. 8.14 An issue that arises immediately is whether it was appropriate for Mr Yates to conduct the exercise at all given the nature of his relationship with Neil Wallis.435 This was significant because, according to the Guardian, there appeared to be a conspiracy involving reporters at the NoTW which possibly encompassed senior executives responsible for reporters. Needless to say Mr Wallis, as deputy editor of the NoTW, was someone who on the face of things fell within this latter category and there was therefore a risk that far from assuaging concern, should the nature of his friendship become public knowledge, Mr Yates would exacerbate it. Police action should always be capable of withstanding the test of public scrutiny and both the independence of decision-making and the appearance of the same are vital to this. Whilst there is no evidence to cause me to suspect that Mr Yates was, in fact, influenced in his decision-making by his friendship with Mr Wallis, I have no doubt that he should not have accepted the task nor maintained responsibility for considering subsequent allegations made in the press; particularly (as was the event), if he was to dismiss the concern, he risked creating a perception that the decision-making of the MPS was not independent or impartial, but influenced by his friendship. In response to the suggestion that he should not have undertaken the fact-finding exercise in the light of his relationship with Mr Wallis, Mr Yates said:436 from 2005, 2006 onwards, whenever Caryatid started, there was never any question of Mr Wallis being involved. He hadnt resigned, he continued to work at the newspaper. There was no evidence in July 2009 ... So as far as we were aware, you had Mr Goodman, as a cog in a large organisation, arrested for wrongdoing and sent to prison. That, as far as I was aware at the time and others were aware, no other evidence to suggest others involvement, does that
p70, lines 9-15, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-5-March-2012.pdf 433 p82, lines 18-24, ibid 434 para 110, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Yates.pdf 435 Part G, Chapter 3 paras 4.61-4.69 deals with this issue from the perspective of the general impact of the relationship between Mr Yates and employees of the NoTW. Although the facts are repeated, it is important to examine this issue from both perspectives and in context 436 pp31-32, lines 11-10, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf
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mean you cut off relationships with a very influential section of the media? I dont think it does. 8.17 Leaving aside for the time being the misconception that there was no other evidence to suggest others involvement, in this response, Mr Yates missed the point. It was no answer to state that there was no evidence to suggest that Mr Wallis was involved in unlawful voicemail interception because the Guardian was claiming precisely that senior executives could be involved and that there was evidence that they were. On analysis, this response betrays a closed mind-set because it suggests that Mr Yates had already dismissed the very question he was being asked to consider, even if on a limited basis: namely whether the police held evidence of a conspiracy to intercept communications that went beyond Mr Goodman and Mr Mulcaire and which they should now be considering. Further, in this answer Mr Yates did not grapple with the fact that his friendship with Mr Wallis might create a perception that he would be influenced in his decision-making. When challenged about the perception created he said: 437 No, I take of course I take your point, but I think the benefit of hindsight once again comes into play because in July 2009 there was nothing to suggest that Wallis was involved in any way whatsoever, and whats happened in the last few years, and of course nothing has been proven yet, but in July 2009 there was just there was no indication at all, and I did this very dispassionately, and I take your point about the perception, but it didnt appear to me to be a problem then and it didnt appear to others to be a problem then. It is clearly a problem now. 8.18 Mr Yates continued:438 I completely take that as a perception, but what this was on July 9, 2009, was a newspaper article. It didnt present evidence. Newspaper articles, as we all know, can have basis in facts and they can have lots of flour put around them to make them more interesting. I can only go on what the evidence was that day and thats where I got to. 8.19 In those answers Mr Yates failed to deal with the fundamental point that it could be perceived that he did not approach the exercise with a wholly objective mindset. He also appeared not to grasp that it mattered not at all whether he was aware of any evidence implicating Mr Wallis personally, not least because before he embarked on the fact-finding exercise he had no way of knowing what evidence Operation Caryatid had uncovered or what the alleged suppressed evidence comprised. Finally, after a number of questions on the point, he appeared to accept that there was at least the appearance of a lack of disinterestedness because of his close friendship with Mr Wallis,439 although he has since made clear that he denies that it was a misjudgement to undertake the exercise and that he does not accept even that there was a perception that the decision-making for which he was ultimately responsible was not independent and impartial. Mr Yates has also since argued that had the fact-finding exercise uncovered any hint of potential wrongdoing by Neil Wallis personally, then he would at that point have declared a conflict of interest and handed the exercise over to a colleague. I have no doubt that this is correct, but it does not address the fundamental concern that the general allegation in the
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pp61-62, lines 19-4, ibid p62, lines 13-19, ibid 439 p63, lines 4-6, ibid
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Guardian and the circumstances could almost inevitably create concern that he might not approach the evidence with sufficient objectivity and independence of mind. 8.21 During his evidence Mr Yates was understandably eager to stress that in reality his friendship with Mr Wallis had no bearing on his decision-making. He sought to reinforce this by emphasising that there were informal checks and balances. Mr Yates gave the example that it would be nonsense to suggest that an officer like DCS Surtees would accept a perverse decision just because Mr Yates was a senior officer.440 Whilst factors such as these support my conclusion that the decision-making of Mr Yates was not in fact distorted by his friendship with Mr Wallis, they would not have prevented the perception forming that it was, and that perception is capable of undermining public confidence in his decision. Mr Yates suggested that it could only be said that his decision to undertake the fact-finding exercise was wrong when viewed with hindsight, informed by knowledge of the cover-up undertaken by News International. I simply do not accept that argument: in my judgment, the facts that made it inappropriate for him to look into the allegations made by the Guardian were known at the time. I also observe that the position of Mr Yates was internally inconsistent. On the one hand his thinking was to the effect that this is nothing, we do this all the time, it is no big deal; but on the other hand, he clearly thought it was sufficiently important that he should deal with it himself and that it was necessary for an Assistant Commissioner to front the consideration of the article and, very quickly, to speak to the press about it. There was no question of delegating the task. If it was sufficiently important for him to deal with, he ought to have raised with the Deputy Commissioner, Tim Godwin, or Sir Paul Stephenson whether it would be better if someone else undertake the exercise because the deputy editor of the NoTW was his friend. I conclude this discussion by making clear that I do not suggest that, in reality, he approached the task with anything other than complete integrity and in good faith. Having said that, accepting and retaining the task was, at the time, a misjudgement on his part. Sir Paul believes that Mr Yates did not give thought to whether there was a conflict of interest because of a defensive mindset:441 I suspect that defensive mindset set in very early, for all the reasons I outline, that stopped us challenging ourselves, that stopped us going back and challenging what was the reason for the original investigation stopping short, albeit we didnt know it stopped short. I think that is the more likely reason why Mr Yates didnt decide that he had a conflict or not. 8.25 It is certainly a plausible explanation. Fully articulated (as put by Mr Rhodri Davies QC in his closing address for NI) it is that Mr Yates (and indeed DCS Williams) did not interpret the Guardians article as a non-judgmental suggestion that the practice of voicemail interception merited another look. Rather, he saw it as an unjustified attack on the integrity of the 2006 investigation that it did not occur to him to consider whether it was appropriate for him to carry out the exercise. In addition, this latter question did not subsequently strike him because he made up his mind within the space of what can only have been a few hours that there was no need to look further and that there was no evidence of a conspiracy, least of all one involving Mr Wallis.
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p32, lines 17-23, ibid p75, lines 14-21, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf; Sir Pauls hypothesis that the MPS had a defensive mindset is set out in full at para 8.66 below
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It is right that Sir Paul knew that Mr Yates was a friend of Mr Wallis (although he said that he did not know the extent of the friendship).442 Sir Paul very frankly admitted that he did not make the connection. When it was suggested to him that it might have been inappropriate for Mr Yates carry out the exercise, he said:443 I think youre crediting me with a level of analysis that I wouldnt and didnt give to this matter. It was just another headline, a sort of I dont mean to say this dismissively some noise about an event that I expected someone to pick up and deal with I didnt connect it with Mr Wallis. I didnt give it any particular thought.
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It does not seem, however, that Sir Paul would have acted differently even if he had made the connection between Mr Wallis and the allegations made by the Guardian. Sir Paul said in evidence that:444 Had [Mr Yates] come back to me with this I might have expected him to get somebody within his business group to deal with it and ensure there could be no allegations of impropriety against him. I do have to say this is hypothesis and were speculating just a little, sir that probably Mr Yates would have felt that he was more than equipped to deal with it. It is not as if, in our professional lives, that we dont actually, as chief constables and senior officers, investigate people who are known to us socially and who have been friends, and to actually say somebody else has to deal with it would almost be saying that I do not have sufficient integrity to deal with it. Whether, with hindsight, it might have been wise to do that, I think thats an entirely different question. I can understand why he didnt do it, but with hindsight it might have been wise.
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Sir Paul was challenged on his evidence that chief constables and senior officers investigate people known to them socially and who have been friends. He clarified his evidence as follows:445 Well, as a police officer, when Ive been asked to do discipline and complaints in the past going back years, yes, Ive investigated people who have been known to me.
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This clarification, in fact, answers a different question to that being addressed. When dealing with complaints against the police and internal discipline issues it is inevitable (and particularly so in a small force) that officers will have to deal with colleagues who are known to them. That is very different from leading or taking part in the investigation of civilians who are personal friends (or, I might add, investigating organisations in which personal friends hold leadership responsibilities). There are strict rules about conflicts of interest of this type (including the maintenance of relationships with those who are under investigation) and I do not anticipate for one moment that Sir Paul was distancing himself from those rules.446
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p70, lines 20-22, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf 443 p71, lines 5-12, ibid 444 pp73-74, lines 9-1, ibid 445 p74, lines 3-5, ibid 446 Declarable Interests Standard Operating Procedure 2011
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The fact-finding exercise

8.30 I turn now to the exercise that was conducted to find the facts, which Mr Yates started and on which he announced his conclusion all within the same day as the article had appeared in print, namely 9 July 2009. Mr Yates explained that he received informal briefings about the investigation before he chaired a Gold Group meeting at 11:00hrs: this was a formal meeting to discuss facts and record decisions. Mr Yates said that numerous people who had worked on the enquiry at various levels were involved, including DCS Williams, DCS Surtees and D/Supt Southworth.447 According to DCS Williams, he was with Mr Yates for most of the day, explaining to him what the police had done during the original investigation. The documents shown to Mr Yates were the strategy for informing potential victims, a copy of the indictment and a short briefing document.448 There were three problems with the process that was adopted on that day. The first and fundamental problem was that none of the officers, including DCS Williams, who had overall responsibility for briefing Mr Yates, were given any real opportunity to refresh their memory of the nuances of what had been a comparatively complex investigation, involving seizure of a vast quantity of material, difficult issues of law and the overwhelmingly important competing demands consequent upon the threat of terrorism. Mr Yates did not wait for the documents (including the decision log) to be retrieved from storage, leaving DCS Williams with access only to the memories of the officers available to discuss the investigation and to very limited documentation.449 Mr Yates has submitted that before he reached any conclusions he ensured that DCS Williams and senior members of his team had satisfied him that they had a full recollection of all salient points of the investigation. It was, however, quite unrealistic of Mr Yates to expect that the officers could do so in such a short time, even if they believed they could. This briefing was about the material discovered, the actions taken and the decisions made just short of three years beforehand, when there can be no doubt that the officers had since been involved in extremely complex counter terrorism investigations. They could not conceivably have remembered all the detail, let alone appreciate that what they had intended to happen by way of exit strategy had not been followed through. The minutes of the Gold Group meeting450 indicate that Mr Yates approached the task by asking some perceptive questions. These included the question: Why was there not a more wide ranging investigation? According to the minutes, he was told that the reason was that: There was no evidence to expand the investigation wider, which, if it had done, then this would have been an ineffective use of public resources. Further, in answer to the question: What other journalists were involved? Mr Yates was told: There was no evidence at that time to implicate involvement in [sic] any other journalists. Under the heading Reopening of investigation it was written: No evidence to justify. In all likelihood it was DCS Williams who gave these answers and communicated this message to Mr Yates because it appears
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pp56-57, lines 21-10, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf. It does not appear that DCS Surtees was involved until the following day 448 p3, lines 11-19, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 449 p5, lines 4-9, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 450 John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-3.pdf
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that he was the only officer present at the Gold Group meeting who would have had any knowledge of the detail of the investigation. 8.35 Leaving aside the question of whether the evidence uncovered by Operation Caryatid ought properly to be labelled as direct, circumstantial or inferential evidence, it is important to note from the outset that the message communicated to Mr Yates was not that there was some evidence that the criminality extended beyond Mr Goodman, but that there had been insufficient evidence to prosecute other journalists (which, as I have found, was the understanding, in 2006, of the officers involved in Operation Caryatid, including DCS Williams). Instead, it appears that in the mind of DCS Williams on 9 July 2009, that understanding had become a belief that, although there had been plenty of speculation that other journalists had been involved, the sum total of the evidence uncovered by Operation Caryatid was not capable of being taken forward or developed as part of a wider investigation. It is quite likely that this initial briefing provided the prism through which Mr Yates viewed the information he was given in subsequent oral and written briefings. I consider that the answers given by DCS Williams did not accurately reflect not only the value of the material that the police had seized but also the way in which the investigation had been brought to an end. Given the haste with which this fact-finding exercise was being undertaken, however, it is difficult to be over-critical of DCS Williams at this stage. When he came to make a statement in September 2011, DCS Williams had obviously had the chance of reviewing the contemporaneous material in detail and so was able to deal with the matter rather more reflectively and in greater detail than would ever have been possible in July 2009. The contrast is obvious. The more recent explanation provides the context in these terms:451 In the months following the arrest and right up to the prosecution DAC Clarkes decision to continue within the parameters as originally set and thereby not go any further in terms of the material seized from Mulcaire and Goodman, remained. My understanding of this enduring rationale was that this would have involved a commitment of huge resources that could not be justified given the climate concerning, in particular, terrorism. On balance it was felt that the safety of the public was more important that protecting invasions of privacy; and that it was not the job of police to regulate the media, rather that it should regulate itself through the PCC. 8.38 The differences are important. To say, for example, that there was no evidence to implicate other journalists (which, in any event, although the expressed view of DCS Williams did not, in my judgment, start to be an accurate analysis of the material available to the police), is not the same as saying that the decision not to go further was based on the resource commitment involved. It is worth adding, in parenthesis, that even if Mr Yates had waited for the records to be unearthed, he would not have found a record of the briefing given to Mr Clarke at the end of September 2006 or of the rationale behind the ultimate decision not to expand the investigation beyond Mr Goodman and Mr Mulcaire because there was no such record. A careful study of the decision log, the statements and interviews (which contained, for example, the references to other possible victims) would, however, have revealed a rather different picture to that which he had been given during the briefing. In relation to the absence of the record, the MPS submits that although the specific reasons were not set out in any detail, given the successful and widely reported charging and subsequent public prosecutions of Mr Goodman and Mr Mulcaire together with the
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para 44, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip-Williams.pdf
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formulation of a victim strategy: it should have been evident to anyone subsequently reviewing the decision that it was not made on the basis that there were no further leads to investigate. It is sufficient for me to say that I do not understand how that follows: the prosecution and the strategy say nothing about whether there existed viable investigative leads when the decision was made to close down the investigation. 8.40 The MPS also submits that the lack of recorded reasons did not have any material impact on the 2009 decision, as the same officers who conducted the original investigation also provided detailed briefings and advised Mr Yates. Although true, the fact is that neither DCS Williams nor any other officer who spoke to Mr Yates on 9 July did, apparently, recall accurately why the decision was made by Mr Clarke and so did not provide a full picture for Mr Yates.452 If what records there were had been available, rather more detail might have come back to mind. I understand the reasons but it reveals an important flaw in what was happening on that day. DCS Williams has submitted that although the final decision not to expand the investigation was not recorded, the decision log had considered the question of expanding the investigation and the issue of resources and that the final decision was part of that ongoing decision making process. He goes on to argue that Mr Yates knew why the operation had been closed down, but I have seen no evidence that Mr Yates was ever told, in terms which would have been sufficiently clear to correct the initial understanding he was given (that there was no evidence to expand the investigation wider), that Mr Clarke made the decision essentially on the basis of the necessary prioritisation of counter terrorism investigations so that his decision said little if anything about the quality of the evidence or viability of the leads. The fact remains that the rationale was not explained adequately to Mr Yates and a clearly recorded decision setting out the rationale would, in all likelihood, have avoided the misunderstanding that clearly arose. Suffice to say, I have little doubt that the answers given on 9 July to the questions posed by Mr Yates caused him to misunderstand the scope of what had been revealed during Operation Caryatid and to go on to approach the exercise from entirely the wrong angle, that is to say focusing exclusively on the question of whether the Guardian article had revealed any evidence that the police had not previously seen. The second problem was that Mr Yates did not approach the exercise with any intellectual rigour or scrutinise the information he was given. As explained above, crucially, Mr Yates pursued only the question whether anything was new: he did not pursue the questions which the article raised. It is clear from the minutes of the Gold Group that Mr Yates was informed that a large amount of material had been seized. Without undertaking a full scale review, in the light of the challenge to the MPS itself, it would have been sensible and responsive to the allegations in the article to ask a number of questions. Had the material seized from Mr Mulcaire all been analysed and, if not, why not? What was the basis of the decision to limit the indictment as drafted and (in relation to the counts on the indictment which it was not suggested involved Mr Goodman) to whom was Mr Mulcaire supplying that information and why? Who had caused Mr Mulcaire to obtain so many mobile phone numbers, PIN details and other material which, on the face of it, could give rise to the inference that he was seeking to get information by intercepting voicemail messages? Was it right that not all possible charges were pursued against News Group personnel? Was there any material to suggest that other
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In a different sense, it may have made less significance because DCS Williams has maintained at all stages what I have concluded is his mischaracterisation of the material gathered during Operation Caryatid as amounting to no evidence that journalists other than Mr Goodman were involved in a conspiracy to intercept communications. It would still have been wrong not only because of the identified contraventions of the Computer Misuse Act 1990 but also the inchoate offences of conspiracy and the fact that the indictment had not proceeded on the narrow view of the law
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reporters were involved? It does not appear that any detailed consideration was (or, indeed, could have been) given to the substance of what was being alleged. 8.43 Mr Yates wrote himself a file note on 9 July (or within 24 hours)453, in which he recorded the Principles to be adopted regarding Operation Caryatid and request by Commissioner to establish the facts around the case. He included in his list of principles the Scale, scope and outcome, in terms of the original case, Any complexities and challenges around the evidence then and any advice they have provided and The level of disclosure and who had reviewed what material.454 Had Mr Yates explored properly these headlines, which he set for himself, he would (or should) have ascertained the true factual position, namely, that the police held vast quantities of documents that had not been analysed and very few of which had been reviewed or considered by the CPS or Counsel (save only for the very limited purpose of disclosing unused material). He might also have learnt that, although the terrorism threat fully justified limiting what was to be done in Caryatid, there was an entirely reasonable view that there had been a number of viable leads that could have been pursued had the investigation continued. Instead, Mr Yates appears to have accepted at face value the information provided by DCS Williams, relying only on his memory. Mr Yates was asked to what extent he tested the proposition that there was no evidence to implicate other journalists. Mr Yates replied that he would have asked whether counsel and the CPS saw the evidence and whether the unused material was reviewed properly.455 Given that the CPS was only asked to consider the investigation actually undertaken and that the purpose of reviewing unused material is limited, the nature of the allegations made by the Guardian meant that this approach was plainly insufficient. In explaining his limited approach, Mr Yates relied on the fact that he was not briefed that there was circumstantial or indeed other evidence which implicated journalists other than Mr Goodman.456 DCS Williams has accepted that the initial briefings he gave Mr Yates were not as thorough as he would have liked and were conducted from memory, without the benefit of documents, all as part of a hurried response to the Guardian article. It is undeniable that if DCS Williams along with his team of officers had been able to recreate for Mr Yates the much more nuanced state of the investigation and the context within which operational decisions had been taken, Mr Yates would have been in a better position to consider the matter and is unlikely to have publicly expressed himself on 9 July as he did. I am simply not in a position to say whether he would have reached a different conclusion. I also accept the general principle that it is essential to the efficient functioning of the MPS that a senior officer is able to rely on the total accuracy of the information given to him by officers under his command, and I do not doubt that DCS Williams intended to brief Mr Yates entirely accurately. However, these matters are by no means a complete answer for Mr Yates because he had to ensure that he had elicited all material facts from DCS Williams before relying on the latters assessment of those facts. Given the very specific allegations made by the Guardian, Mr Yates should have required DCS Williams to explain precisely what had been discovered that could potentially implicate journalists other than Mr Goodman, whatever the quality of the information (giving sufficient time to review the material gathered, perhaps
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p53, lines 19-23, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 454 John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-2.pdf 455 p72, lines 9-14, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 456 pp80-81, lines 21-6, ibid
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even to speak to the case officers, such as DI Maberly, who had been hands-on during the investigation). Mr Yates, as the senior officer in charge of deciding what the response of the organisation to the Guardian article should be, ought then to have considered for himself whether there were evidential leads and whether there ought to be a scoping exercise with a view to deciding whether the full investigation should be re-opened. 8.47 Further, Mr Yates not only failed to require a more measured review of the position but he positively refused to allow it to happen before announcing his conclusions. The action points of the Gold Group meeting on 9 July simply did not include a review of the papers in storage or the decision logs. This need not have taken a great deal of time but Mr Yates decided upon a very speedy response rather than mature reflection. By not establishing accurately all the relevant facts, Mr Yates proceeded on the false assumption that there was no material in police possession that could justify reconsideration of Operation Caryatid; thereafter, the only question of any interest to Mr Yates was whether the Guardian article revealed any new evidence. This, then, is the third problem with the exercise that was undertaken on 9 July. The minutes of the Gold Group meeting indicate that it was clearly decided at an early stage that there was no evidence to justify reopening the investigation: almost immediately, Mr Yates (and DCS Williams) had decided to dismiss the Guardian article in its entirety. The final action point was for the Directorate of Public Affairs to prepare press lines for Mr Yates to deliver to camera outside New Scotland Yard that afternoon. Although DCS Williams went on to retrieve the papers and write a paper with DCS Surtees, the course had been set and a public denunciation of the Guardian delivered. Whatever emerged when the papers were retrieved and the decision logs reviewed, it is difficult to see how the MPS would have been able to move away from the decision so quickly and so publicly announced. This is borne out by the minutes of the Gold Group meeting which suggest that the police were more astute to manage aspects of public relations than to review the investigation. As the MPS has accepted, the exercise was framed too narrowly and the decision had all the hallmarks of haste and none of reflective calm. Lord Blair expressed the same view in evidence:457 From what I can see, that decision was just too quick. It was just why could you not have gone back with all those allegations and looked further into what was what did the material actually say? 8.50 The result was that, on the afternoon of the day of the Guardian article, Mr Yates issued a press release458 publishing his conclusion that no additional evidence had come to light since the prosecution of Mr Goodman and Mr Mulcaire, and therefore that no further investigation was required. In the press release Mr Yates stated that: This case has been subject of the most careful investigation by very experienced detectives. It has also been scrutinised in detail by both the CPS and leading Counsel. They have carefully examined all the evidence and prepared the indictments that they considered appropriate. 8.51 This statement was inaccurate. It is known now that neither the CPS, nor Counsel, nor indeed the investigating officers, had examined all the material for evidence of the involvement of other journalists. It suggested that the material seized from Mr Mulcaire had been thoroughly
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p69, lines 14-20, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-MorningHearing-7-March-2012.pdf 458 John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-11.pdf
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examined and every evidential lead pursued as far as it could be with the results put before the CPS and counsel for overarching advice on the widest range of outcomes. Put simply, that is not what happened: the material had not been analysed for evidence incriminating others. 8.52 Mr Yates has claimed that DCS Williams assured him that counsel had spent two days reviewing the material and that no additional suspects had been identified. Given the submissions made by DCS Williams on this point, it is quite possible that he provided that assurance but any inquiry would also have revealed that counsel had not been tasked with reviewing the material in order to advise on the extent to which there was evidence of the involvement of others. Not only had counsel not analysed the material for that purpose: neither had the police. Indeed, as explained below, if such an exercise had taken place, it could not have been concluded within two days. Both DCS Williams and DCS Surtees have argued that it was their understanding that counsel did examine all the material seized during the investigation and DCS Williams has submitted that it was the responsibility of the CPS both to advise on charges and to assess whether further evidence was required for the prosecution. With respect, the role of counsel is not to act as investigators and, unless specifically so instructed (which is not suggested) it is wholly unrealistic to suggest that it included examining all the material for evidence that might justify further police investigation against anyone not, at that stage, even the subject of any focused investigation. When explaining why no further investigative steps were taken in 2006, the officers gave clear evidence that pursuing the investigation would have required a comprehensive analysis of the documents seized and that such an analysis would have been an enormous undertaking and not a straightforward exercise. Mr Clarke and DCS Williams have explained that given the nature of the material (which included hundreds of unstructured handwritten pages),459 it was not a question of reading what had been seized from start to finish. Analysing the material would have required a time-consuming and systematic analysis of the papers, with the need to create schedules and spreadsheets of the material in order to cross-reference all the information. Mr Yates would have known that any review of unused material for the purposes of identifying exculpatory material would not even have approached such an involved exercise. Mr Yates also addressed in the press statement the question of the number of victims of unlawful voicemail interception: Their potential targets may have run into hundreds of people, but our inquiries showed that they only used the tactic against a far smaller number of individuals. It is important to recognise that our enquiries showed that in the vast majority of cases there was insufficient evidence to show that tapping had actually been achieved. 8.56 Given the discoveries that Operation Caryatid had made, these statements were also wholly inaccurate. The fact that a substantive offence could not be made out for purely technical reasons would not give the potential targets comfort in terms of measuring the level of intrusion to their privacy but it should also be reiterated that the commission of a criminal offence under the CMA did not depend for its proof on the precise timing of the interception.
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Mr Yates explained that these statements reflected his genuine understanding and that they were based on the information he had been given:460 That is definitely what I thought at the time, and it was in good faith, based on the briefings Id received, but I absolutely accept now that I got that wrong and I made a fundamental misjudgment there. 8.57 The minutes of the Gold Group meeting461 demonstrate that Mr Yates was briefed as follows: 3000 names During searches of defendants premises, large amount of material seized, names, numbers etc. One defendant was a private investigator and as they had accessed mobile phone company systems, they had interest and potentially access to numerous people/phones. There was no evidence to prove criminally any other persons phone had been intercepted. There was strong evidence that they had intercepted 3 Royal family aides phones and a further 5 other high profile people, all of which were subject to the charges and proceedings in court. Wider people were not informed as there was no evidence to suggest there was any criminal activity on their phones. 8.58 DCS Williams was asked during his evidence whether it was correct that the tactic had only been used against a far smaller number of individuals. He replied: It was from my perspective of what would constitute an interception. I totally understand that there is a different view on that now.462 Even if the narrow interpretation of RIPA were correct, however, and therefore that the police had only positively proved voicemail interception in a small number of cases, the statement was nonetheless misleading because it suggested that the police had been able to rule out voicemail interception beyond that small number of victims. It also appears therefore that DCS Williams erroneously put forward the need to apply the narrow interpretation of s1 of RIPA as one of the reasons why the investigation was not widened in 2006. Both DCS Williams and DCS Surtees have submitted that counts 16 to 20 were contained on the indictment in order to test the law.463 DCS Williams said this was agreed by the CPS and Counsel to see if the convictions could be secured despite having no proof that an interception had taken place. There is no doubt that DCS Williams misunderstood or failed accurately to remember the more nuanced advice given by Counsel in August 2006 at the conference he attended and that DCS Surtees acquired the same misunderstanding. It is surprising that DCS Williams appears to have briefed Mr Yates that others were not informed on the basis there was no evidence to suggest that there was any criminality in relation to their mobile phones, because the victim notification strategy, which DCS Williams had to hand that day, had been designed to ensure that large numbers of potential victims were informed because the only criterion was that the suspect numbers had dialled their unique voicemail access number. It is noteworthy that, on 22 February 2012, when he signed his witness statement, Mr Yates apparently still believed that there was no unlawful interception unless it could be proved
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p53, lines 6-10, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 461 John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-3.pdf 462 p13, lines 4-11, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 463 That would suggest that Counsel were not relying on the narrower view of the law: as discussed above, a criminal charge would not be pursued if counsel for the Crown did not consider it sustainable as a matter of law
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that the interception took place before the relevant voicemail message had been heard by the intended recipient.464 8.62 The important questions that arise from this analysis of events are: (a) (b) (c) (d) why Mr Yates carried out this exercise in such a hurried way, without any proper consideration of the serious allegations made by the Guardian; why DCS Williams was prepared to brief Mr Yates in unqualified terms without refreshing his memory fully from the decision logs and case papers and did so inaccurately; why, within a matter of hours of the Guardian article, both men decided to dismiss the article in its entirety; and to what extent, if at all, can the matters of concern in (a) to (c) above be explained by the relationships Mr Yates enjoyed with individuals at NI or the relationship more generally between the MPS and NI.
8.63
In my judgment, the approach taken by Mr Yates can be explained entirely by the inappropriately dismissive and closed-minded attitude he adopted from the outset. This attitude stemmed from two main factors. The first was that he appeared to give less credence to the allegations than they deserved simply because they were made in a newspaper article. The second is the defensive mind-set alluded to above. Mr Yates provided an important insight into the level of respect he had for the allegations during his evidence when he said:465 This was a simple exercise and one of a number of exercises that the Commissioner or Deputy would ask ACs like me to do almost on a weekly basis. It was an article in a newspaper, and it was no more, no less than that. So the fact that I sort of cleared my diary and did something relatively formal around this, recognising some of the challenges, is actually qualitatively different than many times youd do it. So its what it was. It was an article in a newspaper. Events make that look very different, I know, but give me the credit, this was an article in a newspaper, thats what it was about. It wasnt a formal review.
8.64
Further, when asked whether the issues raised by the Guardian were wide-ranging, serious and important Mr Yates said:466 One looks at the invasion of privacy uncovered by Motorman and Glade and the sentences they got there, which was conditional discharges, so I would not put it at the serious end. What we know now puts it at the very serious end, but in July 2009 it was phone hacking. I was three months into a new job as head of anti-terrorism, we were dealing with the fall-out of a very difficult operation up in Manchester, which was still going, numerous other high-profile operations involving the security of the state. This did not present itself as a hugely serious thing in 2009.
8.65
Whilst Mr Yates cannot be criticised for judging the relative seriousness of voicemail interception as markedly less grave than terrorism, this expression of his thinking reinforces the view that he did not apply himself fully to the task. Mr Yates has since added that it is relevant context that he was pressed with challenging work in relation to the ongoing fight against terrorism and the numerous high priority operations in progress. I do not challenge
pp31-32, paras 105 and 106, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statementof-John-Yates.pdf 465 pp57-58, lines 16-2, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 466 pp63-64, lines 16-1, ibid
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for one moment that he would have faced such pressures, but it would have been perfectly reasonable for him to discuss with Sir Paul or his Deputy, Tim Godwin, the delegation of the task of addressing the Guardians allegations to a Deputy Assistant Commissioner or a Commander, or to raise with them any general resourcing concerns that might have precluded a proper assessment of the allegations: his new job as head of anti-terrorism and the role of his department were, indeed, of critical importance but there was no point in accepting responsibility for doing the exercise if he was not prepared to make sure that it was done properly. 8.66 Regarding the defensive facet of the attitude assumed by Mr Yates, Sir Paul Stephenson offered the following view why the decision not to reopen the investigation was made and maintained:467 I think that what happened in 2009 is that within the Met, we developed a fixed mindset and a defensive mindset around this whole issue I think that mindset was based on a number of issues, none of which are an excuse as to why we didnt get this thing right I think the start of that mindset was very much about: its inconceivable for people in 2009 to believe that an inquiry led by Mr Clarke would limit itself for any improper purposes I think after that, in the absence of [establishing] what the Met had in its possession I think thats been rehearsed in this Inquiry and in various places. Thats regrettable. That absence caused the Met to be more and more convinced that the original investigation, therefore was a success in totality, and of course that wasnt the case what we didnt do is go back and actually challenge the reasons for those decisions in 2006 We didnt go back and challenge the reasons why it was limited because we didnt know that it was limited, and had that taken place, we might have been in a better place I then go on to think that we got ourselves almost hooked on a strategy on a defensive strategy that we would not expend significant resources without new or additional evidence the defensive mindset we established was very much based on the flawed assumption that the original one was successful investigation in totality and the absence of challenge, I think, led us into some difficulty, if that makes sense. 8.67 The MPS accepts the criticism that it adopted a defensive state of mind. It is worthwhile to add that Lord Blair commented: But I am clear, and Im quite prepared to say it, that was a decision that appears too hasty, and I thought some of the way in which Sir Paul Stephenson suggested the closed mindset of because it had been Peter Clarke who had made the decision and he was so respected, it was a very interesting piece of what you can describe sometimes as group think. 8.68 8.69 I find that this defensive attitude was an important factor in explaining the approach taken by Mr Yates. The limited respect Mr Yates had for the allegations by virtue of the fact that they appeared in a newspaper combined with his belief (albeit justified) in the absolute integrity of the 2006 investigation, no doubt largely because Mr Clarke had been at its helm, translated into a real reluctance to challenge or revisit past decisions. This attitude prevented him from standing back from the article and assessing its allegations dispassionately, despite the fact that this is what he had been given the responsibility for doing. In my judgment, it
pp60-63, lines 20-22, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-5-March-2012.pdf
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explains his willingness to accept at face value the assurances given by DCS Williams that the investigation was exhaustive. It led him, almost inevitably, to the peremptory conclusion that the investigation would not be reopened. It resulted in a swift and offensive response, as described, accurately in my judgment, by Mr Rhodri Davies QC in his closing address. I must make it clear, however, that I do not find that there is any evidence from which to infer that any relationships with NI in general, or Neil Wallis in particular, contributed to this attitude or approach. 8.70 It is undeniable that Mr Yates demonstrated poor judgment in failing to have sufficient respect for the allegations made in the Guardian article. The article was not tittle-tattle. On its face it was a well-researched piece of journalism. It was significant that three years had passed but the matter remained of real interest to a credible journalist. I also find it significant that Sir Paul Stephenson (who had only heard about the article on the radio) thought it raised sufficiently important issues that he wanted an officer as senior as Mr Yates to look at it. Furthermore, the then Home Secretary, Rt Hon Alan Johnson MP, said in evidence that at the ACPO conference on 9 July the first conversation he had with Sir Paul Stephenson, in a quiet corner, was about the article. It was unacceptable to treat it in the way that Mr Yates did; it was not the same as any article in a newspaper. It both demanded and merited a more considered and careful response as the reputational damage to the MPS has since amply demonstrated. The defensive mind-set outlined by Sir Paul Stephenson also largely explains the approach taken by DCS Williams. DCS Williams accepted in evidence that his response to the article was influenced or indeed governed by his perception that the Guardian was alleging that the police had tried to hide something:468 maybe its the wrong perception, my feeling was that they were very much saying we were trying to hide something, so my thats my impression from the coverage, and Im trying to say there was absolutely no intention to hide anything. And this is what Im trying to articulate to Mr Yates. 8.72 DCS Williams has since accepted specifically that he was defensive but denies that this prevented him from carrying out an open minded and dispassionate re-evaluation of the decisions taken. I regret that I do not agree. Being open-minded would have led to his appreciation that there were, indeed, other potential victims and other evidence to examine (as he has accepted that he knew) with the result that there was sufficient in the article to justify rather more detailed consideration than the few hours it was given. If he had remembered the pressure on resources at the time, being open-minded would have led him back to the papers not to re-open the investigation but to put himself in the best position to analyse the criticisms made of the police. In short, being open-minded meant that the allegations in the Guardian could not be dismissed within hours and DCS Williams should have appreciated that Mr Yates (who was entitled to rely on him) was doing just that (albeit without probing sufficiently or making sure that he understood all the ramifications of what had happened three years earlier). It is right that I deal with the further allegation that DCS Williams sought to persuade Mr Yates not to reopen the investigation. This was refuted by DCS Williams, who said: I just gave an explanation of exactly what wed done and the position we had reached.469 I asked DCS Williams to explain why he presented to Mr Yates that there was nothing else to do when in
E
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8.73
p12, lines 8-16, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 469 p4, lines 1-2, ibid
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fact there was a great deal that could have been done, albeit that there were understandable reasons why those things were not done. DCS Williams said:470 No, I see what youre saying ... Im thinking of it in my head as the evidence I didnt have in my mind of what I would have needed to take that investigation forward, and if Ive created the wrong impression, Ive created the wrong impression. It wasnt done intentionally. Im trying to provide a briefing to my senior officer as genuinely as possible as to what we did and what we didnt do then. Im saying I havent made these decisions I accept Im responsible, I was the SIO, no question about that, but I havent done it in isolation, I have briefed and talked to a whole range of people and I always do that for the purpose of taking advice and talking things through. Ultimately my decision as SIO where we go with that in the parameters Ive been given with the investigation. I understand what youre saying, but I was not doing anything here to mislead or create a false impression. 8.74 The briefing DCS Williams gave was clearly inaccurate and, as set out above, by 2009, he appeared to have formed the belief that there was no evidence in police possession that then could or should be taken forward as part of a further investigation. It is unnecessary for me to attempt to make a finding on how he may have come to hold this belief, despite his contrary understanding in 2006. The effect of the passage of time, with numerous intervening investigations, combined with the defensiveness alluded to are a potential explanation, but for the purposes of the Terms of Reference, it is sufficient if I make it clear that I accept that DCS Williams was acting in good faith and I do not believe that he intended to mislead Mr Yates or that his approach was calculated to prevent the investigation being re-opened, whether to protect NI or any other improper purpose. Related to the question about the extent to which the Guardian article merited detailed consideration, Mr Yates was asked to explain why he did not wait for DCS Williams to provide him with briefing notes before issuing his press statement. He said:471 wed established the facts and the facts were, then, that that Guardian article had some new information for the general public, but it wasnt new to the investigators or to the police, and there was nothing there was no new evidence presented by that article to warrant reopening the investigation at that stage. So I came out and said it. I could have waited a week, two weeks and choreographed it and spun it, but I didnt. I said it as it was. 8.76 Mr Yates was right to conclude that the Guardian had not revealed anything that would be new to the police, but that was precisely the point. The Guardian was alleging that the evidence should have been acted upon. What Mr Yates failed to recognise was that whether the Guardian had referred to new material was not the same question as whether re-opening the investigation might be warranted. It does not appear to have crossed his mind to ask DCS Williams for full details of what information there was that might possibly implicate other journalists. Mr Yates had also said:472 If you look at the list of people who were present at that meeting, all very senior, all very experienced. If there had been a scintilla of evidence that said we should be doing something differently, I can absolutely assure you they would have challenged
pp11-12, lines 11-4, ibid pp75-76, lines 19-10, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 472 pp64-65, lines 21-6, ibid
471 470
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me and Id have challenged myself and we would have done something different. The fact of the matter was, as I was briefed, there was nothing else in that article that led us to suggest that anything else needed to be done immediately regarding the investigation, or anything about the investigation. 8.77 Mr Yates ought to have known that it was not safe categorically to state that there was nothing to warrant any reconsideration of the investigation, or to rely on the lack of contradiction by anyone present at the meeting, in circumstances where no one involved in the investigation had had proper opportunity to refresh their memories from the decision logs and case papers. Further, the very fact of the pressure caused by counter terrorism operations could have alerted those looking back from 2009 to perceive the risk that a decision had been taken at least in part on the basis that, whatever else the material might reveal if further time was spent on it, there were far more pressing operational demands that took priority. It is remarkable that, even with hindsight, Mr Yates was not prepared to accept that, on 9 July 2009, it would have been more accurate to have said that there may well have been evidence which implicated others, but that the decision was taken in September 2006 to limit the investigation because such evidence was insufficiently clear and operational demands required use of resources to deal with other, far more pressing, counter terrorism work. He said:473 I dont accept thats the case either. There may Keith Surtees may have had suspicions and those suspicions are clearly well-founded now, but they werent there was no evidence then. If there had been any evidence for us to pursue Youre judging me on 2012 by what was taking place in July 2009 8.79 Mr Yates was asked, directly, whether it was his opinion that there was no evidence at all to suggest that others might be involved, he said:474 Well, there was the you know, the long spoken about for Neville email, which again was covered in terms of what its value to an investigation was on several occasions, not least by the DPP and counsel in terms of what it would value its evidential value. There was nothing else that we knew differently then. 8.80 He also said:475 There was certainly a desire to go to the phone hubs and all that. The evidential challenges were paramount, and as far as I was aware from them were completely that they could not be overcome. 8.81 Mr Yates said that he did recall the phrase a sort of Mexican stand-off at Wapping HQ but that: I think the newspaper lawyers would want to test that warrant and do everything they could do to safeguard journalistic material. I wouldnt necessarily think that would be an unusual turn of events at a newspaper.476 It was put to him that this was part of the inferential picture of whether there was evidence generally speaking against others at the NoTW. He was asked if he saw the relevance of the obstruction from that point of view. His answer was: I do and I dont.477
8.78
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pp79-80, lines 25-7, ibid p26, lines 13-18, ibid 475 p81, lines 19-22, ibid 476 p45, lines 8-15, ibid 477 p46, line 15, ibid
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8.82
Mr Yates appears to have adopted without challenge, and maintained, the same mistaken appraisal of the state of the evidence as DCS Williams, namely that Operation Caryatid had disclosed no evidence that journalists other than Mr Goodman had been involved in unlawful voicemail interception and had produced no viable leads. Mr Yates contended that lawyers and police officers have different opinions as to what might constitute evidence for these purposes. I did not find this distinction to be convincing: in my experience, police officers have a well developed understanding of what constitutes evidence and the more likely challenge arises when police officers seek to push the boundary of what is provable as evidence beyond that which a criminal lawyer will accept. Apparently Mr Yates continued to fail to recognise that there was material in police possession that was capable of being taken forward. He maintained that it was only with the benefit of hindsight that his decision not to re-open the investigation was wrong:478 I have also stated publicly that the decision not to reopen the investigation was a poor one in the light of what we now know I had no way of knowing at that time the extent of the NoTWs deliberate cover-up of the wider involvement of others in this activity.
8.83
8.84
Although it is right that Mr Yates cannot have known the extent of the wrongdoing at the NoTW, or the extent to which it had been concealed, he undoubtedly did not require the benefit of hindsight to respond adequately to the Guardian article by identifying the reason why Operation Caryatid had not exhaustively pursued all possible leads, by discerning that there were parts of the Guardian article that generated concern and by taking rather longer to consider the position than he was prepared to devote to it. The error of judgment in deciding on immediate and prompt dismissal of the allegations by press announcement that afternoon should have been apparent at the time. It has been argued that I should not reach adverse conclusions without having heard from Carmen Dowd. For instance, Mr Yates has submitted that it was the advice she gave in 2006 that influenced his approach to what was achievable given the limited resources available. The problem facing the police team in 2009, however, was not the advice in 2006. It was that it was known that there was an enormous body of evidence which had not been examined, yet it was decided that there would be no further consideration of the allegations unless there was new evidence; it would only have been at that stage, when deciding what steps to take in the light of the new evidence that Mr Yates would have considered resourcing priorities. Finally, I must deal with two other aspects of the press release issued by Mr Yates on 9 July 2009. The first concerns the Deputy Prime Minister and asserts: There has been a lot of media comment today about the then Deputy Prime Minister John Prescott. This investigation has not uncovered any evidence to suggest that John Prescotts phone had been tapped.
8.85
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8.87
This statement was made not only in response to media comment, but also in response to a letter received that day from Lord Prescott (then the Rt Hon John Prescott MP). Lord Prescott had written to Sir Paul Stephenson asking whether the Guardian had been correct to allege that the MPS held the names of all those whose phones were targeted, including his, and if so, why the police did not inform those people or take any action.479 Mr Yates had also telephoned
478 479
p38, para 123, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Yates.pdf John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-9.pdf
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Lord Prescott, before he spoke to the press, to reassure him that there was no evidence that his mobile phone had been the subject of voicemail interception.480 It is extraordinary that Mr Yates was prepared to give this assurance both to Lord Prescott personally and in his press release because it is clear from the minutes of the Gold Group meeting that DCS Williams was not able to state definitively that Lord Prescott was not a potential victim. An action point recorded in the minutes was that DCS Williams was to confirm the position; it noted: If he had been subject to interception and evidence supported this then he would have been informed ACTION PW to confirm. 8.88 The minutes suggest therefore that the assurance given by Mr Yates to Lord Prescott was based on nothing but an assumption on the part of DCS Williams, which he had not had time to confirm, that Lord Prescott could not have been a potential victim because if he had been, he would have been informed pursuant to the victim notification strategy. This is despite the fact that DCS Williams did not oversee the strategy to make sure that it had been executed as intended and, given that it was not in fact overseen by anyone else, DCS Williams could have received no confirmation that it had been put fully into effect. DCS Williams has raised in submissions that in a written briefing to Mr Yates, dated 9 July 2009, a DCS Timmons stated the following: Deputy PM John Prescott PW and KS without reference to the exact documentation believe that Mr Prescott was not directly targeted although it is believed that members of his staff may have been. There has been no direct contact with Mr Prescott and he is not believed on the information available at this time that he was a victim of interception. 8.90 If this briefing note accurately reflects the position, then it gives a different or additional explanation for why he reassured Mr Yates that Lord Prescott was not a potential victim of voicemail interception. DCS Williams has submitted that at that time, the view of what constituted interception was narrower. DCS Surtees has also submitted that Mr Yates accepted the narrow interpretation of victim and that up until 2010 everyone was working on that interpretation. This all indicates that DCS Williams and DCS Surtees, were briefing Mr Yates on the basis that an individual was only a victim if the police could prove that there had been an interception according to the narrow interpretation of s1 RIPA. It also indicates that they did not have in mind that whether someone was a potential victim was as important as whether someone could be proved to be a victim, given that the investigation had not been exhaustive, and ignored the prospect that the individual was a victim of an offence under the CMA or the target of a conspiracy. The following day, after DCS Williams had apparently checked the position, he told Mr Yates that Lord Prescott had not been the subject of voicemail interception.481 Either DCS Williams gave Mr Yates this reassurance on the artificially narrow basis that a person could only be a victim (or potential victim) if voicemail messages left on his or her own phone had been intercepted, rather than voicemail messages received by people close to him/her, or, if this was not his approach, he gave the reassurance without checking the case papers because if he had carried out a reasonably careful review of the case papers he would have ascertained: (a) either from the papers seized from Mr Mulcaire or from the record of interview of Mr Mulcaire on 9 August 2006 at 16:35 hrs, that Mr Mulcaire had recorded in his papers the name, John Prescott, with advisor and then Joan Hammel underneath and her
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telephone numbers and pass codes and an address in NW1; or (b) that on 30 August 2006 DI Maberly had emailed Vodafone asking if they could tell him whether anyone had listened to the voicemail of a number of people, which included Tracey Temple (Prescott); or that on 2 October 2006 DI Maberly had emailed O2 identifying two persons of concern and asking O2 if they featured in the analysis O2 was preparing: the first name was Joan Hammell (linked to prezza).
(c)
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Any of these would have alerted DCS Williams to the fact that Lord Prescott had, indeed, been suspected of having been either a potential victim or a possible target. Once it is appreciated that his staff have been targeted, it is not difficult to conclude that they were being used as a means of learning about his private communications. Precisely what happened and the exact thinking of Mr Yates and DCS Williams on this issue could not be explored without recalling the witnesses and delaying this Report. That would not have been a proportionate step to take when the failure to notify Lord Prescott was so abundantly clear and the cause of that failure could be narrowed to some form of mistake or misjudgement rather than any improper influence connected to NI. The second aspect of the press statement which requires further consideration is that Mr Yates stated that the MPS was taking all proper steps to ensure that, where there was evidence that people had been the subject of voicemail interception or there was any suspicion that there may have been, that they had been informed. The actions taken to comply with this undertaking and the extent to which they were successful are below.
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The initial reaction of the CPS

8.95 Keir Starmer QC, who had succeeded Lord Macdonald as the DPP, was concerned by the assertions made in the Guardian, in particular the claim that deliberate decisions had been taken not to prosecute NoTW executives (which could have involved his staff). He therefore convened a meeting at which he asked senior lawyers to conduct an examination of the material supplied to the CPS by the police so that he could be satisfied that appropriate action had been taken at the time. He also asked for a chronology, setting out the actions taken and the sources of information.482 Simultaneously, the office of the DPP came under pressure from the Home Secretary and the press to explain the nature of its involvement in 2006:483 all this demonstrates the extent to which the allegation in the Guardian was not just another article. In contrast to Mr Yates, Mr Starmer explained that he took the Guardian article seriously both because of the important issue it raised and because of the number and seriousness of the requests coming in to him that day. They persuaded him that this was something he really needed to understand and that he needed to reconstruct the picture as quickly as possible.484 Mr Starmer became aware of the press statement that Mr Yates gave later that afternoon. This was some of the first information he received and: given his position at the time, I have
8.96
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p8, para 26, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-KeirStarmer-QC.pdf 483 p8, para 27, ibid 484 p100, lines 12-21, Keir Starmer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-4-April-2012.pdf
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to say I took it pretty much at face value in building up the picture.485 At that stage, however, he did not know how little time Mr Yates had devoted to his establishment of the facts exercise. Later that same evening (9 July 2009) Mr Starmer issued his own press statement in the following terms:486 I have no reason to consider that there was anything inappropriate in the prosecutions that were undertaken in this case. In light of the fresh allegations that have been made, some preliminary enquiries have been undertaken and I have now ordered an urgent examination of the material that was supplied to the CPS by the police three years ago. I am taking this action to satisfy myself and assure the public that the appropriate actions were taken in relation to that material. Given the nature of the offences, the amount of material is of course extensive and complex, but it has all been located and a small team is now rapidly working through it. This process will need to be thorough, so it will necessarily take some time. I am only too aware of the need for urgency and I will issue a further statement as soon as this work has been completed. I anticipate being in a position to do so in coming days. 8.98 Again, in direct contrast to the approach taken by Mr Yates, in his press release Mr Starmer gave a provisional indication but reserved his position until a thorough examination had been conducted. It is important to appreciate that Mr Starmer intended that this exercise should be limited: the examination was confined to the material that the police had physically supplied to the CPS and not the unused material, because reviewing the unused material would have been an extensive and time consuming task.487 Thus, for example, the for Neville email was part of the unused material and so was not examined.488
8.99
8.100 This underlines the point made above: by its very nature, unused material is only examined for the purpose of disclosing material that might undermine a prosecution case or assist the defence in a prosecution being mounted. For the DPP, the critical issue was to identify what the CPS had done in the light of the material that had been provided as part of a file to prosecute or advise on prosecution. This was a reasonable approach and the fact that Mr Starmer wanted some time taken over it also demonstrates a difference from the line taken by the MPS. As it happened, however, due to a misunderstanding, the team at the CPS did not examine the entirety of the evidence in their possession. The overlooked documents included the witness statements and exhibits used in the prosecution of Mr Goodman and Mr Mulcaire. 8.101 Unlike the police (where all the relevant officers, save for Mr Clarke, continued in service), the CPS in general and Mr Starmer in particular were hampered by the fact that Lord Macdonald was no longer in post and Ms Carmen Dowd had left the service.489 Throughout 2009 and 2010, Simon Clements, the new Head of Special Crime Division, was responsible for briefing Mr Starmer on issues relating to voicemail interception490 although he had not been involved
p97, lines 9-13, ibid John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-5.pdf 487 p12, para 41, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-KeirStarmer-QC.pdf 488 p12, para 42, ibid 489 p4, para 13, ibid 490 p5, para 17, ibid
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in the matter in 2006 or 2007. Accordingly, the CPS was reliant, perhaps over-reliant, on what the MPS told it about the events of those years. The paucity of material available to the CPS at this early stage is demonstrated by the notes of a conference which took place with junior counsel, Mr Mably, on 10 July 2009.491 The principal point which he remembered was the need to ring fence the investigation in order to avoid personal embarrassment to Princes William and Harry. Unsurprisingly, he could not recall any of the fine detail of the case. 8.102 As if again to underline that this was not simply just another article, the 9 July 2009 also saw the Chairman of the Culture Media and Sports Committee (CMS) write to Sir Paul Stephenson, asking him to submit written evidence to the Committee concerning the investigation into voicemail interception.492
After 9 July 2009: the on-going response

8.103 The following day, 10 July 2009, Mr Yates convened and chaired a second Gold Group meeting to seek update from yesterdays meeting.493 This time DCS Surtees was also present. The following is recorded in the minutes:494 The original enquiry team (Op Caryatid) were aware that the defendant Glenn Mulcaire was speaking to numerous people and other journalists to the very nature of his job. The MPS sent a letter to News of the World asking them to reveal the phone numbers for their journalists so a comparison could be made on the seized data. It appeared [Mr Mulcaire] often used the News of the World switchboard so it was difficult to confirm who he was speaking with. They refused to co-operate. Telephone data went into 50,000 + and although further analysis could have been conducted to identify other journalists etc, it was decided in conjunction with CPS / Counsel, to set parameters and from a proportionality point of view, to focus on evidence that would support charges and attract suitable penalty at court for the level of criminality involved. Effective use of Police resources was also considered at the time and discretion to investigate (R v Blackburn). The data examined did not unravel a conspiracy with other journalists so was not extended. If the MPS were to consider extending remit now then the phone companies no longer hold the data so it would not be feasible to investigate. It is also worthy to note that the victims subject to interception, apart from the two convicted defendants, they did not have any other suspect / target numbers attempting to intercept their phones. [DCS Surtees] stated that during the S18 searches of News International the Police team met resistance and threats to use force to remove them from the premises. There was a general lack of co-operation on their part. 8.104 These discussions brought to the attention of Mr Yates that evidence gathered did indicate that other journalists might be involved and that further analysis of the telephone data could have been conducted to identify other journalists, but that no analysis was conducted for reasons of proportionality. They also flagged to Mr Yates the strong resistance from NI to the search. They did not, however, cause Mr Yates to review his decision of the previous day. Even if Mr Yates did absorb that there was in fact evidence that might implicate other journalists,
491 492
Not published John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-63.pdf 493 p1, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-12.pdf 494 p2, John Yates, ibid
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he appears just to have accepted, again at face value, that further investigation would not now be feasible. I am driven to the conclusion that having reached his dogmatic conclusion the previous day, he had closed his mind to the question of whether there might be material in police possession that could justify reopening the investigation. 8.105 This entrenched position is relevant when considering the protestations made by Mr Yates that it was not just an eight-hour exercise, but a continuing exercise of reviewing, considering, reflecting about, you know, whether we were on the right track and whether we needed to do something different.495 In my judgment, given the emphatic and publicly announced response on the previous day, to the extent that there was a continuing review at all, it was extremely focused, wrongly demanding nothing short of new evidence before consideration would be given to reopening the investigation. He accepted that after 9 July he did not continue with the establishment of the facts exercise. His evidence was that the continuing exercise was to do with all about the victims, actually, all about the victims.496 8.106 DCS Surtees has submitted further evidence497 in which he states that the minutes of 10 July 2009 were not a wholly accurate reflection of what was discussed and that in this meeting and subsequent meetings he attended, he was vocal in advancing his view that the matter should be re-opened and re-investigated for the very reason that he knew there were evidential leads to pursue and that the rationale for closing the investigation in 2006 did not exist in 2009. He states that he challenged Mr Yates and even suggested that Her Majestys Inspectorate of Constabulary (HMIC) should be appointed to investigate. DCS Williams, in his further evidence, agrees that DCS Surtees was quite vociferous, at his first meeting with Mr Yates in suggesting that he review or reopen the investigation or that HMIC have an independent look at it.498 8.107 DCS Surtees was not asked about 2009 when the evidence was called and Mr Yates has not been asked to respond to what is now said. In the circumstances, as a matter of fairness, I am not prepared to reach any conclusion on this issue. By 10 July, however, the scene had been set both by the briefing given by DCS Williams and the press announcement of the previous day: it would have required considerably more than DCS Surtees calling for a review to persuade Mr Yates to alter the course he had fixed in place. Furthermore, to be fair to Mr Yates, it is right to note that in the briefing note to which DCS Surtees contributed, dated 12 July 2009, and considered below, the evidence was not represented in a way that steered the reader to the conclusion that there were viable leads. 8.108 It is appropriate next to refer to the fact that, on 11 July 2009, an article written by Andy Hayman was published in The Times. In that article, Mr Hayman claimed that the original investigation had left no stone unturned and that if there had been the slightest hint that others were involved, they would have been investigated. These were extraordinary assertions to make given the true scope of the investigation and given that Mr Hayman was not in a position to comment on the thoroughness or otherwise of the investigation because he was not aware of any of the details. Further, having retired, he had no access to any of the
p51, lines 1-5, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 496 p89, lines 13-16, ibid 497 Second witness statement of Keith Surtees is available on the Inquiry website 498 Second witness statement of Philip Williams is available on the Inquiry website
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relevant papers or decision logs.499 Mr Hayman said that he based his article on his general broad recollection, of how events were.500 8.109 I am satisfied that Mr Hayman was not deliberately intending to mislead and neither do I consider it to be proved that he was motivated by a desire to protect NI from further investigation; unwisely, however, he made defensive assertions which were based not on fact but on his assumption that the investigation would have been comprehensive. He undoubtedly believed the detectives working on Operation Caryatid to be tenacious investigators and that they would have sought to prosecute all offenders against whom there was a sufficiently strong case. In reality, without the relevant information, he set about defending the investigation (and, by extension, both himself and his former colleagues). Furthermore, it was equally imprudent of Mr Hayman to write this article in The Times because, by doing so, he gave the impression, no doubt inadvertently but undeniably, that he was being deployed by NI to give support to the police line which, itself, was in support of NI. 8.110 As referred to above, on 12 July 2009, DCS Williams and DCS Surtees prepared a written briefing note for Mr Yates.501 DCS Williams believed that the briefing note may well have included more detail than he gave orally on 9 July: particularly when it goes into quoting figures, because then we had retrieved the investigative documents from storage and so I would have been able to do that. On the day, I would of 9 July, I would have been doing it to the best of my ability of my memory.502 DCS Williams and DCS Surtees stated the following in that note: 14 It is clear from these documents that Mulcaire had been engaged in a sustained (years) period of research work in various levels of completion. In many there is simply the name of a celebrity or well known figure in others there is more detail with names, addresses, dates of birth, telephone numbers, DDNs passwords, PIN numbers and scribblings of private information. On some there are names which probably relate to journalists and cash sums. (As yet unconfirmed). 15. It should be noted that no evidence existed to suggest that those possible journalists detailed on these sheets had knowledge of the illegal methods undertaken to supply these stories, however, it should be pointed out that in one of the recordings recovered from Mulcaire it is clear Mulcaire is giving instruction to an unknown person (possibly a journalist) on the telephone, on how to access messages of Gordon Taylor. (As yet unconfirmed who this person is). 16. Also recovered were a number of contracts between Mulcaire and the News of the World, some show agreements to pay Mulcaire a wage of 104,988 per year In addition to these contracts other financial documents recovered highlighted individual payments to Mulcaire from the NOTW for instance in the case of Gordon Taylor an agreement to pay 7000 once a story had been printed. (All used by counsel in the criminal prosecution). 8.111 It was also claimed in the briefing note that:503 All the available evidence in terms of scale and potential role of News of the World
p142, line 6, Andy Hayman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-2012.pdf 500 p142, lines 10-11, ibid 501 John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-14.pdf 502 p5, lines 4-9, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 503 para 33, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-14.pdf
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was part of the prosecution case Nothing has been hidden from the public as to what was found it has just not had the opportunity to be fully heard. 8.112 The content of this briefing note leads me to the conclusion that even when DCS Williams had reviewed the investigation papers, his aim when briefing Mr Yates was only to reinforce the position that there was no evidence; that is not surprising given the view that he continues to maintain and, additionally, the fact that three days earlier Mr Yates had announced that there was nothing new to consider. The conclusion reached on the value of the corner names, at paragraph 14 of the note, appears to have been infected with the inaccurate analysis that there was no evidence that those identifiable by the corner names knew that Mr Mulcaire was obtaining the information unlawfully (when in fact there was circumstantial or inferential evidence of the same).504 It is clear that the note conveyed that the officers suspected that the criminality went far beyond just Mr Goodman, but it did not convey any belief that there was material that could be developed in a wider investigation. In the light of what he has recently argued, it is surprising that DCS Surtees did not ensure that this was communicated in the written document.
8.113 It is evident that this briefing note introduced Mr Yates to evidence implicating other journalists, albeit the evidence was not given the epithet: corner names. It is right that the evidence was immediately followed by the assertion that no evidence existed that those journalists knew of the illegal methods used by Mr Mulcaire, but it gave Mr Yates the scintilla of evidence that he had protested he did not have.505 During his evidence Mr Yates said that he did not know about the corner names.506 When taken to these paragraphs of the briefing note, he said that they didnt hit home in that way.507 I find that this reference to evidence implicating other journalists did not hit home precisely because of his closed and defensive mind-set, which caused him to overlook the significance of these paragraphs. That said, during his evidence, he did not accept that there was in fact any evidence that those named knew of the particular method of obtaining the information used by Mr Mulcaire: who knows what techniques, lawful or unlawful, private detectives use and how they get the information, you know, I cant be the judge. What we were worried about was is there any evidence around this, and the view I was given was: no, there wasnt. 8.114 Mr Yates, like DCS Williams (and in the briefing note of 12 July 2009 at least, DCS Surtees), has failed to acknowledge the circumstantial or inferential evidential value of the corner names or to consider how the communications between journalists and Mr Mulcaire might have come about or how the information which Mr Mulcaire obtained might have been passed back to the journalist. I do not pass further comment or reach any further conclusions, however, not least because of the current criminal investigations and impending prosecutions of other journalists at NoTW and my anxiety not to prejudice let alone appear to prejudge what might emerge at any trial.
It is suggested that no evidence in this context does not mean there were no lines of investigation or no suspicion of criminality but that they did not have available at that time sufficient evidence to charge other people. It might be that the officers intended to convey this to Mr Yates, but it would have been entirely reasonable for Mr Yates to interpret the reference to no evidence not as meaning insufficient to prosecute but that there was no evidence capable of being developed 505 This is whether or not the reference to no evidence was no sufficient evidence to prosecute as opposed to no evidence capable of being developed 506 p84, lines 7-10, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 507 p84, lines 21-25, ibid
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8.115 The following extract from the briefing note illustrates that DCS Williams and DCS Surtees had reminded themselves accurately that there were many potential victims despite the continued adherence to the narrow interpretation of s1 of RIPA: It was clear from the spreadsheet and the lines of data supplied by the telephone companies that many potential victims existed and had been subject to their voicemails being called, but that is not sufficient to prove the criminal offence of interception. The burden is on the prosecution to show they actively led to the defendant gaining access to voice messages prior to the intended recipient gaining access. The data alone does not even show whether or not messages existed only that the voicemail had been accessed. 8.116 The following is also recorded in the briefing note:508 Advice indicated that S1 RIPA interception or Computer Misuse Act might be the potential offences for what was happening. The latter apparently had a poor track record in terms of conviction, because of the complexity of what had to be proved and the latter had not been used in respect of telephone voicemail 8.117 This indicates that DCS Williams had refreshed his memory from the papers sufficiently to recall that voicemail interception was not just an offence under RIPA but also under the CMA. Further, at paragraph 28 of the briefing note DCS Williams and DCS Surtees recorded that the victim strategy, in broad terms, had been to inform everyone in the bluebook who had had their unique voicemail access number dialled by the suspects. It continued: At the time the strategy recognized that there was still extensive research to be done with the phone companies to identify what the full extent of victims might be and therefore as outlined under the section above How were victim identified this could be a vastly bigger group of people and in reality we would probably never know the true scale. 8.118 Unfortunately, however, neither of these factors caused DCS Williams to correct his original briefing to Mr Yates concerning the number of victims of voicemail interception which was to the effect that police enquiries showed that the tactic of voicemail interception had only been used against a far smaller number of individuals. In the light of the way that DCS Surtees now puts the matter, it is surprising that DCS Surtees did not himself later correct this misunderstanding: by then, of course, the decision had been made and the defensive line published. Whatever the reason, however, I am confident, however, that it had nothing to do with any relationships with NI. 8.119 Sir Paul Stephenson explained that during intermittent discussions with Mr Yates, as the Guardian maintained its coverage, Mr Yates continued to reassure him that there was nothing new in the allegations that would warrant the reopening of the investigation and the investment of significant additional resources.509 To put his involvement in its proper context, Sir Paul said that the matter was not a priority for him as Commissioner. He occasionally had discussions with Mr Yates about it, but he would not have delved further into it because it was getting the right level of senior attention.510
508
para 24, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-14.pdf para 95, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-PaulStephenson2.pdf 510 p79, lines 6-10, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-5-March-2012.pdf
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8.120 Mr Yates chaired two Gold Group meetings on 13 July. The first was attended by DCS Williams, Mr Clements and Mr Hussain from the CPS, and D/Supt Dean Haydon.511 That meeting dealt predominantly with the question of ensuring that the MPS had been sufficiently diligent in informing potential victims but there was also discussion about whether a letter should be written to the Guardian encouraging the newspaper to share any new information. The minutes stated:512 Following DPA advice, JY decided not to write a letter as the Guardian to date had not produced any fresh information or evidence in their articles. Their articles were based on historical cases. If he did, the Guardian could use spin and claim that he has made a U-turn, had done this under mounting pressure, why was this not done before etc. Press reporting to be monitored in event fresh information comes to light to justify writing a letter. Decision no letter to be sent to the Guardian at this stage. 8.121 According to Mr Clements, Mr Yates told them at that meeting that he was happy to help with piecing together the evolution of the prosecution strategy regarding potential victims.513 Mr Clements and Mr Hussain told Mr Yates that a review was underway and that they would reveal their findings on Wednesday in a press release.514
8.122 The second Gold Group meeting was attended only by MPS personnel, including DCS Williams and DCS Surtees. A separate investigation name, Operation Quatraine, was allocated in order to provide a reference point for work done on the recent issues and the costs incurred. Mr Yates decided that the Gold Group would provide strategic oversight and that all decisions and records would be recorded in the minutes and that no separate decision log would be maintained.515 8.123 On 14 July 2009 the journalist Nick Davies, who had been responsible for the Guardian article, gave evidence to the CMS Committee. He presented the Committee with copies of a number of documents including the for Neville email and the contract with Mr Mulcaire which related to the payment of a bonus for the Gordon Taylor story. 8.124 Also on 14 July 2009 David Perry QC and Louis Mably produced the note to which reference has already been made (see paragraph 3.2 above).516 The key part of the note was the following:517 We did enquire of the police at the conference whether there was any evidence that the editor of the News of the World was involved in the Goodman-Mulcaire offences. We were told that there was not (and we never saw such evidence). We also enquired whether there was any evidence connecting Mulcaire to other News of the World journalists. Again we were told that there was not (and we never saw any such evidence).
Detective Superintendent Haydon was the staff officer to Mr Yates and attended the Gold Group meetings which responded to the Guardian article. He was subsequently appointed as the SIO of Operation Varec: para 9.8 below 512 John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-15.pdf 513 Not published 514 p3, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-161.pdf 515 p4, ibid 516 I have found (see para 3.19 above) that the for Neville email did not form part of the documentation sent by the MPS to the CPS in 2006, but it is clear from the transcript of the hearing before Gross J on 26 January 2007 that the CPS and Counsel were aware of the existence of the contract 517 p2, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-18.pdf
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8.125 This record of the answers given by the police understandably influenced the conclusion reached by Mr Starmer of how the original prosecution had been handled and the extent to which there was any need for a re-evaluation in 2009.518 8.126 Mr Yates also claimed to place heavy reliance on this note from counsel but in contrast to Mr Starmer, it was not reasonable for Mr Yates to infer from it that counsel had checked all the material gathered during the investigation for further evidence of criminality. First, the conference was prior to the review of unused material and was based purely on what counsel were told by the police; secondly, Mr Yates knew (or certainly ought to have known) that the review carried out by counsel (Mr Mably specifically) had been confined to a review of the unused material which had the particular limited purpose of fulfilling the disclosure obligations explained above. 8.127 When challenged about the legitimacy of relying on this review of unused material, given its purpose and that Mr Mably had not been asked to decide how the investigation should proceed, Mr Yates accepted the limited nature of the exercise but said that:519 This was quite an important limb, I would say, in terms of saying, well, okay, he was looking at it from the CPI perspective from the indictment, but if counsel is telling me that they never saw any such evidence, then of course Im going to place some reliance on that. But it was only one limb of a series of aspects which enabled me to come to that view, if you like. And:520 Well, if you read out the sentence in the note, I think its abundantly clear whats there, and on any reading, exculpatory, CPIA or whatever, they are saying theyve done the exercise on CPIA and they never saw any such evidence about others involvement I cant see any other reading of it that would you know, its there. 8.128 Whilst it would be fair to find that Mr Yates might have expected counsel reviewing the unused material to notice a document that stood out as a smoking gun, he could not rely on it to conclude that there was no evidence of further criminality. 8.129 On 15 July 2009, the Chairman of the Home Affairs Committee (adding weight to the enquiries being conducted by the CMS Committee) wrote to Sir Paul Stephenson in order to put a serious of questions to the MPS. 521 He asked to be informed of the extent of previous police enquiries into illegal surveillance by journalists, in particular, whether journalists other than Clive Goodman were investigated and why Mr Yates was convinced that no further investigation was needed. He also asked whether there was any evidence to indicate the existence of arrangements between Mr Mulcaire and other journalists, either at the NoTW or elsewhere, which could have included intercepts and other potentially illegal surveillance. 8.130 Also on 15 July 2009 DCS Williams sent an email to the CPS which contained his recollection of the August 2006 conference with counsel.522 Mr Hussain also prepared a submission for
pp15-16, para 52, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-ofKeir-Starmer-QC.pdf 519 p50, lines 5-11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-Afternoon-Hearing1-March-20122.pdf 520 pp51-52, lines 19-1, ibid 521 John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-172.pdf 522 Not published
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the DPP which set out in summary form the CPS involvement in the case in 2006.523 Perhaps the most important part of it for present purposes was paragraph 3, which read: In addition to Goodman and Mulcaire a third man ... was arrested but was not charged due to there being insufficient evidence to proceed against him. NO other suspects were considered or charged. This has been confirmed to Asker Hussain by DCI Surtees: no other named suspects ... were confirmed as suspects of criminal activity through this investigation. Prosecution counsel has also confirmed that there were no other suspects apart from these three individuals. 8.131 The precise content of any conversation between Mr Hussain and DCS Surtees cannot be ascertained from this note, but I would expect DCS Surtees not to have given the impression that there were no evidential leads relating to named individuals even though there were no confirmed suspects as such. 8.132 On 16 July 2009, following receipt of this submission from Mr Hussain, the DPP issued a press statement. It stated that the police had provided the CPS with all relevant information and that the approach to charging Mr Goodman and Mr Mulcaire had been appropriate. It is noteworthy that the press release relates only to those identified to the CPS and reads as follows:524 Having examined the material that was supplied to the CPS by the police in this case, I can confirm that no victims or suspects other than those referred to above were identified to the CPS at the time. I am not in a position to say whether the police had any information on any other victims or suspects that was not passed to the CPS. In light of my findings, it would not be appropriate to re-open the cases against Goodman or Mulcaire, or to revisit the decisions taken in the course of investigating and prosecuting them. 8.133 Also on 16 July 2009 DCS Williams wrote a report entitled: Why didnt we expand the investigation? in which he stated that:525 My practical assessment was that no matter what we found out [once the investigation was overt] any other potential suspects were now firmly aware of what we were doing and would certainly be taking all steps to avoid incriminating themselves. Against this backdrop I knew how challenging it had been to get the case this far based upon technical proof (this is a huge challenge which perhaps understandably everyone is underestimating) and now that potential other persons who may or may not have been involved were alerted my belief was that we would not be able to secure the level of proof necessary to get across the criminal threshold. Added to the above I knew that any attempt by us would [be] highly likely to be protracted for the reasons already highlighted and it would risk clouding the issues around a solid, clear and proportionate case. All of the above was not a decision that I made in isolation. Throughout, this investigation had the highest oversight at all times. The potential breadth/scale of what may or may not be out there was fully discussed together with what resources
523 524
Not published p3, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-21.pdf 525 Not published
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might have been required to even begin exploring that. There was no appetite to expand the investigation and the strategic guidance given to me was to continue with what I had before me as outlined above. 8.134 DCS Williams argues that this report demonstrates he communicated to Mr Yates that there were evidential leads and that the strategic decision had been made not to follow them for resourcing reasons. In the context of the briefings, I do not consider that it would have conveyed any such message to Mr Yates. The report suggests that the decision was made at least predominantly (if not entirely) on the basis of the quality of the evidence and viability of the leads, rather than making clear that resource concerns overrode considerations of the quality of the evidence. 8.135 DCS Williams also set out his views526 on what would be the issues should it be decided to now open an investigation into any aspects of NOTW activities from that period: 1. Maximum success already achieved My rationale for what we did then I believe serves as a strong basis for why it would be highly challenging to find anything more that would lead to a criminal prosecution which would have any greater benefit in terms of what we have already achieved. 2. Data In terms of practical challenges I doubt whether the necessary data exists now. Even at the time Orange for example only hold what data they had for a few hundred days. So for example to explore in terms of data whether or not Gordon Taylor had been the victim of intercept in June 2005 or before as indicated by one seized document was not possible then let alone now. 3. Victim Cooperation I believe the current climate is making an assumption around who would want to come forward as a victim/witness. Given that the people who are targeted are in the public eye for one reason or another I suspect many of them would not want to [be] identified publicly as a victim due to what it might suggest about their private life. 4. Public Duty Taking into consideration all that I have written above I do not feel we would be serving the criminal justice system for the public good, but all we would achieve is feeding the civil litigation industry for individual gain at much cost to the general public. 8.136 In my judgment, this is another example of the way in which DCS Williams represented matters defensively and in such a way as to reinforce the decision that reopening the investigation was unwarranted. 8.137 Later that evening, on 16 July 2009, the press office of the DPP received an enquiry from Nick Davies as to whether the DPP had called for the NoTW contract and the for Neville email.527 This enquiry promoted a flurry of late night activity within the CPS. 8.138 On 17 July 2009 Mr Yates chaired a further Gold Group meeting during which a question was raised about the possible involvement of Neville Thurlbeck (following a question to Mr Yates from Chris Huhne MP),528 in light of the for Neville email. According to the minutes of the meeting, DCS Williams stated that this formed part of his wider prosecution strategy relating to both suspects and victims, which was still robust to that day. The minutes also
Not published p18, para 62, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-KeirStarmer-QC.pdf 528 p2, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-22.pdf
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demonstrated that DCS Williams emphasised the lack of co-operation from NoTW during the investigation, including no comment interviews, resistance during the searches and refusal to cooperate with telephone data requests. 8.139 After the meeting, but also on 17 July 2009, a briefing note was prepared for Mr Yates, presumably by DCS Williams, which explained the reasons for not having followed up the possible implications of the for Neville email.529 He stressed that the mere sight of transcripts of conversations is not itself sufficient evidence to charge with an offence of conspiracy to intercept communications. He explained that: It is important to differentiate the investigative strategy and risk reduction strategy taken at the time, to the very different focus today of whether in fact lots of journalists at the NOTW or elsewhere were involved in a criminal conspiracy. Police could have arrested Thurlbeck and/or others. The experience police had of the stance taken by News International staff led them to suspect that any other journalists arrested would not readily assist police by answering any questions this would inevitably leave investigators with insufficient evidence to charge others. Further enquiries were undertaken by investigators to prove the involvement of other journalists by requesting telephone information and floor plans from News International at the time. These were frustrated from the outset. 8.140 For their part, during the course of 17 July 2009, the CPS ascertained that the for Neville material was part of the unused material and nothing more. A copy of the email was faxed by the MPS to the CPS later that day, and drawn for the first time to the attention of Mr Starmer. Mr Clements told Mr Starmer that he had spoken to D/Supt Haydon and that: the Met do not consider that the email in question has the significance that the Guardian attribute to it.530 Mr Starmer was immediately concerned about the email, because [w]hatever view others took about this email, I was concerned about it. Taken at face value, it seemed to me to suggest that both the author and recipient were possible suspects.531 In answer to my question, Mr Starmer indicated that his assessment of the email was that it was more in the nature of an evidential flag or pointer than a smoking gun, although, even on that basis, he recognised that it did not correspond with the reasonably firm assurance he had been given that there had not been thought to be other suspects.532 8.141 At 4pm on 17 July 2009 a meeting took place between Mr Starmer and David Perry QC. The latter confirmed his recollection of the answers the police gave to his questions regarding other possible defendants. However, Mr Starmer was still concerned about the email and decided to write to Mr Yates inviting him to consider whether further investigation was now required. A draft press statement had been prepared to that effect, but, following discussions with Mr Yates later that evening Mr Starmer was persuaded not to issue the statement but to meet Mr Yates the following Monday morning (20 July 2009) to discuss the email in greater detail. During the course of the Friday evening discussions which followed the meeting with Mr Perry, Mr Starmer sensed a degree of push-back from Mr Yates against his suggestion that there should be a reinvestigation or further investigation of the for Neville email. Mr
John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-23.pdf p21, para 73, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-KeirStarmer-QC.pdf 531 p21, para 74, ibid 532 p5, lines 12-22, Keir Starmer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-4-April-2012.pdf
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Starmer did not suggest that there was anything sinister or untoward about this, given the time of day.533 Following those discussions, Mr Starmer issued a press statement which merely said: the DPP is now considering whether any further action is necessary. 8.142 On Monday 20 July, the meeting with Mr Yates and others (including DCS Williams) took place as arranged; the notes made on behalf of the MPS have been made available to the Inquiry.534 Mr Starmer explained to the police that Mr Perry had told him that he could not remember discussing the for Neville email at the time of the prosecution. DCS Williams reiterated the point that there had been discussion about other possible defendants. The following appeared in the notes: KS. David and Louis asked if evidence editor and other journalists. Told not. Saw no evidence to support 8.143 Mr Starmer confirmed that this assertion was never contradicted by anyone present at the meeting.535 8.144 According to Mr Starmer, the key contribution made by Mr Yates to the meeting was that this was not new material; it had been seen by counsel and that the police investigation focused on set parameters, which were an operational matter for the police; furthermore, in any event, the email will go nowhere. Unsurprisingly, Mr Starmer was not entirely comfortable with this response, given that Mr Perry did not have a recollection of seeing the email, and to the extent that it might have been seen by junior counsel this was in a specific and limited context; that the set parameters rather begged the question; and that his assessment of the evidential strength of the email was not the same as the assessment made by Mr Yates. The matter was left on the footing that Mr Starmer would seek written advice from Mr Perry on the status of the email, and that DCS Williams would do a background note to avail him. 8.145 Shortly after 6pm that evening, DCS Williams sent the CPS a briefing note, as they had requested, which he entitled Challenges faced in the investigation and subsequent prosecution for the CPS.536 Under the rubric Challenges, DCS Williams set out his understanding of the law which continued to be based on the narrow view of RIPA 2000. He also made a number of observations in the note about the for Neville email, all of which tended to suggest that neither in 2006 nor in 2009 could it amount to evidence that the criminality at the NoTW went beyond Mr Goodman. For instance, he set out his analysis that there was nothing to indicate that Neville had actually seen the document and that even if he had, reading the email would not have been an offence and so there was no evidence to link him to a conspiracy to intercept communications. It is worthy of additional note that this specific analysis of the email was also to form the basis of the evidence Mr Yates gave to the CMS Committee. 8.146 Mr Starmer was anxious to resolve the issue as quickly as possible and so he asked Mr Perry to provide an overnight advice, that is to say before the following morning. In effect, the DPP wanted Mr Perry to answer the following four very specific questions:537 (a)
533
based on his knowledge of the case in 2006 and in particular the technical and practical
pp8-9, lines 21-9, Keir Starmer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-4-April-2012.pdf 534 Not published 535 p13, lines 4-16, Keir Starmer QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-4-April-2012.pdf 536 John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-25.pdf 537 p24, para 86, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-KeirStarmer-QC.pdf
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issues associated with proving offences of interception, what advice would he have given to the CPS/police at the time in respect of the for Neville email, had it been brought specifically to his attention? (b) (c) (d) based on his knowledge at that time (July 2009), would his advice be any different? based on his knowledge in 2006 whether he was of the view that the police had sufficient to arrest and/or interview Ross and/or Neville. based on his knowledge at that time (July 2009) whether he was of the view that the police had sufficient to arrest and/or interview Ross and/or Neville.
8.147 At the time of the urgent request for advice, Mr Perry did not have access to his original papers and was also working under the pressure of a court appearance. Rather than seek further time from Mr Starmer, Mr Perry decided to rely on what he could recall of the prosecution and on the briefing note provided by DCS Williams. He set out his advice under the heading Draft Advice although it was not expressed to be contingent on any further information or input from either the MPS or the CPS and was never replaced by a further document. The advice arrived at the CPS at 09:40 hrs the following morning, namely 21 July 2009.538 Mr Perry indicated that he only had a dim recollection of the decisions taken in relation to the investigation and prosecution strategy, but that he had found the note prepared by DCS Williams to be extremely helpful and to accord with such recollection as he did have. Mr Perry expounded the narrow view of the law in lapidary and unqualified terms: to prove the criminal offence of unlawful interception contrary to section 1(1) of the Regulation of Investigatory Powers Act 2000, it is necessary to prove that the message was intercepted before it was accessed by the intended recipient. 8.148 Mr Perry also appeared to suggest that he gave the same advice to the police and the CPS in 2006.539 He stated in his advice dated 20 July 2009 that the for Neville email did not cause him to acquire a different view of the merits of pursuing other possible defendants. He adopted eight of the nine points made by DCS Williams in relation to the evidential value of the email. 8.149 Mr Perry has accepted that his statement about the law was too emphatic and that he had been over-reliant on the briefing note.540 Given that he did not have his papers and was advising overnight, I am fully prepared to accept the explanation why he expressed this view, despite having given different advice in the conference with the CPS and the police in August 2006.541 8.150 With the benefit of hindsight, Mr Starmer has since said that it would have been better if, before Mr Perry committed himself, he had been given more time along with the opportunity to check his papers. That is undoubtedly right but, despite his understandable anxiety to meet the very tight deadline set by the DPP, Mr Perry should not have given unequivocal and unqualified advice, which in any event did not reflect the considered advice he gave in 2006, without, first, re-acquainting himself sufficiently with the law and relevant factual
Not published In an email dated 22 October 2009 Mr Mably also adopted the narrow interpretation (not published). Mr Perry believed that this may have been based on the wrong turn which he took in the Advice he drafted in July, which may itself have affected the recollection of Mr Mably: pp44-45, [lines 21-6], David Perry QC, http://www.levesoninquiry.org. uk/wp-content/uploads/2012/04/Transcript-of-Morning-Hearing-4-April-2012.pdf 540 p38, lines 14-17, and p39, lines 18-23, ibid 541 As I found at para 3.15 above, the advice Mr Perry gave in 2006 was that although the narrow view was arguably correct, the argument could be met in a number of ways and in any event the inchoate offence of conspiracy did not depend for its proof on the correctness of the narrow interpretation
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background; secondly, reviewing his papers relating to the prosecution; and, thirdly, if it was necessary, reconsidering the likely interpretation of s1 of RIPA. He should not have permitted himself to rely almost entirely on a briefing note provided by DCS Williams (whom he did not blame) or to assume that it was accurate or reflected the advice he gave in 2006. 8.151 Although it might have caused his client some frustration, I have no doubt that Mr Perry should have told Mr Starmer that he needed more time before he could give accurate advice; alternatively, he could have expressed a view only on a provisional basis following it up shortly thereafter, when the papers were to hand and the necessary time available. Entirely accurately, Mr Perry summarised the position by saying that: the moral of the story is: dont do advices overnight if you dont have the papers.542 8.152 The DPP wrote to the chairman of the CMS Committee on 30 July 2009.543 Basing himself heavily on the advice given by Mr Perry, Mr Starmer confirmed that it would not be appropriate for him to reopen the cases against Mr Goodman and Mr Mulcaire, nor to revisit the decisions taken in the course of investigating and prosecuting them. 8.153 On 25 August 2009 DCS Williams provided what he called a very rough draft opening statement for the CMS Committee hearing. It included the following paragraph which, in the circumstances, did not fully reflect the complete picture of what had happened in 2006:544 Suspects In 2006 Police, CPS and Senior Counsel considered whether or not there was evidence against anyone else and in the light of recent concern have revisited that decision. Supported by Senior Counsel the collective belief is that when set against both the investigation and prosecution strategy there was and remains insufficient grounds to arrest and /or interview anyone else. 8.154 Presumably for the purposes of the CMS Committee hearing,545 DCS Williams prepared a further briefing note, dated 2 September 2009, entitled Efforts to pursue investigation with NOTW which including the following information: Post arrest at a case conference between police, CPS and Council [sic] the extent of what we could legally ask for access to through a Production order was discussed and again based on the evidence we had that was deemed highly likely to be limited to the activities of Goodman and potentially Mulcaire in affect [sic] we would not be allowed to do anything that might be looked upon as a fishing exercise. NOTW solicitors had already made it known of their desire to cooperate with the investigation and the best way forward was decided to be through cooperation, but to explore/prepare a production order in tandem to be used as legally possible. 8.155 DCS Williams then explained how Burton Copeland had responded to the various request for information in the following terms: Throughout it would be fair to say that NOTW took a robust, but legal approach to our requests and provided the material in relation to Goodman and Mulcaire only, e.g. the payments to Alexander total 12,300. What was received did indeed become
p39, lines 3-4, David Perry QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-4-April-2012.pdf 543 John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-G.pdf 544 John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-30.pdf 545 DCS Williams and Mr Yates gave evidence to the CMS Committee on 2 September 2009: paras 8.217-219 below
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part of the prosecution, but we did not have the legal basis with which to push our investigation further. 8.156 On 3 November 2009 the DPP wrote again to the Chairman of the CMS Committee. He set out in that letter that the advice given by Mr Perry had been that the narrow interpretation of s1 RIPA was correct and that there was nothing to be gained from seeking to contend for a wider interpretation.546 On the same day Mr Yates also wrote to the Chairman of the CMS Committee. He confirmed that the police had in their possession hundreds of unstructured handwritten sheets showing research into many people in the public eye. He said: It is not necessarily correct to assume that their possession of all this material was for the purposes of interception alone and it is not known what their intentions was [sic] or how they intended to use it.547 8.157 Before leaving this section, it is important to deal with the allegations that have been made about the integrity of Mr Yates. I recognise that I have strongly criticised his decisions not just with the benefit of hindsight (which is no criticism at all) but having regard to what he knew or could have discovered. As to the question of ulterior motive, however, it is important to analyse the evidence. On this question, Mr Yates said:
I absolutely know what I did on July 9th, I know what I was provided with, I know the judgment I made. You know, time has shown that to be and whats happened not the greatest call, but at that time it was the right call, and it wasnt influenced in any way, shape or form by other matters. 8.158 Those who worked closely with Mr Yates were and are convinced of his integrity. DCS Williams (whom I have also criticised) said:548 In my workings with [Mr Yates], Ive not worked with him directly before, but I saw nothing or heard nothing that me think that we that there was anything wrong going on here, that we were looking to hide anything. He was looking at an investigation that was four years old. I briefed him and over the period I believe he was genuinely seeking to understand what had happened and make proportionate decisions. I just want to assure you that Ive seen nothing that makes me think that there is anything other than a genuine desire to do a proper investigation and to keep the public informed about whats going on. 8.159 As for more senior officers, Lord Blair offered the following assessment: Do I believe that John Yates took that decision in order to placate News International? No, I dont. I just dont believe that he did that. But his difficulty, without making it more difficult for him, is the number of contacts, and that, I think, is a problem.549 8.160 Sir Paul Stephenson was convinced that Mr Yates acted in good faith.550 He added that: I think we ended up defending instead of challenging. Do I believe that there was a deliberate
John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-3.pdf John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-4.pdf 548 pp19-20, lines 20-6, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf 549 p73, lines 15-19, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-MorningHearing-7-March-2012.pdf 550 p61, lines 23-24, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf
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attempt to back off because it was News International? No, I do not, sir.551 He made clear that he did not believe that fear of taking on a powerful enterprise comes into it.552 8.161 In reality, there is no evidence from which it would be right to infer that Mr Yates was swayed in his decision making by his friendship with Mr Wallis or his relationships with NI more generally. That he did not take the Guardian article (or the follow up) seriously enough is beyond doubt but I do not believe that he was acting out of fear of NI, or in a desire to protect Neil Wallis or NI or, indeed, to garner favours from the organisation. 8.162 I have considered also the subtler point whether because he knew the personalities of the leaders at the NoTW and had amicable relations with them, he was less prepared to think ill of what they had been doing. I agree with Mr Garnham QC that I do not have the evidence to make such a finding. I do not consider there is any basis for concluding that Mr Yates would permit or did permit his own personal knowledge of individuals to influence his assessment of whether they may be involved in obtaining information for stories by criminal means. Whatever conclusions I reach about the way in which Mr Yates went about discharging his responsibilities in 2009-2010, I do not challenge his integrity.
The second attempt to ensure that all potential victims had been informed
8.163 Having undertaken on 9 July 2009 to ensure that all suspected victims had been informed, on 10 July 2009, Mr Yates issued a press statement asserting that: the process of contacting people is currently underway and we expect this to take some time to complete. 8.164 In the briefing note dated 12 July 2009, DCS Williams and DCS Surtees told Mr Yates that although it was not known in detail what actions each mobile phone company took, the steps they did take included contacting customers who they thought might have been a victim.553 They gave Mr Yates this assurance despite the fact that neither had ensured either that the phone companies understood that this was their responsibility or that the phone companies had, in fact, informed their customers. It is plain that Mr Yates was significantly misinformed. No doubt reassured by this briefing, at the first Gold Group meeting on 13 July 2009, Mr Yates gave DCS Williams and DCS Surtees the task of reviewing the remainder of the list to establish if there were any other potential victims that should be informed.554 He also gave DCS Surtees the responsibility of confirming, from the files, who the police had informed and when. It is fair to note that Mr Yates was, indeed, seeking to honour his public undertaking to ensure that all potential victims had been informed. 8.165 DCS Surtees has submitted that this tasking was predicated on the narrow interpretation of victim, namely that a person was only a victim if there was proof that a voicemail message sent or received by him/her was intercepted before it was heard by the intended recipient. It is very surprising that DCS Surtees has made this submission given that it is wholly at odds with the wording of the original victim notification strategy and the summary of the victim notification strategy that he and DCS Williams gave in the briefing note of 12 July 2009. It is also at odds with the undertaking Mr Yates made on 9 July 2009 to inform all victims, including those where there was any suspicion that they might have been victims and with the minutes of the second meeting on 13 July 2009, the relevant extract of which is set out in
551 552
p82, lines 12-15, ibid p88, lines 8-10, ibid 553 p7, para 3, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-14.pdf 554 John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-15.pdf
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the paragraph below. If this was the approach, it is difficult to explain how it developed. DCS Surtees does also make the point that the meetings record only a small part of the discussions that took place. 8.166 In the minutes of the second meeting on 13 July 2009, it was recorded that, over the weekend, the police had informed Andy Coulson that he was a potential victim and that attempts had been made to contact seven others, albeit only one of those seven attempts was successful.555 The following was also noted: Over weekend. PW reviewed all files again and decided original victim strategy still stood re informing people (i.e. nothing had changed, apart from Coulson position) and after speaking with JY, it was decided no further contact was attempted with any other people. Weekend focus was then diverted to preparing briefing note and chronology of events. PW stated after reviewing list there were approx. 60 people with activity on their phones. JY asked rationale for not informing them now. PW stated they had been in contact with phone companies and they were compiling in writing what they did at the time. Response should [be] received in next 24 hours and therefore decision pended until we see phone companies response in event there could be duplication of work. Press line should read presently not prepared to discuss (this is personal data). 8.167 It is not clear how DCS Williams reached the conclusion that the original victim notification strategy still stood given the reality that it had substantially failed. The evidence indicates that this correspondence with the phone companies was the first attempt by the police to check that the phone companies had been notifying potential victims in line with the victim notification strategy. 8.168 On 14 July 2009 DI Maberly received a response from O2 to this correspondence from the police asking them about what steps they took following the investigation.556 O2 said: The matter was fully investigated, and information came to light indicating a small number of additional O2 customers who may have been targeted in the same way. All the O2 customers affected were contacted by the O2 Fraud & Security Team in May 2006. The customers were advised that there may have been an attempt by a third party to access their voicemail messages. They were told we were making changes to the voicemail systems to stop this happening, and advised that O2 were working with the police to assist in providing evidence to identify and prosecute those responsible. Some customers requested their details be passed on to the police, and this was done. 8.169 Vodafone and Orange also replied within the month. They set out what steps they had taken but neither mentioned having taken any steps to identify or inform potential victims of voicemail interception.557 Surprisingly, despite the imperative to identify individuals who might not have been informed and the clear instructions from Mr Yates, it does not appear that the police made any attempt to follow this up with Vodafone or Orange and query whether they had notified any potential victims. Neither have I seen evidence that Mr Yates
555 556
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subsequently asked DCS Williams or DCS Surtees what had been ascertained from the phone companies. 8.170 On 22 July 2009, as part of Operation Quatraine, Mr Yates directed that all the material seized from Mr Goodman and Mr Mulcaire be scanned onto ALTIA. ALTIA was a relatively new IT system, which had not been available when the investigation began, which enabled the mass scanning of hard copy exhibits to make them searchable on the HOLMES database. This was intended to assist the MPS in responding to the growing number of requests for information558 from individuals who were concerned that their voicemail messages may have been intercepted. An email drafted on behalf of Mr Yates indicated that the exercise was to be a priority. The email read:559 It is of critical importance to the MPS and the command that this is progressed as a priority and this requires attention today please to coordinate. 8.171 Mr Yates explained that around ten detectives spent over four months undertaking this task at a cost of over 200,000. It is noteworthy that those working on the exercise appear to have been directed that if, when examining the exhibits, they identified potential further leads for investigation, they should be referred to the SIO for consideration.560 However, no such leads, if identified at all, were brought to the attention of senior officers, and the task of scanning documents was not properly completed. Mr Yates said:561 I mean in fairness to me on 23 July or whatever it was I was so concerned about our inability to analyse the material in any shape or form that I asked for it to be put on the HOLMES system. You have that email in your pack, where Ive said as a matter of priority I took people off counter terrorism operations to put all the material on the HOLMES system. Now, if during that exercise run by detectives who, you know, would have a detective outlook, I would have expected, if concerns began to be raised about whats actually in that material, stuff thats come out, that I would have been told, but that didnt happen. So I was sufficiently exercised, as critical incident in the Met parlance, to put the stuff on a computer, to invest I think it was ten detectives for three or four months working long days to put all this material on a system so I could search it, so I could actually with confidence say when people wrote in, I could say youre either on the system or not on the system. Now unfortunately that exercise wasnt done as thoroughly as it should have been. 8.172 On 24 November 2009, having been contacted by Nick Davies for information about whether all potential victims had been informed, Orange wrote to DI Maberly in the following terms: Weve drafted a press statement the part relevant to the issue in question (i.e. if we were asked to investigate and contact customers) is: We were not asked nor felt it right to further investigate these customers as this was part of the Police investigation. We were also advised not to contact these customers as it could jeopardise the investigation and prejudice any subsequent trial.
p3, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DI-MarkMaberly.pdf 559 John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-27.pdf 560 Not published 561 pp102-103, lines 21-18, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf
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Do you think this is fair comment? ... DI Maberly replied the following day and said: I dont think the comments are totally fair. Let me speak to our legal team / SIO (Senior Investigating Officer), who may have a documented record of the strategy agreed at the time. 8.173 Orange replied within a few minutes and said:562 Unfortunately we have responded but would be happy to issue a clarification if necessary. Were not disputing that the ball was in our court, just that no specific [italics in original] request was made to investigate and contact 8.174 There does not appear to have been any real reaction to the implications of this email correspondence or beginnings of a recognition that the victim notification strategy had failed. 8.175 On 25 January 2010, DI Maberly emailed O2 and Orange, explaining that following a review of material requested by DCS Williams, the police had identified a very small number of people who were a target for interception but who had not been informed of this. Presumably these were individuals who, pursuant to the victim notification strategy, should have been notified by the police. DI Maberly also explained that the police were intending to give the relevant numbers to the phone companies in order to ascertain to which network they belonged at the time and might then ask the phone companies to make contact with those customers. O2 replied that day in the following terms:563 We identified a number of customers we believed may have had their voicemails intercepted and I advised Philip Williams at the time that we intended to proactively contact them and let them know. We could not say for certain that their voicemail had been intercepted only that there was evidence it had been attempted. From my memory this was approximately 40 customers, certainly not more than that number. The only customers from this list we did not contact as part of that process were the members of the royal household that the police were dealing with directly. We had no information that voicemail messages belonging to any additional customers on the O2 network had been intercepted or had interception attempted. 8.176 This demonstrates that O2 informed their customers because they made the independent decision to do so and not pursuant to a request from the police. 8.177 Orange also replied the same day stating that they told Nick Davies that they had given the police the phone numbers of 45 Orange customers whose voicemails boxes had been accessed by the suspect numbers provided by the police.564 8.178 On 26 January 2010, DI Maberly spoke to a representative from Vodafone. She told DI Maberly that she did not confirm any numbers to Nick Davies.565 8.179 On 1 February 2010, the MPS received a request from Nick Davies under Freedom of Information Act 2000; this included requests for the total number of full names, partial names and initials including possible misspellings and duplications, which were listed on the database and the total number of mobile phone numbers (full and partial).
562 563
Emails not published Not published 564 Not published 565 Not published
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8.180 On 9 February 2010, Mr Yates wrote again to the Chairman of the CMS Committee and contended that during his evidence in September 2009 he had answered the questions as fully as possible. He stated in that letter that:566 Since that appearance, and in accordance with my initial press statement, I have been attempting to ensure that the police have taken all proper, reasonable and diligent steps to inform all those individuals where there is any evidence that they may have been subject of any form of interception. This has involved considerable and time consuming work, in particular the use of an IT process previously unavailable. Even now we cannot with any certainty answer questions relating to identifying individuals and whether or not they were a victim of interception whenever a name in whatever context was identified it was captured and put onto an MPS system. The name could range from initials, single names right through to multiple variations and spellings of a host of fore and/or surnames. To even attempt to discern from the material to what extent this data refers to distinct individuals or for what purpose would have required extensive work beyond the scope of the criminal investigation and would not have been a proportionate use of police resources. A similar process would then have had to be undertaken to link phone numbers and or voicemail messages to these individuals. What we can say is that where information exists to suggest some form of interception of an individuals phone was or may have been attempted by Goodman and Mulcaire, the MPS has been diligent and taken all proper steps to ensure those individuals have been informed. 8.181 The latter paragraph indicates that the police had still failed to ascertain or recognise the extent of the failure of the victim notification strategy despite having identified, initially at least, the importance of notifying all those whose privacy had potentially been invaded. 8.182 DCS Williams prepared a report entitled Options for Dealing with the potential victims issue.567 It is undated, but it is apparent from the content that it was drafted after the MPS received the request issued under the Freedom of Information Act but before the response which was dated 29 March 2010.568 DCS Williams made reference to the fact that DI Maberly had examined the 91 individuals whose names, mobile phone numbers and pin codes appeared in the papers seized from Mr Mulcaire and identified 13 people who: will not have been contacted by us and potentially the service providers and from the billing data provided as part of the original investigation, there are calls that are greater than 10 seconds (i.e. enough to enter the voicemail and listen to any message left as per the criteria used for the trial) Albeit not proved at an evidential level that interception has taken place, if the data is correct then there is a case for saying that for these individuals the possession of their name/mobile/pin has probably gone beyond more than merely preparatory and therefore there is suspicion that some form of phone tapping may have taken place. The following are options for informing them. Option 1 Police try to contact these people using the mobile numbers listed by Mulcaire and tell them that they fall into this category.
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John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-102.pdf John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-9.pdf 568 John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-19.pdf
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If we did this I would suggest we are quite firm on saying that we are not investigating the case, we are simply carrying out John Yates promise to inform people and if they have any concerns to contact their service provider. If we cannot contact them, because the phone is now out of use or has moved on to someone else then that would be the end of the process on the basis that we have been diligent, reasonable and sensible, and taken all proper steps. Issues to consider: This case is now nearly 4 years old, we are not carrying out an investigation and all the time we are spending public money on something that is not making anyone safer. At best we would be handing someone an opportunity to make personal gain through the civil courts which does not assist the wider public good. It probably would [be] possible to undertake further enquiries beyond ringing the phone numbers to try to contact those individuals. A view might be that some of the people are well known and it would have been easy to make contact. However, it might not be as easy as it seems, because we could be limited in terms of our full range of research methods as this is not an investigation and that could delay notification in some instances. Equally the more lengths we go to [to] contact individuals, potentially through other people, we risk breaching their anonymity around this case, again for no great gain. Where is the balance of reasonableness? For some of the 13 we are not sure who they are/their relevance in terms of known individuals. This is something that could be done immediately, before the Nick Davies FOIA letter goes out. Option 2 We approach the service providers directly and/or through Jack Wraith (who originally coordinated much of the contact/press lines with the service providers) and supply them with details of these last few people and ask them to clarify whether or not they have any concerns and make contact with the customer. Issues to consider: This would share the responsibility for determining who is a victim with the service providers as it was the weaknesses in their system that has caused all this work for us and in theory if they had any concerns back in 2006 they should have contacted their customers. This would take an unknown time and it is important to send out the Nick Davies FOIA this week. Option 3 We could complete Option 1 immediately and then consider pursuing the remainder through option 2. If the combination of both did not make contact then that would be deemed reasonable and diligent. The paper did not reach a conclusion as to which option should be selected. 8.183 It is not clear whether any further victims were informed following this paper being written, but it does indicate a clear lack of enthusiasm for informing any further potential victims, despite the undertaking given by Mr Yates in July the previous year. It appears to have been considered to be a time consuming and expensive exercise for no real gain. There were to be no further charges and one of the purposes of informing potential victims was to enable
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them to take steps, if so advised, to seek whatever redress they saw fit: the enforcement of privacy rights in the civil courts, therefore, did not appear to register with the police as a worthwhile outcome. In the circumstances, the lack of appetite for ensuring that all potential victims were informed was a misjudgement. 8.184 It was noted in the minutes of a Gold Group meeting on 10 September 2010 that DCS Williams was to provide a brief on the victim strategy to date. At a further meeting on 17 September 2010 the approach for dealing with potential new victims was discussed. It was recorded that a strategy for new victims was being devised and that the proposed course was to write to each prospective victim and ask them to approach their service provider to see if they held any information to support their suspicion.569 There was also an action point requiring DCS Williams to provide details to JY of notifications to potential victims. 8.185 In October 2010, Nick Davies reported that he had contacted the mobile phone service providers and ascertained that not all the victims had been contacted. The MPS began asking the service providers, in terms, which victims they had contacted and asking them to notify those not yet contacted. It is remarkable that this had still not been done, particularly given the earlier correspondence from the phone companies which indicated that O2 had notified customers but only at their own instigation and that Orange and Vodafone had not notified any customers. The minutes of a Gold Group meeting held on 21 October 2010570 recorded that DCS Williams had completed the previous action that he provide details to Mr Yates of notifications to potential victims and that there was an on-going action involving liaison by DCS Williams with the telephone companies to establish which victims they had informed and cross-compare them with the list compiled by the MPS. The action continued: If victims remain outstanding consideration of joint letter (MPS and telephone companies) to inform them accordingly. 8.186 It was following this meeting that DCS Williams wrote to O2, Everything Everywhere (formerly Orange) and Vodafone asking them whether those who they (the phone companies) had identified as potential victims during the 2005 to 2006 investigation had been contacted.571 He asked them, if they had not informed those potential victims, to make arrangements to bring to their attention the information that suggested they might have been victims. He also asked them to provide those customers with the MPS single point of contact. It is noteworthy that, even in this letter, DCS Williams was not verifying whether the original victim notification strategy had been implemented because that would have required him to ask whether the phone companies had completed the two stages: that is to say, they had both identified all customers whose voicemail boxes had been dialled by the suspect numbers and then notified those customers. 8.187 On 2 November 2010, Orange responded stating that no Orange customers had been contacted and that at no point during the investigation, or subsequently, had the MPS asked Orange or T-Mobile to contact any potential victims.572 The letter also stated: Orange assisted the investigation by providing a list of mobile numbers that had been called by a set of telephone numbers supplied to us by the MPS. Orange has no knowledge if those Orange mobiles were being called legitimately or with the intention of attempting to access their voicemail without authorisation. This was part of the police investigation and for the MPS to identify.
569 570
John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-29.pdf John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-B.pdf 571 John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-C.pdf 572 pp1-2, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-D2.pdf
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8.188 On 12 November 2010, O2 responded by saying:573 I can confirm that the O2 customers identified in 2006 by us as potential victims of voicemail interception were contacted at the time and given advice 8.189 Finally, on 22 November 2010, Vodafone dealt with the enquiry in the following terms:574 I am surprised that you say that you thought at the time of the investigation that all of the people potentially identified as being victims had been contacted by Service Providers, including Vodafone. Whilst we were able to furnish the police with information and data requested, it is not for Vodafone to determine who is a potential victim in a police led investigation This is something for the police to establish and it is for the police to take such steps to inform potential victims of crime as they deem appropriate, which I accept could have included asking Vodafone to contact a given list of customers A search of our files in relation to the matter has not revealed any request from your officers that we do otherwise.
8.190 The police thereafter identified that in fact 58 people out of the list of 91 names with PIN numbers associated had not yet been contacted. 8.191 As regards this failure of this second attempt to ensure that all potential victims had been informed, Mr Yates said that the exercise had been conducted with the very best intentions but that it was fairly torturous.575 Mr Yates accepted responsibility for its failure and explained it as follows:576 the day-to-day management of the exercise to place all documentation on the Holmes computer was not at the level I expected or that was required. This resulted in some material not being placed on the system which resulted in incomplete or incorrect responses to a number of people who were affected. This is a matter of great personal regret. 8.192 It should be noted, however, that the process of scanning the documents in order to create a searchable database was not implemented to assist in positively identifying individuals who had not been informed but who should have been; rather it was to respond to individual requests for information from people who wanted confirmation whether or not they were potential victims. I find that the MPS (and, in particular, Mr Yates, DCS Williams and DCS Surtees) failed to take effective steps, at any time before November 2010, to ensure that those potential victims who had not been informed were informed as soon as practicable. They failed even to realise that the victim notification strategy had failed or the extent of its failure until Orange and Vodafone spelled out in terms that they had not notified their customers, nor been asked to do so. These failings on the part of the police are difficult to explain. The most likely explanation in my judgment is that the officers concerned did not look beyond the assumption that it had worked, at least substantially. Once more, however, there is no evidential basis for inferring that the police approach was influenced in any way by relationships with NI.
p3, ibid p4, ibid 575 p88, lines 18-24, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 576 p38, para 122, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Yates.pdf
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8.193 It is worthwhile briefly to revisit the failure to identify that Lord Prescott was a potential victim. By letter dated 15 December 2009, he was eventually informed by the Directorate of Legal Services at the MPS that he was a person of interest to Mr Mulcaire in that there was a piece of paper containing the words John Prescott and Hull, and two self-billing tax invoices dated 7 and 21 May 2006, addressed to News International Supply Company Limited and containing the words Story Other Prescott Assist TXT and Story Other Prescott Assist TXT: Urgent.577 He was not, however, alerted to the more concerning references to his adviser, her phone numbers and her pass codes, which had been discovered in the short space of time after Mr Mulcaires arrest but before his interview. Mr Yates attributed the failure to indexing problems on the HOLMES database:578 I think what happened, and I say and Ive absolutely stated this in my statement and accepted it, that there was an indexing issue around the name John Prescott being linked to his I think it was his adviser, whose name I would never have known or could never I dont think anyone could have made the link, to be honest 8.194 This is not, however, the complete answer. In his evidence, Mr Yates stressed with some force that he checked on a number of occasions whether there was evidence that Lord Prescott had been a victim and that he always received the same answer, upon which he understandably relied579. He emphasised:580 I cannot tell you the amount of times I checked and sought further and better particulars about the possibility that Mr Prescotts phone had been interfered with. It would be literally scores over the following months ... He continued:581 Because I was so concerned, the idea of misleading the Deputy Prime Minister is not something Id relish and I was absolutely desperate to get to the bottom if there was something there. 8.195 DCS Williams has said that he briefed Mr Yates to the best of his ability; that he does not believe that all the material came to light until it had been scanned onto the HOLMES system some months later; and that he ensured that he showed Mr Yates all the material as it became available, including references to Tracey Temple. For the reasons explained above, I make no finding as to precisely what was brought to the attention of Mr Yates but, to say the very least, it is disappointing that what was inferred by the interviewing detectives within hours of the material being seized was not more clearly communicated to Mr Yates as he was being pressed by the Deputy Prime Minister.
The PCC response

8.196 Although this will be discussed later in this Report, as part of this narrative, it is worth including the response of the PCC. On 9 July 2009 the following statement was issued:
R (Bryant, Montague, Paddick and Prescott) v Commissioner of Police of the Metropolis [2011] EWHC 1314 (Admin) p68, lines 5-10, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 579 This is probably because DCS Williams did not consider that the possible targeting of Lord Prescotts staff constituted sufficient indication that he was a potential victim although it is difficult to understand why he would reach that conclusion because the link to Lord Prescotts staff had been made: para 8.89 above. 580 p66, lines 7-11, ibid 581 p69, lines 9-12, ibid
578 577
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The PCC has previously made clear that it finds the practice of phone message tapping deplorable. Any suggestion that further transgressions have occurred since its report was published in 2007 will be investigated without delay. In the meantime, the PCC is contacting the Guardian newspaper and Information Commissioner for any further specific information in relation to the claims, published today about the older cases, which suggest the Commission has been misled at any stage of its inquiries into these matters. 8.197 The PCC was concerned about two issues: whether it had been misled during its 2007 inquiry and whether its recommendations to the industry to help prevent any repetition of the criminal activity had failed. It launched a further investigation, taking evidence from the NoTW, the Guardian and the Information Commissioners Office.582 8.198 On 27 July 2009 the PCC wrote to Mr Myler asking a number of questions, including the following:583 Does it remain your position that the illegal behaviour of Clive Goodman was a rogue exception and that no other journalists or executives of the newspaper were aware of the practice of phone message tapping by anyone employed by the paper? 8.199 In his letter of response dated 5 August 2009 Mr Myler stated that the allegations in the Guardian were not just unsubstantiated and irresponsible, they were wholly false.584 In response to the particular question quoted in the paragraph above he said:585 Our internal enquiries have found no evidence of involvement by News of the World staff other than Clive Goodman in phone message interception beyond the e-mail transcript which emerged in April 2008 during the Gordon Taylor litigation and which has since been revealed in the original Guardian report. That email was dated June 29 2005 and consisted of a transcript of voicemails from the phone of Gordon Taylor and another person which had apparently been recorded by Glenn Mulcaire. The email and transcript were created by a junior reporter (who has since left the newspaper). When questioned after the email was supplied to us by Gordon Taylors lawyers in April 2008, the junior reporter accepted that he had created the relevant email document but had no recollection of it beyond that. Since by the end of June 2005 he had been a reporter for only a week or so (having been promoted off the floor where he had been a messenger) and since the first months of his reporting career consisted largely of transcribing tapes for other people, his lack of recollection when questioned three years later is perhaps understandable. Email searches of relevant people failed to show any trace of the email being sent to or received by any other News of the World staff member. Those who might have been connected to the relevant story denied ever having seen or knowing about the relevant email and no evidence has been found which contradicts these assertions. 8.200 Mr Myler was asked during his evidence whether his internal enquiries had in fact demonstrated that the allegation made by the Guardian that there had been hacking into
582 583
para 5.1, PCC 2009 hacking report , http://www.pcc.org.uk/news/index.html?article=NjAyOA http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA-V15.pdf 584 para 9.2, PCC 2009 hacking report, http://www.pcc.org.uk/news/index.html?article=NjAyOA 585 ibid
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thousands of mobile phones was unsubstantiated and irresponsible. He was asked to put to one side what the police might or might not have found. Mr Myler responded as follows:586 I didnt have any direct information that our internal enquiries had gone to that point, and as I said earlier, one of the things that weighed heavily with me when I came in was the fact that the police hadnt interviewed anybody else other than Goodman in their enquiries. 8.201 To the suggestion that, when making this assertion to the PCC, he had not relied on any information that he had obtained through internal enquiries Mr Myler said: Other than the appeal that Mr Goodman I had to conduct with the head of human resources and the allegations that he made, and then talking to those individuals who he made allegations against. There was no evidence provided to me to support what the Guardian had said at all. 8.202 It was put to Mr Myler that his evidence had been that after June 2008 he no longer believed the single rogue reporter defence (on the basis that it was untenable after the for Neville email was discovered) but that in this letter to the PCC he was effectively stating that there was no evidence which went beyond Mr Goodman and therefore that the single rogue reporter defence was true. He said: Well, the rogue reporter defence failed to hold once the for Neville email was discovered. And I made that clear to the Select Committee I think in July of 2009, I think it was, about its significance But yes, and that clearly, perhaps, was an error, because this letter was dated 5 August and Id appeared before the Select Committee in the month previously. So Im sure that the PCC were aware of that, if that clearly that was following my evidence to the Select Committee, which was very heavily covered. 8.203 I am afraid that I find this response was unconvincing. It is not and cannot be acceptable for Mr Myler to rely on the evidence he gave to the Select Committee to support the proposition that the PCC would not have been misled by an entirely contradictory assertion that was contained in his response to them. On any showing, what he said to the PCC was neither full nor frank. 8.204 In addition, Mr Myler told the PCC that the process of internal investigation had been rigorous and that News Group had instructed Burton Copeland, an independent firm of solicitors, to deal with further police inquiries after the arrests of Mr Mulcaire and Mr Goodman. He claimed that Burton Copeland were given: 587 every financial document which could possibly be relevant to the papers dealings with Mulcaire, and they confirmed that they could find no evidence from these documents or their other enquiries which suggested complicity by the News of the World or other members of its staff beyond Clive Goodman in criminal activities. 8.205 This is the most that the Inquiry has been told about the work carried out by Burton Copeland given that NI has not waived legal professional privilege. As referred to588 there is no available information about what documents were given to Burton Copeland (beyond certain limited
p48, lines 5-10, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-15-December-20111.pdf 587 para 9.2, PCC 2009 hacking report, http://www.pcc.org.uk/news/index.html?article=NjAyOA 588 para 3.40 above
586
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financial documentation); what sources of information they were able to access; the precise terms of their instruction; what investigations they made; or what, if any, caveats surrounded their conclusions. As a result, the reliance by Mr Myler on their work is hardly persuasive. 8.206 Among its conclusions, the PCC found as follows:589 While people may speculate about the email referencing Neville, the Taylor settlement, and the termination payments to Mulcaire and Goodman, the PCC can only deal with the facts that are available rather than make assumptions. The PCC has seen no new evidence to suggest that the practice of phone message tapping was undertaken by others beyond Goodman and Mulcaire, or evidence that News of the World executives knew about Goodman and Mulcaires activities. It follows that there is nothing to suggest that the PCC was materially misled during its 2007 inquiry.
The CMS Committee reaction
8.207 The CMS Committee considered that the Guardian article cast doubt on the evidence they had been given by NI executives in 2007 and so reopened the hearings in the inquiry (launched in November 2008) into press standards, privacy and libel; the purpose was to examine whether there was any evidence of a widespread conspiracy at the NoTW. The Committee heard evidence from representatives of the Guardian, the PCC, the Information Commissioner and the MPS as well as from then current and former NI executives. It also received written evidence from the DPP and Mark Lewis, the solicitor who acted for Gordon Taylor. The NI witnesses comprised Tom Crone, Colin Myler, Andy Coulson, Stuart Kuttner and Les Hinton. The Committee also invited Glenn Mulcaire, Clive Goodman, Neville Thurlbeck and Rebecca Brooks to give evidence but all declined (save for Mr Thurlbeck who was prepared to give evidence but only in private). The Committee decided not to use its powers of compulsion for reasons of time and practicality.590 8.208 In giving evidence to the Committee, NI witnesses continued to assert that Mr Goodman had acted alone. Mr Hinton told the Committee:591 There was never any evidence delivered to me that suggested that the conduct of Clive Goodman spread beyond him. 8.209 In response to questions suggesting that termination payments to Mr Mulcaire and Mr Goodman could be interpreted as an attempt to prevent them speaking out about practices at the newspaper, Mr Hinton said he had authorised the payments on the advice of specialist employment lawyers. 8.210 Mr Coulson told the Committee that during his time as editor he never condoned the use of phone hacking and that he did not have any recollection of incidences where phone hacking took place.592 He said: 593 What we had with the Clive Goodman case was a reporter who deceived the managing editors office and, in turn, deceived me. I have thought long and hard about this (I did when I left): what could I have done to have stopped this from happening? But if
para 13.2, PCC 2009 hacking report, ibid p97, para 407, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-37-Culture-Media-and-SportSelect-Committee-Press-standards-Privacy-and-Libel-Rport-part-1.pdf 591 Q2106, CMS Report on Press Standards Privacy and Libel 592 Q1550, ibid 593 Q1554, ibid
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a rogue reporter decides to behave in that fashion I am not sure that there is an awful lot more I could have done. When asked whether he commissioned an enquiry when he found out about the arrests, Mr Coulson said:594 Yes. Obviously we wanted to know internally very quickly what the hell had gone on. Then I brought in Burton Copeland, an independent firm of solicitors to carry out an investigation. We opened up the files as much as we could. There was nothing that they asked for that they were not given. 8.211 Mr Coulson did concede that Burton Copeland were tasked with the primary purpose, I have to say, of trying to find out what happened in relation to Clive.595 8.212 On the remit of the internal investigations Mr Myler said:596 My recollection was that a very thorough investigation took place where there was a review of everything from how cash payments were processed When asked about the width of the internal enquiry Mr Crone gave the following account:597 By the time I got back, which must have been August 15, Burton Copeland were in the office virtually every day or in contact with the office every day. My understanding of their remit was that they were brought in to go over everything and find out what had gone on, to liaise with the police What I think was being enquired into was what had gone on leading to the arrests; what, in the relationship with Mulcaire, did we have to worry about. Burton Copeland came in; they were given absolutely freerange to ask whatever they wanted to ask. They did risk accounts and they have got four lever-arch files of payment records, everything to do with Mulcaire, and there is no evidence of anything going beyond in terms of knowledge into other activities. 8.213 Again, these assertions cannot be tested because legal professional privilege has not been waived in relation to the instructions given to Burton Copeland, the material provided, or, indeed, any aspect of the work done. I do no more than record what Mr Crone said. 8.214 The Committee concluded, in their report published on 24 February 2010, that:598 Evidence we have seen makes it inconceivable that no-one else at the News of the World, bar Clive Goodman, knew about the phone-hacking We cannot believe that the newspapers newsroom was so out of control for this to be the case. 8.215 The Committee also noted that the newspapers enquiries had been far from full or vigorous, as it and the PCC had been assured. It was struck by the collective amnesia afflicting witnesses from the News of the World.599 It concluded that:600
Q1719, ibid Q1558, ibid 596 Q1394, ibid 597 Qs 1395-1396, ibid 598 p103, para 440, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-37-Culture-Media-andSport-Select-Commitee-Press-standards-Privacy-and-Libel-Rport-part-1.pdf 599 p103, para 442, ibid 600 p1114, para 493, ibid
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a culture undoubtedly did exist it the newsroom of the News of the World and other newspapers at the time which at best turned a blind eye to illegal activities such as phone-hacking and blagging and at worst actively condoned it 8.216 The determination of NI to maintain a line that the editor and the legal director believed was not true in the face of two investigations by the CMS Committee and two investigations by the PCC is extraordinary and, at the very least, a demonstration of loyalty to the NoTW and its reputation which says a great deal about the culture of the paper (to say nothing of its practices and its approach to ethical propriety). In fact, the NoTW maintained the one rogue reporter defence until the Spring of 2011 when three NoTW journalists were arrested as part of Operation Weeting. 8.217 The Committee also considered the actions of the MPS. On 2 September 2009, Mr Yates and DCS Williams gave evidence to the CMS Committee. Mr Yates told the Committee that the approach during the investigation had been that an offence under s1 RIPA 2000 was committed only where the messages intercepted had not previously been listened to by the intended recipient. He said:601
Our job, as ever, is to follow the evidence and to make considered decisions based upon our experience which ensures limited resources are used both wisely and effectively and, supported by senior counsel, including the DPP, the collective belief is that there were then and there remain now insufficient grounds or evidence to arrest or interview anyone else and, as I have said already, no additional evidence has come to light since. 8.218 Mr Yates described his July 2009 review in the following terms:602 I considered the approach adopted by the prosecution team in their papers, what were they actually focused on, and it was those eight cases. I considered the amount of complexities and challenges around the evidence then and what evidence would be available now, particular in relation to the availability of the data. I considered the level of disclosure and who would review the material. In this case senior counsel had reviewed the material. I considered how the case was opened after the guilty pleas. I considered whether there was anything new in the Guardian articles in terms of additional evidence, and I considered finally our approach to the victims, how they were managed and dealt with and the impact of further inquiries, if they had been necessary, on them, and I came to the view, and I appreciate you all thought it was rather quick, that there was no new evidence in this case. It was a conflation of three old stories. 8.219 He said of the Guardian article that: there is essentially nothing new in the story other than to place in the public domain additional material which had already been considered by both the police investigation into Goodman and Mulcaire and by the CPS and the prosecution team. There was certainly no new evidence and, in spite of a huge amount of publicity and our own request of the Guardian and others to submit to us any additional evidence, nothing has been forthcoming since.
pEv359, Q1890, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-38-Culture-Media-andSport-Select-Commitee-report-part-2.pdf 602 ppEv361-362, Q1913, ibid
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8.220 A key conclusion of the Committee was that the police had been wrong not to investigate further the contract or the for Neville email and that the reasons given on behalf of the MPS were not adequate:603 In 2006 the Metropolitan Police made a considered choice, based on available resources, not to investigate either the holding contract between Greg Miskiw and Glenn Mulcaire, or the for Neville email. We have been told that choice was endorsed by the CPS. Nevertheless it is our view that the decision was a wrong one. The email was a strong indication both of additional lawbreaking and of the possible involvement of others. These matters merited thorough police investigation, and the first steps to be taken seem to us to have been obvious. The Metropolitan Polices reasons for not doing so seem to us to be inadequate. 8.221 As regard the PCC, the Committee found as follows:604 We accept that in 2007 the PCC acted in good faith to follow up the implications of the convictions of Clive Goodman and Glenn Mulcaire. The Guardians fresh revelations in July 2009, however, provided good reason for the PCC to be more assertive in its enquiries, rather than accepting submissions from the News of the World once again at face value. This Committee has not done so and we find the conclusions in the PCCs November report simplistic and surprising. It has certainly not fully, or forensically, considered all the evidence to this inquiry.
9. September 2010: The New York Times

9.1 On 1 September 2010 the New York Times published an article entitled Tabloid Hack Attack on Royals, and Beyond.605 The article reported that, in the summer of 2010, five people had issued claims alleging that the NoTW had been intercepting their voicemail messages; it also referred to the judicial review of the handling by the MPS of the investigation. The article claimed that: The litigation is beginning to expose just how far the hacking went, something that Scotland Yard did not do. In fact, an examination based on police records, court documents and interviews with investigators and reporters show that Britains revered police agency failed to pursue leads suggesting that one of the countrys most powerful newspapers was routinely listening in on its citizens. The police had seized files from Mulcaires home in 2006 that contained several thousand mobile phone numbers of potential hacking victims and 91 mobile phone PIN codes. Scotland Yard even had a recording of Mulcaire walking one journalist who may have worked at yet another tabloid step by step through the hacking of a soccer officials voice mail, according to a copy of the tape. But Scotland Yard focused almost exclusively on the royals case, which culminated with the imprisonment of Mulcaire and Goodman. When police officials presented evidence to prosecutors, they didnt discuss crucial clues that the two men may not have been alone in hacking the voice mail messages of story targets. 9.2
603
The article also reported that several investigators had said in interviews that the MPS was reluctant to conduct a wider inquiry in part because of its close relationship with the NoTW.
p108, para, 467, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-37-Culture-Media-andSport-Select-Commitee-Press-standards-Privacy-and-Libel-Rport-part-1.pdf 604 p109, para 472, ibid 605 John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-21.pdf
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It reported that during interviews with more than a dozen reporters and editors at the NoTW claims were made that voicemail interception was an industry-wide thing, that Every hack on every newspaper knew this was done and that it was pervasive at the NoTW. The article alleged that illicit methods of obtaining confidential information were known as the dark arts. The article also made the following allegations: (a) (b) That in the documents seized from Mr Mulcaire there were at least three names of other NoTW journalists. That the MPS had a symbiotic relationship with the NoTW: The police sometimes built high-profile cases out of the papers exclusives, and News of the World reciprocated with fawning stories of arrests. The MPS detectives had faced pressure from within their own organisation and were reminded of the long-term relationship with News International. The MPS did not discuss certain evidence with the CPS, including the notes which suggested the involvement of other reporters. By sitting on the evidence for so long, the MPS had made it impossible to get information from phone companies, which do not keep records indefinitely. By only notifying a small proportion of those whose phones may have been illegally accessed, the MPS had effectively shielded the NoTW from a large number of civil actions.
(c) (d) (e)
E
9.3
(f)
On 3 September 2010 one of the reporters quoted in the New York Times article, Sean Hoare, was interviewed on BBC Radio 4. He repeated the expression the dark arts and said that phone hacking was endemic in the industry. He made clear allegations which, in order to avoid prejudice to the ongoing investigation, are not repeated here. Given the resurgence of the allegations and the additional detail provided by the New York Times and Mr Hoare, Mr Yates should have reflected carefully on the exercise that he conducted in 2009 and reviewed, in more depth, what evidence was gathered during Operation Caryatid and what it might show. Once again, however, he failed to engage with the substance of what was alleged. He did not, as he should have done, revert to DCS Williams and DCS Surtees and ask them for full details of what the crucial clues or leads might be that indicated that Mr Goodman and Mr Mulcaire were not acting alone or ask them to explain fully what indications there might be that the three named journalists had been involved in the conspiracy. It is quite clear that having made the dogmatic and over-hasty decision on 9 July 2009, he then failed to assess anything that might conceivably challenge the correctness of his initial decision with anything approaching an open mind. It remained the case that Mr Yates was not prepared to entertain the possibility that there was anything in the vast quantity of documentation held by the police, that had not been analysed, that could itself generate lines of enquiry; he was interested only in the question of whether the New York Times could itself produce evidence. On 5 September 2010 Mr Yates issued a press statement which included the following:606 The New York Times contacted the MPS about their investigation. Our stance remains as before. We have repeatedly asked them for any new material that they have for us to consider. We were never made aware of the material from Sean Hoare before the articles publication. We have sought additional information from them and will
9.4
9.5
606
John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-22.pdf
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consider this material, along with Sean Hoares recent BBC Radio interview, and will consult the CPS on how best to progress it. 9.6 Mr Yates also took the opportunity to re-state the lack of evidence that Lord Prescott had been a victim: Separately, we are aware of the current claims in the media from, amongst others, Lord Prescott about his view that his phone was hacked. There remains to this day no evidence that his phone was hacked by either Mulcaire or Goodman. This is a matter of public record. 9.7 On 6 September 2010 Mr Yates chaired a Gold Group meeting. Neither DCS Williams nor DCS Surtees were invited to the meeting. The terms of reference for the Gold Group607 were stated to be: To provide ACPO oversight of the various MPS strands relating to phone hacking. The strands were listed and included New information in the public domain by ex News of the World employees, which relates to Andy Coulson, Sean Hoare, Sharon Marshall, Ross Hall, Brendan Montague and Paul McMullan and New allegations or new material as yet unknown. The summary of the minutes of the meeting on 6 September 2010 stated that:608 JY explained that the purpose of the actions required was to seek clarity as to whether there was any new evidence amongst the recent media reporting before making any further decision. This is not, at this stage, a further investigation. DSupt Haydon (as ACSOs former Staff Officer) will lead this separate and independent effort to clarify the above. 9.8 Action points required Detective Superintendent Haydon (who had been appointed SIO) to review the transcripts of different statements in the public domain, liaise with the CPS to discuss any new material that might come to light and consider interviewing Sharon Marshall about the statements made in her book. There was also an action point for Mr Yates to consult the DPP or an appropriate deputy. Late in the evening of 6 September 2010, Mr Yates made contact with the CPS. According to the Chief Crown Prosecutor for London, to whom he spoke, Mr Yates said that he wanted to update Mr Starmer and let him know that he (Mr Yates) did not intend to reopen the investigation but merely to clarify what had been said in the New York Times article by inviting the journalists to provide their material and by interviewing Sean Hoare; thereafter, they might then seek the advice of the CPS. On 8 September 2010 D/Supt Haydon sent an email to the CPS setting out the action the MPS was proposing to take following the article. In his email he said that he had been asked:609 to clarify the new information in the public domain (since 1st September 2010) to establish if there is any new evidence in the phone hacking case I wish to make it clear that I am not reinvestigating the original case so knowledge of the case and retrieving case papers is not necessary. 9.10 On 9 September 2010, Mr Yates convened a Gold Group meeting to agree current actions. D/Supt Haydon was directed to define the terms of reference for the work being undertaken and extend the remit to cover additional individuals who were coming forward.610 The exercise, although stated not to be an investigation, was subsequently given the name Operation Varec and the following terms of reference:611
9.9
607
John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-23.pdf John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-24.pdf 609 Not published 610 John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-26.pdf 611 Not published
608
403
To assess whether allegations being made in the media since 1st September 2010 provided any new evidence of criminal offences, namely unlawful interception of communications, at News of the World, in 2005/2006. 9.11 At a meeting of the Gold Group on 10 September 2010, it was noted that the new witnesses, who had been identified by the New York Times article, would need to be approached as part of Operation Varec. D/Supt Haydon informed those present that the New York Times had been asked for their material.612 At around this time, D/Supt Haydon asked a HOLMES supervisor to carry out a search on the HOLMES database for evidence that Lord Prescott had been targeted by Mr Mulcaire. In an email dated 10 September 2010,613 he was informed by that supervisor that the name John Prescott appeared on p183 of seven notepads seized from Mr Mulcaire and that word PREZA appeared once in handwritten notes. The references to JLP reset PIN 3333 and JLP were also brought to his attention but it was suggested to him that, given the surrounding information, they related to Jamie Lowther-Pinkerton. He was also informed that there were no results for searches on popular media nick-names for Lord Prescott. It appears that Lord Prescott was not given this information, but it is right to repeat that, in December 2009, he had been informed that his name and other details appeared in the Mulcaire documents. Reverting to the position of the CPS, following the publication of the New York Times article, Mr Starmer quickly took stock of what action he needed to take. Mr Starmer explained that:614 Whilst respecting the views of David Perry QC and Louis Mably, I had in fact had concerns for some time about the emphatic view of the construction of sections 1 and 2 of RIPA that had been articulated by Mr Perry QC in 2009 and adopted by me in my letters and evidence to the CMS committee. I therefore decided that it would be sensible to look again at the matter, particularly since it appeared that the CPS might be required to give the MPS advice in relation to the allegations in the New York Times. 9.14 In the result, Mr Starmer decided to commission two written advices: the first was to be from original counsel, who would be asked to consider the original papers and give a definitive view of the approach taken to s1 of RIPA in 2006 to 2007; the second advice was sought from fresh counsel, Mr Mark Heywood QC, who had had no previous connection to the case. The DPP received the written advice from Mr Perry on 14 September 2010.615 Having this time had the opportunity to consider the papers, Mr Perry concluded that for purposes of the 2006 prosecution it had not in fact been necessary to resolve the question of whether or not s1 of RIPA required proof that the interception had taken place before the intended recipient had accessed the message (given that Mr Mulcaire had pleaded guilty to the indictment). Having refreshed his memory from the papers, Mr Perry stated that the oral advice he gave in 2006 had been that the proper construction of RIPA was a difficult issue, with tenable arguments either way; and that a narrow approach to the construction of RIPA had not limited the scope of the police investigation. Upon receipt of this advice Mr Starmer was naturally concerned that this did not fully correspond with what he had been told in 2009, which itself had been the basis of his letters
9.12
9.13
9.15
9.16
612 613
John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-27.pdf John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-28.pdf 614 p37, para 125, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-KeirStarmer-QC.pdf 615 Not published
404
and evidence to the CMS committee. Mr Perry was therefore instructed to advise to whether the for Neville email should now be viewed in a different way in the light of his more recent advice. On 16 September 2010, Mr Perry provided a note616 in which he confirmed that the construction of RIPA set out in his advice written 18 months earlier had been taken from the note drafted by DCS Williams. He also made it clear that his conclusions in relation to the for Neville email remained unchanged. 9.17 On 17 September 2010, the DPP received written advice from Mr Heywood.617 In a sustained and sophisticated analysis of the competing legal arguments, Mr Heywood inclined to the view that the broader construction of RIPA was to be preferred, having regard to the purpose underpinning the legislation and additional materials sent to him by First Parliamentary Counsel. Mr Heywood added that, in any event, even if the narrow interpretation should turn out to be correct, it would make no difference to investigators, because the inchoate offences of conspiracy or attempt would be unaffected by a narrow construction of the legislation. In his subsequent dealings with Parliamentary Select Committees, Mr Starmer no longer adhered to a narrow interpretation of RIPA: in essence, he indicated that the approach he intended to adopt would be to advise the police and CPS prosecutors to proceed on the assumption that a court might adopt a wide interpretation of sections 1 and 2 of RIPA. On 1 October 2010, D/Supt Haydon and another officer had a meeting with Simon Clements and Asker Hussain of the CPS. D/Supt Haydon provided a detailed update on the progress of Operation Varec.618 On 4 October 2010, The Dispatches programme, Tabloids, Tories and Telephone Hacking, reported allegations that the NoTW had been involved in the unlawful interception of voicemail messages. Following this programme, D/Supt Haydon wrote to Colin Myler asking him to provide relevant material including transcripts of telephone calls or emails that may be related to unlawful interception and a full list of the names of employees who worked on the Features or News desks for the period 2005 to 2006.619 Mr Myler replied on 13 October 2010, stating:620 I am aware of the allegations made in the Dispatches programme, concerning telephone voicemail accessing in 2005-2006. However, I am as sure as I can be that since I became editor of the News of the World in January 2007 neither the newspaper nor its staff have collected or obtained information by means of unlawful interception. Similarly, I am as sure as I can be that neither the newspaper nor its staff are in possession of such material whenever it may have originally been collected. 9.21 He indicated that they were putting together a list of names which they would forward to him. That list was emailed by Tom Crone to the MPS.621 D/Supt Haydon then drafted a letter which Mr Crone circulated on his behalf, on 22 October 2010, to 19 members of staff.622 In that letter D/Supt Haydon explained that he was considering any new material that had come to light as a result of the Dispatches programme and said:623
9.18
9.19
9.20
Not published Not published 618 John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-30.pdf 619 p1, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-31.pdf 620 p3, ibid 621 pp1-4, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-A2.pdf 622 p5, ibid 623 p6, ibid
617
616
405
I understand you were employed on either the News or Features desks during the relevant period 2005/06. If you feel you are able to assist, and I stress this is in relation to the issue of phone hacking only, then I request you make contact with me on the contact details provided in this letter. 9.22 Meanwhile, at the CPS, it appears that Mr Starmer was frustrated that the matter was not going to be investigated. Mr Clements recorded in a note of a meeting on 19 October 2010 that Mr Starmer said: No one wants to reopen the investigation.624 Mr Starmer explained in evidence that:625 I honestly cant remember what I said at that meeting but I obviously said something. Mr Clements does remember it and wrote it down at the time and thought I was frustrated because it appeared to me that others wouldnt reopen the investigation. Id had the meeting back in 2009 where a course of action I thought was reasonably sensible didnt look as if it was going to find favour, and Id been told in September 2010 that whatever else was going to happen, this was not going to be reinvestigated. I think if I was expressing any frustration, it was probably borne of these two things.
9.23
On 12 November 2010, D/Supt Haydon submitted to the CPS an Advice file, dated 10 November 2010, which was a formal request for advice on issues arising from Operation Varec, including whether there was evidence to justify or support a re-opening or re-investigation of Operation Caryatid and the prospects of prosecuting any individuals. He stressed in the document that his task had not been to re-open or re-investigate the cases of Mr Goodman and Mr Mulcaire, but noted that there were links and crossovers with the prosecution. He set out details of the four phases of the investigation (or scoping exercise). The first phase had been to ask the New York Times to provide any material in support of its article. The paper had refused the request, claiming journalistic privilege. It was also reported that: (a) (b) (c) The police interviewed Sean Hoare under caution in the hope that they could convert his claims and admissions into evidence, but he made no comment. The police interviewed Sharon Marshall, not under caution, but she did not disclose any new evidence. The police approached Paul McMullan, a former features journalist at the NoTW, on numerous occasions in order to interview him under caution, but he declined to cooperate. The police interviewed Brendan Montague, a freelance journalist, not under caution and more as a victim, but he did not disclose any new evidence. The police interviewed under caution Ross Hall, who had authored the for Neville email and that he had given an account of his employment at the NoTW as a runner in 2005/6 but made no disclosures relating to voicemail interception. The police interviewed Andy Coulson in the presence of his solicitor, who denied any involvement with or knowledge of phone hacking.
9.24
(d) (e)
(f) 9.25
D/Supt Haydon noted that there were no communications data that would support a criminal investigation or prosecution.
p40, lines 3-20, Keir Starmer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-4-April-2012.pdf 625 p41, lines 9-21, ibid
624
406
9.26
During phase two the police approached Mr Goodman and Mr Mulcaire but both declined to assist the investigation. Neville Thurlbeck was interviewed under caution. Mr Thurlbeck produced a pre-prepared statement and denied knowledge of ever receiving the for Neville email. He also denied any involvement in voicemail interception and refused to answer any further questions. Greg Miskiw was interviewed under caution. He produced a pre-prepared statement in which he outlined his dealings with Mr Mulcaire but refused to answer any further questions. Matt Driscoll was interviewed. He was employed at the NoTW as a sports reporter but was dismissed in 2007 for supposed inaccurate reporting. He said in interview that he knew that voicemail interception was used as a technique but never used the technique himself and that it was not one used on the sports desk where he was employed. The police also sent letters to three supervisors employed by the NoTW who had been named in an anonymous letter. The police did not receive any responses to the letters. During phase three, the police wrote to the Producer of the Dispatches programme Tabloid, Tories and Telephone hacking. In a letter to the MPS dated 22 October 2010, the Controller of legal and compliance for Channel 4 wrote: Having discussed the matter further with the producers who have direct dealings with the 13 individuals, they do not believe that any of the individuals would be prepared to assist your investigation. I also confirm that having spoken with the producers they do not have any additional evidence that was not included in the broadcast programme that could assist the MPS and that is not already in the public domain.
9.27
9.28
The MPS also wrote to the editor of the Guardian, the Daily Telegraph, the Independent and the NoTW seeking any new or additional material they held that could assist in the MPS investigation. No new material was forthcoming. Finally, phase four involved writing to 19 members of staff still employed by the NoTW (paragraph 9.21 above refers) to establish if any could assist or provide any information relating to voicemail interception. No response was received from any of them. D/Supt Haydon then set out the following under the heading Conclusion: 1. Has the current MPS investigation revealed any further evidence relating to unlawful interception of communications, namely mobile telephone voicemails, involving The News of the World? It is my view that there remains a vast amount of press and media coverage, claims and allegations but with no substantive evidence in support. There is some possible circumstantial evidence but in the absence of any communications data and any other supporting evidence, this cannot be progressed. I accept that the evidential position does not meet the threshold for a referral to the CPS but in view of the vast media, public and political scrutiny in this case and due to both the MPS and CPS involvement to date, I consider a referral is appropriate in order to agree a joint current and future position in this case
9.29
9.30
9.31
On 10 December 2010 Mr Clements advised on Operation Varec on behalf of the CPS.626 He concluded that the case did not pass the evidential stage of the test contained in the Code for Crown Prosecutors, namely that there must be sufficient evidence to establish that there is a realistic prospect of conviction. He added that he considered that the available evidence in fact fell well below the evidential threshold for prosecution. Given the on-going police investigation, it would be inappropriate for me to identify precisely what material had formed
626
John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-E.pdf
407
part of the papers submitted to the CPS or to consider any analysis of the underlying material. Mr Clements also stated in the advice document that: I have agreed with Detective Superintendent Haydon that in the future if any revelations come to the attention of the Metropolitan police that he considers could properly be said to constitute new and substantial evidence of offending that we will meet together as a panel and conduct a joint assessment of the material and decide whether further assessment or investigation is likely to provide evidence to support criminal proceedings. 9.32 9.33 The DPP announced the conclusions reached by Mr Clements in a press statement that day. Based on Operation Varec, Mr Yates has claimed that the issues raised by the New York Times article were properly scoped in collaboration with the CPS.627 I do not agree. What Mr Yates scoped was a consideration of the material that had been put in the public domain by the New York Times and the Dispatches programme which itself involved a number of requests and interviews; having regard to the circumstances, it is not surprising that these were unrevealing. What he did not do was go back to the original allegation both in the Guardian and the New York Times, namely, that there was information in the documents seized from Mr Mulcaire which incriminated others at the NoTW. This was the reason for the allegation that was so potentially damaging to the MPS that it was engaged in a cover up. The answer to this allegation was straightforward: without deciding to re-open Operation Caryatid, look at the material to find out if there is anything in it which bears out what has been alleged.
10. December 2010: The Guardian article and the aftermath

10.1 On 15 December 2010, the allegations were provided with a fresh impetus when the Guardian published allegations made by Sienna Miller in her civil claim against NGN and Mr Mulcaire. The article, entitled Phone hacking approved by top News of the World executive new files reported that Particulars of Claim filed by Ms Miller alleged that the interception of voicemail messages on phones belonging to members of the Royal Household: was part of a scheme commissioned by the [News of the World] and not simply the unauthorised work of its former royal correspondent, Clive Goodman, acting as a rogue reporter as it [had] previously claimed. The Particulars of Claim were based upon documents disclosed to her legal advisers by the MPS following a disclosure application to the High Court. The Guardian article alleged that one of the documents disclosed implied that Mr Mulcaire had been instructed to intercept voicemail messages received by Ms Miller and also by her mother, her publicist, one of her closest friends, as well as Jude Law, her former partner, and his personal assistant. The article also reported that: The document, which has been released to the Guardian by the high court, suggests that the hacking of the two actors was part of a wider scheme, hatched early in 2005, when Mulcaire agreed to use electronic intelligence and eavesdropping to supply the paper with daily transcripts of the messages of a list of named targets from the worlds of politics, royalty and entertainment.
627
10.2
p36, para 115, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Yates.pdf
408
The document is gravely embarrassing for Scotland Yard, which has held the information about the two actors in a large cache of evidence for more than four years and repeatedly failed to investigate it The new evidence implies that the targeting of the royal household, which led to the original police inquiry, was specifically commissioned by the paper. In or about January 2005 the News of the World agreed a scheme with Glenn Mulcaire whereby he would, on their behalf, obtain information on individuals relating to the following: political, royal and showbiz/entertainment; and that he would use electronic intelligence and eavesdropping in order to obtain this information. He also agreed to provide daily transcripts. 10.3 10.4 The article also alleged that the police had failed to interview four journalists who were implicated by the material already in police possession. On 6 January 2011, the Guardian asked the CPS a series of detailed questions about whether or not the CPS had been aware, in 2006, of the evidence that was emerging from the civil action brought by Ms Miller. Mr Starmer explained, frankly, that these were not easy questions to answer given that there was no one to hand within the CPS who had first-hand knowledge of the investigation and prosecution in 2006. Having said that, however, Mr Starmer was becoming increasingly concerned by the evidence emerging from the civil claim and he decided that the time had come for a much fuller exercise. At that stage, what he wanted was an examination of all material available at that time, whether in the possession of the police or the CPS, and for some further assistance to be given to him about what consideration was given to it at the time. He explained: 628 What then happened was that as I understood it, some of the information that was emerging from the Sienna Miller civil action I was told had in fact been amongst the unused material. Now, this was the second time this had occurred. The first time was in relation to the Neville email, and now it was happening again in relation to the Sienna Miller material. And Im afraid at that stage I thought nothing less than a root and branch review of all the material that we have and the police had is now going to satisfy me about this case. And thats why I indicated in fact to Tim Godwin, who I think was then Acting Commissioner, that I had for my part reached the view that we could no longer approach this on a piecemeal basis looking at bits of material and we really had to roll our sleeves up and look at everything. 10.5 In that context, a meeting took place on Friday 14 January 2011 attended by Mr Starmer, Mr Yates and various other officials and police officers. Mr Starmer opened the meeting by stating that in view of recent events the time may well have come to reconsider everything that is or was available thereby enabling the CPS, if asked, to give comprehensive answers to current and future questions. The immediate riposte of Mr Yates was to assert that if new evidence were available he would examine it but that he did not believe this to be the position. The following appeared in notes of the meeting:629 DH [a police officer]: Op Varec is the only new material in terms of G/M. There is nothing new all the stuff is on the system. JY: puts both organisations in difficult position: what did we do in 2009?
pp45-46, lines 16-8, Keir Starmer QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcriptof-Afternoon-Hearing-4-April-2012.pdf 629 Not published
628
409
DPP: looked at G/M and the decisions made and whether they were correct. This is a broader examination to go before panel (2006 and subsequent). 10.6 In answer to the question whether the mood of the meeting was all sweetness and light, Mr Starmer stated the following in evidence: 630 I was absolutely clear in my mind at the beginning of that meeting I was going to settle for nothing less than a full review of all this material unless somebody blocked me access to it, and I approached it in that way. To be fair to Mr Yates, who did not seek to block that approach, and in the end agreed to it, but I have to say but by then I had reached the stage where I really was not in the mood for being dissuaded from my then course of action, I am afraid. 10.7 Mr Starmer also said that Mr Yates had a number of concerns about how the review would be handled, but did not resist his proposal that there be a root and branch review.631 Mr Starmer highlighted that Mr Yates was keen that the MPS should request the review rather than having it imposed on them. They therefore agreed that Mr Yates would formally invite the DPP to conduct a review. After the meeting Mr Starmer decided that his Principal Legal Adviser, Ms Alison Levitt QC, should carry it out. The account given by Mr Yates of this meeting had a different emphasis, and suggested that he was, indeed, concerned about how matters had been dealt with and did not simply adopt a refrain that he would act if there were new evidence. He stated as follows in his witness statement:632 In early January 2011, my level of concern as to how matters had been dealt with to date caused me to formally request the DPP to undertake a review of all the material in police possession. This he agreed to do and he tasked Alison Levitt, QC to undertake this task on his behalf. 10.9 It should be noted that Mr Yates was not questioned about this meeting or asked if he agreed that he said that both organisations had been put in a difficult position, and if so, what he meant by it.
10.8
10.10 That same day Mr Yates wrote to the DPP in the following terms, acknowledging, apparently for the first time, the possibility that there might be evidence in the existing material which would warrant further investigation:633 We are both aware that there remain outstanding public, legal and political concerns. This is particularly so in relation to the various and recently reported high profile civil cases As a result, I consider it would be wise to invite you to further re-examine all the material collected in this matter. This would also enable you to advise me and assure yourself as to whether there is any existing material which could now form evidence in any future criminal prosecution relating to phone hacking.
p53, lines 2-10, Keir Starmer QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-4-April-2012.pdf 631 p45, para 151, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-KeirStarmer-QC.pdf 632 p36, para 117, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Yates.pdf 633 John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3B-G.pdf
630
410
10.11 Also on 14 January 2011 the CPS and the MPS issued a joint press statement to that effect.634 10.12 On 26 January 2011, NI provided the MPS with significant new information relating to allegations of voicemail interception at the NoTW in 2005 to 2006, which had apparently been discovered whilst NI was dealing with requests for disclosure in the civil actions. NI had found three key emails implicating an employee other than Mr Goodman. That same day the MPS announced that it was re-opening its investigation into allegations of unlawful voicemail interception at the NoTW. Mr Yates claimed that it was this new evidence that brought about his decision to reopen the investigation.635 10.13 Once NI decided to cooperate, the evidential flood gates opened, providing material that had not been made available to the police by Burton Copeland. I can only repeat that it is impossible to ascertain to what material Burton Copeland had access or what advice they provided. 10.14 To complete the chronology, on 4 July 2011, the Guardian reported that the NoTW had hacked the mobile phone belonging to Milly Dowler. On 7 July 2011 the final edition of the NoTW was published, with the editorial admitting: Quite simply, we lost our way Phones were hacked, and for that this newspaper is truly sorry. 10.15 On 17 July 2011, for reasons not connected with this investigation but in the light of further allegations relating to his conduct,636 Sir Paul Stephenson resigned and, on 18 July 2011, Mr Yates also resigned.637 10.16 On 20 July 2011 the Home Affairs Committee published its report: Unauthorised tapping into or hacking of mobile communications. The Committee expressed the following view of the exercise conducted by Mr Yates:638 Although what Mr Yates was tasked to do was not a review in the proper police use of the term, the public was allowed to form the impression that the material seized from Mr Mulcaire in 2006 was being re-examined to identify any other potential victims and perpetrators. Instead, the process was more in the nature of a check as to whether a narrowly-defined inquiry had been done properly and whether any new information was sufficient to lead to that inquiry being re-opened or a new one instigated. It is clear that the officers consulted about the earlier investigation were not asked the right questions, otherwise we assume it would have been obvious that there was the potential to identify far more possible perpetrators in the material seized from Mr Mulcaire ...
http://www.cps.gov.uk/news/press_releases/102_11/ para 118, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Yates.pdf 636 These are considered at Part G Chapter 3 637 John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY6.pdf 638 pp45-46, para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-43-House-of-CommonsHome-Affairs-Commitee-report-on-unauthorised-tapping-part-1.pdf
635
634
411
11. The past unravels

The civil proceedings before Vos J and the disclosure process
11.1 The civil litigation has attracted extensive public interest and attention. It has also had wider consequences beyond the confines of the claims for damages themselves. In order to understand the full extent of the interception, recording and use of their voicemail messages, so that they could properly present their claims, the claimants made disclosure applications which required NGN and the MPS639 to disclose various documents. By way of example, on 6 December 2010 Vos J ordered the MPS to disclose the following classes of documents to Skylet Andrew:640 (a) (b) Telephone records used by Mr Muclaire relating to the accessing of Mr Andrews voicemail messages. Documents evidencing communications between Mr Mulcaire and another person concerning the interception activities of Mr Mulcaire in relation to Mr Andrews voicemail messages. Documents evidencing communications between Mr Mulcaire and employees of NGN concerning information about Mr Andrew. Documents concerning payments for information made by NGN to Mr Mulcaire. Transcripts of Mr Andrews voicemail messages obtained from Mr Mulcaire. Documents found during the MPS investigation referring to Mr Andrew or his mobile phone.
11.2
(c) (d) (e) (f) 11.3
On 17 January 2011, Mr Mulcaire provided information to Mr Andrew indicating that he had supplied information from voicemail messages belonging to Mr Andrew to the news desk at the NoTW, identifying the name of the person whom he alleged had asked him to intercept the voicemail messages. As a further example, on 20 July 2011, Hugh Grant and Jemima Khan obtained an order, with the consent of the MPS, for the disclosure of documents concerning the voicemail messages allegedly intercepted by Mr Mulcaire and forming the subject of newspaper articles about them in the NoTW and other newspapers. As a result of the claim brought by Lord Prescott, the following statement entered the public domain,641 on 19 January 2012: On 3 December 2011 [NGN] admitted a list of matters including that it had entered into an agreement with [Mr Mulcaire] and paid him hundreds of thousands of pounds to obtain information about specific individuals for use by the News of the World journalists and publication in the newspaper. It is admitted that certain of its employees were aware of, sanctioned and requested the methods used by [Mr Mulcaire] which included the unlawful interception of mobile phone messages and obtaining call and
11.4
11.5
By way of provisions that enable a party to litigation to obtain disclosure from a person or body that is not a party to that litigation 640 Skylet Andrew v News Group Newspapers Ltd and another [2011] EWHC 734 641 Admissions made by NGN for the purposes of civil litigation may be relevant in relation to a general consideration of the practices of the press but do not constitute any form of admission on behalf of any individual employee and cannot be assumed to be directed to any individual employee
639
412
text data (which methods are known as phone hacking; obtaining information by blagging: and, in one case, unlawfully accessing emails). It is also admitted that [Mr Mulcaire] had provided journalists at The News of the World with information to enable the said journalists themselves to intercept voicemail messages, [NGN] accepted that some information unlawfully obtained by [Mr Mulcaire] was used to enable private investigators employed by the News of the World, including Derek Webb, to monitor, locate and track individuals and place them under surveillance. 11.6 By January 2012, a large number of claims had been settled. NGN consented to the assessment of aggravated damages on the basis that there were those at NGN who knew about its wrongdoing and sought to conceal it by putting out public statements they knew to be false, deliberately failing to provide the police with all facts of which they were aware, deliberately deceiving the police in respect of the purpose of payments to Mr Mulcaire and destroying evidence of wrongdoing.642
The judicial review of the actions of the MPS

11.7 The July 2009 Guardian article prompted a number of individuals to question whether their voicemail messages had been intercepted. Four such individuals were Chris Bryant, MP for the Rhondda, Brendan Montague, Brian Paddick and Lord Prescott. All four contacted the MPS asking whether this was the case. Mr Bryant was informed that his name and telephone number appeared in the material retrieved during the investigation. Mr Bryant said that the information provided was vague and incomplete. By letter dated 25 February 2010, he requested further details having received information from his service provider to the effect that, in about December 2003, there had been three unlawful attempts to intercept his communications. He said that he was told by the MPS informally in a telephone conversation that he would not be given any further information without a court order.643 Mr Paddick was told that there was no information to suggest that he had been subject to unlawful monitoring or interception of his telephone. His solicitors enquired again and the MPS then reported that, in fact, his name and occupation did appear in the documents obtained during the investigation.
11.8
11.9
11.10 As regards Lord Prescott, as set out above, initially, Mr Yates personally assured him that there was no evidence to suggest that his voicemail messages had been intercepted; he was not told about the references to his adviser and her telephone numbers and pass codes. The first intimation that this was not the case came in December 2009. 11.11 So far as Mr Montague was concerned, there was no evidence at the time the proceedings were instituted that his name appeared in the documentary material recovered during the investigation. His concerns were generalised, rather than being based upon any specific incident or report. Ultimately, he did not dispute that no evidence had emerged that his name or details featured in any of the materials seized from Mr Mulcaire in 2006. 11.12 The claim for judicial review was issued on or around 14 September 2010. Lord Prescott was added to the proceedings in November 2010. The claimants challenged the decisions of the MPS as to the scope of Operation Caryatid and the decision not to inform every person whose voicemail messages had or may have been intercepted that this had or may have occurred.
642 643
ibid R (Bryant, Montague, Paddick and Prescott) v Commissioner of Police of the Metropolis [2011] EWHC 1314 (Admin)
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11.13 On 9 February 2011, the Directorate of Legal Services at the MPS wrote to Lord Prescott and informed him that in recent material supplied by News International there was an email (from an email address associated with Mr Mulcaire) dated 28 April 2006 which appeared to contain the details of the mobile telephone number and PIN number of the adviser to Lord Prescott and that there was reference to 45 messages. 11.14 On 10 March 2011, Mr Bryant was shown facing pages in a notebook seized from Mr Mulcaire which contained telephone numbers which would have dialled his phone and very probably left voicemails messages, various addresses where he has lived, the names of his partners, his constituency, his home telephone numbers and other personal information. 11.15 On 15 March 2011, Mr Paddick was shown three documents obtained by the police in 2006. The information included his police mobile phone number, the mobile phone number of his then partner and his former partner, the addresses and telephone numbers of numerous other associates, his own landline number and landline numbers of others. There was also a print out from the electronic records held by Mr Mulcaire which described Mr Paddick as a project.
11.16 On 23 May 2011 the application for permission to proceed with a claim by way of judicial review came before the Administrative Court.644 Mr Justice Foskett considered the facts set out above and decided that in relation to the cases of Mr Bryant, Mr Paddick and Lord Prescott, each raised a claim worthy of consideration at a full hearing.645 Ultimately the claim for judicial review was compromised, with admissions being made by the MPS. The following declaration was agreed between the parties: In breach of its duties under Article 8 of the European Convention on Human Rights, in circumstances where the interference with the individuals right to respect for their private lives may have amounted to the commission of a criminal offence, the defendant failed to take prompt, reasonable and proportionate steps to ensure that those identified as potential victims of voicemail interceptions were made aware of: The interference with their right to respect for private life that may have occurred; The possibility of continuing threats, where such threats had been identified; The steps they might take to protect their privacy; and Following the conclusion of the criminal proceedings against Glenn Mulcaire and Clive Goodman, the identity of those whom the police believed to be primarily responsible for the interception. Such steps should have included informing the public generally, by announcements in the media, through the mobile telephone companies, or otherwise (and should have included, where appropriate, individual notification. 11.17 The declaration came before the court (Gross LJ and Irwin J) for approval. Given the circumstances (namely a desire by both parties, for their own reasons, to settle the claim, together with the absence of argument as to the law), the Court made the agreed declaration but, at the same time, directed that it had no value as a precedent for future cases.
A claim for judicial review cannot proceed unless the Administrative court grants permission to proceed. Permission will only be granted where the claimants are able to demonstrate that they have an arguable case for seeking relief by way of judicial review 645 R (Bryant, Montague, Paddick and Prescott) v Commissioner of Police of the Metropolis [2011] EWHC 1314 (Admin)
644
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12. Conclusions: the police and the CPS

2006 to 2007
The police
12.1 I am entirely satisfied that the officers who worked on Operation Caryatid approached their task with complete integrity and that each of the decisions taken during the investigation and prosecution was appropriate, justified and in keeping with the operational imperatives of the police at that time. I have no doubt that neither Peter Clarke nor any of the other officers were or would have been affected by any relationships between some senior officers and NI personnel. There is no evidence that the relevant officers approached the task from the standpoint of seeking to deal with any alleged wrongdoers other than properly and so as to bring the force of the law to bear. Furthermore, I find no evidence of compromise to the independence of the police officers engaged on Operation Caryatid who were prepared to follow evidence as far as it went but were equally mindful of other operational imperatives. Given how little was known about voicemail interception when the investigation began in December 2005 and the challenges involved in understanding how the interceptions were taking place and then proving the interceptions, it could only have been (and was) a robust, tenacious, well-motivated and skilful team that achieved such extensive evidence that Clive Goodman and Glenn Mulcaire were driven to admit their guilt. Important convictions followed, this criminality was brought to the attention of the public and mobile phone companies were prompted to improve their security systems. There is equally no doubt that the decision made in or around late September 2006 by Peter Clarke not to expand the investigation was wholly justified given the threat from terrorism and the enormous counter terrorism operations then in play (to say nothing of other serious crime the investigation of which would be under-staffed because of the demands of such investigations). In my judgment, there is simply no scope for concluding that the decision was in any way influenced by pressure from, fear of, or any personal relationships with, employees of NI or the NoTW. That is, however, only the start of the matter. Having decided, albeit for irreproachable reasons, not to investigate journalists other than Clive Goodman, it was imperative that the reasons for the decision were fully and accurately recorded and, furthermore, that the police devise, institute and execute a suitable strategy to deal with the many unresolved issues surrounding the investigation. It is unnecessary to say more about the former (although it might have assisted years later when the Operation came to be revisited). As to the latter, the police rightly identified that potential victims of voicemail interception needed to be informed and it was intended to devise a proportionate and cost-effective strategy. Unfortunately, at almost every turn, the strategy devised was not fit for purpose; neither did it succeed. First, the strategy was insufficiently thought out. Its formulation did not even encompass everyone identified in the blue book. It was intended that those whose voicemail boxes had been rung by the suspect numbers would be informed. The strategy therefore overlooked those identified in the blue book whose voicemail boxes may have been infiltrated by a journalist other than Mr Goodman. It also overlooked those whose voicemail boxes had been
12.2
12.3
12.4
12.5
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accessed by the suspect numbers but at such an early date that the phone companies no longer retained the relevant records. 12.6 Second, the police did not make the phone companies aware (sufficiently or, probably at all) of the role that it was intended for them to play; neither did the police obtain their agreement to undertake such a role. It was simply assumed that, having been asked to identify any customers whose voicemail boxes had been called by the suspect numbers, the phone companies would naturally inform all those that they identified. Further, despite proceeding on this assumption, no steps at all appear to have been taken to check that the phone companies had carried out the task as anticipated. Although the investigating officers knew that there was an enormous body of material seized from Glenn Mulcaire which pointed towards large scale collection of information about mobile phones, PINs and other personal details, no sufficient thought was given to what impact that material had on the issue of warning victims or potential victims. It is entirely understandable that, as more and more has emerged, concern has been increasingly expressed that the MPS was protecting the NoTW for it was the reputation of that paper that benefited from the targeted focus of the investigation and the fact that only a small number of potential victims were notified of the facts. In the same way that I have no doubt that the decision to limit the scope of the investigation was not linked to any relationship with NI, I am similarly sure that the failure either to devise or to execute an appropriate strategy was not influenced in any way by, or connected to, any inappropriate relationship between the MPS and NI. Third, the exit strategy ought also to have given some thought to advising senior management at the NoTW and NI, about their position and the reasons for the curtailment of the investigation not least so that management could consider whether (and if so, what) steps should be taken to improve corporate governance in this area. In truth, in the light of the stance taken by the NoTW over a period of years, it is likely that nothing would have been done and police concern would have been dismissed. When NI and the NoTW declared that there was just one rogue reporter, however, consideration should have been given to the extent to which silence on the part of the MPS provided implicit support for the claim. At this distance of time and with so much more now known, it is difficult to know what could or should have been done. As it was, the issue was not even considered.
12.7
E
12.8
The response of NI to the prosecution and allegations of widespread criminality within the News of the World
12.9 NI failed to carry out a proper internal investigation into what had emerged from the prosecution or into the allegations made by Mr Goodman when appealing against his dismissal. Apart from a review of emails sent or received by the individuals named by Mr Goodman, the investigation was limited to Mr Cloke and Mr Myler asking the individuals concerned whether there was any substance to the allegations and accepting at face value their denials. There was no detailed analysis of precisely what Mr Mulcaire had done to justify the enormous sums that he had been paid and no sign that the NoTW was concerned with anything other than further damage to its reputation or that it regarded the fact that criminal conduct may have flourished as a significant risk either from a corporate governance or operational perspective.
12.10 Despite the inadequacy of the internal enquiries that were conducted and despite the belief held by Mr Crone that it was inaccurate to assert the one rogue reporter defence, NI maintained publicly that Mr Goodman acted alone. The episode was viewed as an aberration,
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involving one journalist and it was maintained that a full, rigorous internal inquiry was being carried out. Rather than face and tackle the problem, the title followed its wish simply to draw a line under it the entire affair and hope that it all went away. 12.11 Even when Mr Silverleaf QC advised that there was powerful evidence of a culture of illegal information access used to produce stories for publication, there was no internal investigation. Rupert and James Murdoch claimed that there had been a cover up to which senior management had been victim. If that was right, then the accountability and governance systems at NI would have to be considered to have broken down in an extremely serious respect. Both Mr Myler and Mr Crone strongly denied that there had been a cover up. Whatever the truth, there was serious failure of governance within the NoTW. Given the criminal investigation and what are now the impending prosecutions, it is simply not possible to go further at this stage. In any event, what can be said is that there was a failure on the part of the management at the NoTW to drill down into the facts to answer the myriad of questions that could have been asked and which could be encompassed by the all embracing question (whether or not it was in fact asked) what the hell was going on? This is a significant finding in the context of the practices of this newspaper at least; whether it can now be said by the press generally that it was a case of one rogue newspaper is another matter.
2009 to 2011
News International 12.12 NI, through Colin Myler, reacted to the Guardian article by going on the attack, labelling the allegations in a letter to the PCC to be unsubstantiated, irresponsible and wholly false. Before the PCC and the CMS Committee, NI maintained the stance that there was no evidence that any member of staff at the NoTW had been involved in voicemail interception other than Mr Goodman. The determination of NI to maintain a line that, at the very least, the legal director believed was not true (and in which, at the very least, the editor, Mr Myler could not be said to have had confidence) in the face of two investigations by the CMS Committee and two investigations by the PCC is extraordinary and, at the very least, a demonstration of loyalty to the NoTW and its reputation which says a great deal about the culture of the paper (to say nothing of its practices and its approach to ethical propriety). In fact, the NoTW maintained the one rogue reporter defence until the Spring of 2011 when three NoTW journalists were arrested as part of Operation Weeting. Police 12.13 Between July 2009 and January 2011, the failure to reopen Operation Caryatid (or at the very least to conduct a proper scoping exercise to decide whether it should be reopened) can be reduced into five overlapping errors. These are: (a) In reality, Mr Yates failed adequately to address any question other than whether there was anything in the newspaper reports that constituted new evidence. This was notwithstanding the fact that a vast amount of documentation available from the August 2006 seizures had not been fully analysed by the MPS itself; very little of it had been considered (let alone reviewed) by the CPS, save only for the very limited exercise of disclosure of unused material. There was a failure correctly to assimilate the admittedly nuanced advice given by counsel in August 2006 as to the likely interpretation of s1 of RIPA, and, probably
(b)
417
because of a misunderstanding, it was later misrepresented. (c) There was a mischaracterisation of the evidence which had been provisionally reviewed in August/September 2006 as amounting to no evidence either of other criminal offences or as implicating other potential defendants or, alternatively, if it was thought that there was evidence but only insufficient to prosecute, to consider whether, in the light of the Guardians article, that approach continued to be correct. There was a failure to appreciate that the determinative reason for closing the investigation down in September 2006 was not the quality of the evidence but an operational assessment of competing demands on the resources of SO13 and the impact of counter terrorism generally and the limited comparative value in further pursuing the matter compared to the input that would have been required. No assessment was made of the impact of the revelations emanating from the Guardian and the New York Times other than in a defensive frame of mind that the decisions taken in 2006 had to be correct (not least because Peter Clarke had made them).
(d)
(e)
12.14 I am not in doubt that the reaction of the MPS to the Guardian article published on 8 and 9 July 2009 was wholly inadequate. For Mr Yates to treat this well-researched piece as just another newspaper article is wholly at odds with the immediate reaction of others; outside the police service, they included the Home Secretary, Parliament, the DPP and, incidentally, the PCC. Whereas I do not believe that Mr Yates was, in fact, influenced in his decision-making by his friendship with Mr Wallis, given the reference to suppressed evidence, the fact that the MPS had not alerted all those whose phones were targeted and the fact that a targeted (albeit comparatively limited) prosecution had been pursued, it was a serious misjudgement to accept responsibility for making a decision affecting the NoTW (particularly one in favour of doing nothing) knowing he was a personal friend of the deputy editor. It did not need to be him who considered the allegations: it could have been any senior officer. 12.15 To make matters worse, Mr Yates dismissed the allegations made by the Guardian in a matter of hours. He did not give DCS Williams any real opportunity to refresh his memory as to the nuances of what had been a comparatively complex investigation which had concluded just short of three years beforehand. Neither did he wait for the documents to be retrieved from storage. Further, he did not engage with the substance of the allegations or scrutinise the information he was given. At the very least, he accepted at face value that there had been no evidence that journalists other than Mr Goodman had been involved in the criminality and that what leads there might have been were no longer viable. This approach is explained entirely by the inappropriately dismissive, defensive and closed-minded attitude he adopted from the outset. 12.16 Then, having reached his dogmatic conclusion on 9 July 2009, he closed his mind to the question of whether there might be material in police possession that could justify reopening the investigation and clung over-tenaciously to the shibboleth no new evidence. Operation Varec in 2010, (following the article in the New York Times) took the same path. The only steps taken were aimed at obtaining new evidence, including seeking interviews with those to whom the article referred, requesting material from the New York Times and other titles and information from NoTW reporters: there was no question even of scoping the exercise of looking at the material that had been in the possession of the police for four years. Even as late as January 2011, Mr Yates was warning the DPP of the risk of presentational embarrassment to both the MPS and the CPS if matters were re-opened. Unfairly and tendentiously he was placing both organisations in the same boat, when plainly they were occupying different vessels. Even to this day, Mr Yates maintains that it was the provision of new information by NI in January 2011 which warranted the reopening of the investigation and nothing before.
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12.17 The judgment of DCS Williams was also clouded by his defensiveness. He did not see beyond the need to rebut the suggestion of a police cover-up. Rather than conducting a thorough review of his decision-making, DCS Williams simply adopted the position that there was no evidence to implicate any other journalists without making clear that although there had not been sufficient evidence to charge any other journalists, there was circumstantial evidence that had generated further lines of enquiry and therefore that the Guardian was right to the extent that there was material in police possession that could have been acted upon. There was simply no reason for not, at any time, providing the explanation that this additional work was not undertaken because of an operational decision essentially consequent upon intense counter terrorism duties. 12.18 Having said that, I must make it clear that I accept entirely that DCS Williams was acting entirely in good faith; he did not hide evidence or intend to mislead Mr Yates. At its highest, he mischaracterised what was available and mis-recollected or misunderstood the effect of the legal advice which had been received. Furthermore, although he secured the documents from storage and reviewed the position over the following days, after the press announcement which Mr Yates made on the day of the Guardian report, in reality, a defensive mindset had been engaged and there was no prospect of that decision being revisited. 12.19 I must also make clear that I find no evidence to suggest that DCS Williams was influenced in any way by the fact that the object of this investigation had been the NoTW. As he had done in 2006, if required, he would have been fully prepared to pursue any investigation as far as it could be taken. Neither is there any question of his seeking to curry favour with the press or of him having regard to what might have been considered the overly close social relationships of some senior officers with senior members of the press. Having acquitted Mr Yates of being affected by the relationship, there is nothing even to base an allegation of that nature against DCS Williams: I do not impugn the integrity of DCS Williams in any way. 12.20 There is no doubt that the manner in which the MPS remained implacable in the face of increasingly strident allegations in the press and demonstrated an unwillingness to revisit the investigation fuelled a legitimate concern that influence was at work. It is not surprising that in the years that have followed there should have developed a belief that relationships between NI and senior figures within the MPS had become so inappropriately close that the integrity of decision-making by the MPS could not be trusted. Public concern would have been reinforced by the ill-judged article written by Mr Hayman and published in the Times on 11 July 2009. He gave the impression, no doubt inadvertently but undeniably, that he was being deployed by NI to give support to the police line which, itself, was in support of NI. It was also not surprising that the claim for judicial review should follow. The CPS 12.21 The conduct of the CPS and counsel in relation to the prosecution of Clive Goodman and Glenn Mulcaire cannot be criticised. In the light of the material provided by the police, they advised on an entirely appropriate strategy of targeted prosecution which was pursued effectively to conviction. Analysis of unused material for the purposes of disclosure in that case did not involve any assessment of whether others at the NoTW should be investigated or prosecuted and there is no suggestion that they were asked to review the Mulcaire material to advise on whether further investigations should be pursued. That, as I have made clear, was an operational decision for the police. 12.22 Between July 2009 and January 2011, the DPP approached successive revelations in the media with an ever open mind and ever-increasing frustration. Quite properly, he took the
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Guardian article of July 2009 seriously and commissioned appropriate internal enquiries. Given the allegation that the CPS had not pursued all possible charges those enquiries naturally focused on the material with which the CPS had been provided and the decisions that prosecutors had been required to make. Going further, however, the CPS in general and the DPP in particular were hampered by the fact that all relevant key personnel had since left the CPS. The inevitable diminution of memories by the lapse of time, not surprisingly made them reliant on briefing notes from the MPS and the review was not assisted by the failure to examine witness statements and exhibits from the prosecution. It was, however, correct to conclude that the original prosecution had been conducted properly. 12.23 It was difficult for the DPP to go behind the note prepared by counsel that they were told that there was no evidence connecting Glenn Mulcaire to other journalists but the press release (I am not in a position to say whether the police had any information on any other victims or suspects that was not passed to the CPS) was entirely fair. He reacted to the for Neville email swiftly and, in the circumstances, reviewing the matter on 20/21 July 2009, it is not surprising that Mr Starmer needed urgent advice from Mr Perry. In that regard, it is unfortunate that Mr Perry did not request further time in order to re-acquaint himself with the relevant facts and law before advising, and that the resultant product did not accurately reflect the advice he had given in August 2006. In reality, however, this made little or no difference to the subsequent course of events. 12.24 The further allegations in the New York Times caused the DPP to re-evaluate the legal advice: he was then put on the right track. Given what the police placed before the CPS in relation to Operation Varec, the decision as to prosecution was inevitable. In January 2011, following the revelations arising from the civil claim brought by Sienna Miller, Mr Starmer reached the point where nothing less than a full review would reassure him that all relevant evidence had been acted on appropriately: that, again, was entirely the correct approach. 12.25 I conclude by endorsing the position as articulated by Mr Godwin during his evidence:646 the police are in a unique position because theyre an institution that can be called upon to investigate any other part of the establishment machinery, if you like, at any time, so in a sense they have to stand slightly apart, and that psychological distance between other institutions and the police. That doesnt mean to say you cant have completely cordial relations and high quality engagement with other professions or institutions, but at the same time I think the police are that organisation who can sometimes be called upon to investigate, and therefore the need for transparency, the need for accountability, is very high, quite properly, and I wasnt entirely convinced some of those risks were identified
pp44-45, lines 18-6, Tim Godwin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-7-March-2012.pdf
646
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Chapter 5 a New approaCh to the allegatioNs

1. Police Inquiries: Operations Weeting, Elveden and tuleta
Introduction
1.1 Operation Weeting commenced on 26 January 2011. Its immediate spur was the provision to the Metropolitan Police Service (MPS) by News International (NI) of what the MPS has characterised as significant new information relating to allegations of phone hacking at the News of the World (NoTW) in 2005-2006.1 Its remit was initially to investigate these allegations, but evidence relating to other dates and print titles is now being considered. The operation falls under the aegis of the Specialist Crime Directorate (SCD) of the MPS, and at all material times until 31 October 2012 has been headed by DAC Sue Akers, head of organised crime and criminal networks with the SCD, who has received universal praise for her work. DAC Akers also headed Operations Elveden and Tuleta. Operation Elveden began on 20 June 2011 following the MPS being handed by NI a number of documents containing evidence relating to alleged inappropriate payments to a small number of police officers by journalists at the NoTW in exchange for confidential information.2 Since its early stages however, the ambit of Operation Elveden has widened significantly: additional print titles are now being investigated, as well as a range of public officials.3 Operation Tuleta commenced as a scoping exercise in June 2011 to consider the possibility of investigating allegations of computer hacking at the NoTW falling outside the remit of Operations Elveden and Tuleta.4 In due course it became a fully-fledged investigation, and again its scope has broadened considerably. DAC Akers attended the Inquiry on 6 and 27 February, and 23 July 2012, to provide updates as to the current status of these three operations. On each occasion she helpfully provided a witness statement which she elaborated in oral evidence.5 On 31 October 2012 DAC Akers filed a fourth witness statement which brings the position as up to date as it can be.6 She was not asked to give oral evidence in line with that statement. This section of the Report is heavily based on her evidence, as well as other material which is in the public domain.
1.2
1.3
1.4
pp4-5, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DAC-SueAkers.pdf 2 p1, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statement-of-DAC-SueAkers1.pdf 3 pp2-3, para 5, ibid 4 p9, para 32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Third-Witness-Statement-of-DAC-SueAkers.pdf 5 http://www.levesoninquiry.org.uk/evidence/?witness=dac-sue-akers 6 p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Fourth-Witness-Statement-of-DAC-SueAkers.pdf
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Operation Weeting
1.5 As at 6 February 2012 there were 90 officers including support staff dedicated to Operation Weeting; of these, approximately 35 worked full time in relation to notifying and supporting the victims.7 As DAC Akers has explained in evidence, in its initial phases Operation Weeting focused on seeking to notify the victims and on analysing the numerous pages of the Mulcaire notebooks,8 which had been seized as part of Operation Caryatid on 8 August 2006.9 Subsequently, however, Operation Weeting acquired possession of substantial quantities of email data from a variety of sources.10 In due course, the MPS was provided with the content of NIs main server from 2005, containing a vast number of permanently deleted emails.11 Officers working on Operation Weeting have been able to complete the reconstruction of these deleted emails recovered from storage devices obtained from NI, restoring three hundred million emails. DAC Akers has informed the Inquiry that:12 weve rebuilt experts have rebuilt material that we thought had been lost, and that was completed towards the end of November last year. So were now going through that material.
1.6
The first arrest carried out under Operation Weeting was in April 2011, and the last (to date) at the end of August 2012. So far, 25 people13 have been arrested in connection with phone hacking, ten of whom are non-journalists. 17 individuals have been arrested for conspiring to intercept communications and/or in relation to the substantive offence. Of these, seven former NoTW employees have been charged with an overarching, general offence of conspiracy to intercept communications, and an additional former employee has also been charged with a number of date-specific substantive offences. A provisional court date has been fixed for 9 September 2013. Of the 17 arrested, six individuals have been released from police bail with no further action taken; the remaining three individuals remain on police bail for conspiracy offences.14 It is clear that Operation Weeting has expended a considerable amount of police manpower and resource. It is also clear that its work has not finished. Eight individuals have been arrested for perverting the course of justice: this operation has been named Operation Sacha. Seven of these have been charged with conspiring to commit that offence, and have been sent to the Crown Court for trial. A hearing for the defendants applications to dismiss is scheduled for 12 and 13 December 2012.15
1.7 1.8
p11, lines 6-10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Morning-Hearing-6February-2012.pdf 8 approximately 11,000 pages covering the period January 2001-August 2006: p11, para 32(i), http://www. levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DAC-Sue-Akers.pdf 9 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DAC-Sue-Akers.pdf; passim 10 p14, para 39(i), ibid 11 p15, para 39(iv), ibid 12 p9, lines 19-22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Morning-Hearing-6February-2012.pdf 13 p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Fourth-Witness-Statement-of-DAC-SueAkers.pdf 14 pp2-3, paras 7-8, ibid 15 p3, para 9, ibid
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Chapter 5 | A New Approach to the Allegations
Operation Elveden
1.9 In February 2012 there were 40 police officers and staff working on Operation Elveden and the MPS was in the process of increasing this to 61.16 The investigation has entailed going through large quantities of NI business records and emails, seeking evidence relevant to suspicious payments. As of 26 October 2012 a total of 52 individuals had been arrested by officers working on Operation Elveden; of these, 25 are current and former journalists (including journalists from The Sun; the Daily Mirror and its sister paper, the Sunday Mirror; and the Daily Star Sunday).17 The arrests made thus far under Operation Elveden are for offences under the Prevention of Corruption Act 1906, misconduct in a public office and conspiracy to commit these offences, aiding and abetting misconduct in a public office, money laundering contrary to s328 of the Proceeds of Crime Act 2002, and bribery contrary to s1 of the Bribery Act 2010;18 the gravamen of the allegations being that they offered money to public officials in exchange for stories. As at 26 October 2012 files had been submitted to the CPS to advise on appropriate charges for three public officials and four current and former journalists.19 In an important piece of evidence, DAC Akers pointed out that offences20 of this nature are suspected to have been committed in at least three separate newspaper titles right up to early 2012.21 DAC Akers expects further arrests to be made in due course.22
1.10
Operation Tuleta
1.11 Operation Tuleta began with an investigation into the circumstances surrounding the hacking into computers of Ian Hurst by or at the instigation of NoTW journalists in 2006.23 As at October 2012, Operation Tuleta was undertaking an assessment of 142 separate allegations of data intrusion, including allegations of phone hacking, computer hacking, and improper access to banking, medical and other personal records.24 This has entailed interrogating between 8-12 terabytes of data across 70 different storage devices; a vast undertaking.25 In April 2012, officers working on Operation Tuleta discovered inconsistencies with regard to the origin of material they had received from the Management Standards Committee (MSC).26 Some of the information provided by the MSC had been traced to material which appears to have been obtained from two stolen mobile phone devices. DAC Akers has said that:27
1.12
p3, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statement-of-DACSue-Akers1.pdf 17 pp5-8, paras 19-27, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Third-Witness-Statement-ofDAC- Sue-Akers.pdf; p5, para 15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Fourth-WitnessStatement-of-DAC-Sue-Akers.pdf 18 p5, para 20, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Third-Witness-Statement-of-DAC-SueAkers.pdf 19 p5, para 15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Fourth-Witness-Statement-of-DACSue-Akers.pdf 20 On 20 November 2012 five individuals were charged with two conspiracies relating to the receipt and authorisation of payments to public officials 21 pp6-7, paras 22 and 24, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Third-Witness-Statementof-DAC-Sue-Akers.pdf 22 p8, para 27, ibid 23 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Ian-Hurst.pdf 24 p9, para 25, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Fourth-Witness-Statement-of-DACSue-Akers.pdf 25 p10, para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Third-Witness-Statement-of-DACSue-Akers.pdf 26 p10, para 36, ibid 27 p13, lines 8-18, DAC Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-MorningHearing-23-July-20121.pdf
16
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it seems that on occasions weve found that material has been downloaded from and is in possession of News International titles which appear to have come from stolen mobile telephones. It appears from some of the documentation, and thats dated around late 2010, that one of the mobile phones has been examined with a view to breaking its code, its security code, so that the contents can be downloaded by experts. 1.13 Officers working on Operation Tuleta are anticipating the identification of the individuals responsible for the download of the content of these stolen devices, and are also seeking to establish whether the downloading of stolen data may have been a common practice at the other NI titles. DAC Akers has told the Inquiry that it is her firm intention to request further documentation from the MSC in respect of this discovery, with the purpose of establishing:28 whether in fact these are just isolated incidents or just the tip of an iceberg. 1.14 As at 31 October 2012, 17 arrests had been made under the Computer Misuse Act 1990, and/or in respect of offences of handling stolen goods, by officers working on Operation Tuleta.29 This figure includes a former Times journalist who, on 29 August 2012, was arrested by Operation Tuleta officers on suspicion of offences under the Computer Misuse Act 1990 and conspiracy to pervert to course of justice.30 All these individuals are on police bail pending completion of the arrest phase and CPS advice on charging.31 As with Operations Weeting and Elveden, it is clear that there is considerable potential for further arrests of journalists, and not merely those previously employed by the NoTW.
E
1.15
2. The Management and Standards Committee

2.1 Between 2007 and 2011, the approach to the containment of the issue of what had happened at the NoTW gradually unravelled. Payments to Clive Goodman and Glenn Mulcaire might have ensured their silence but a number of the victims were prepared to invest in legal proceedings both to learn precisely what had happened and to obtain redress. Very substantial further payments in settlement did not stem the tide and, although most of the press was entirely silent on the subject, the effect of the July 2009 story in the Guardian (quite apart from the approach of the police) was to generate enquiry in Parliament, press coverage in the New York Times and the fact (and yet further risk) of an exponential rise in litigation. In the circumstances that have been described, the MPS grasped the nettle and re-opened the investigation; from the perspective of NI, containment was no longer an option because the reputational risk to News Corporation (News Corp) (let alone NI) required a complete change of direction. That came in the form of the Management and Standards Committee (MSC) and in July 2011, the board of News Corp appointed the distinguished UK commercial lawyer, Lord Grabiner QC, to the role of Chairman. Lord Grabiners appointment was made, at least in part, to help ensure the effective exchange of information between NI and the MPS, particularly with regard to the inquiry into alleged
2.2
2.3
28 29
p14, lines 4-6, DAC Akers, ibid p10, para 28, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Fourth-Witness-Statement-of-DACSue-Akers.pdf 30 http://www.independent.co.ui/news/uk/crime/former-times-reporter-patrick-foster-held-over-hacking-8092900.html 31 p10, para 28, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Fourth-Witness-Statement-of-DACSue-Akers.pdf)
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police payments at the NoTW, as part of Operation Elveden.32 Lord Grabiner reports to Gerson Zweifach, Senior Executive Vice President and Group General Counsel of News Corp, who was himself appointed to that role in June 2012, taking over that previously held by Joel Klein, formerly Assistant Attorney General of the United States.33 Gerson Zweifach in turn reports to the independent directors on the News Corp Board through Professor Viet Dinh, an independent Director and Chairman of News Corps Nominating and Corporate Governance Committee, and also a former Assistant Attorney General.34 2.4 In July 2011, two further NI executives (Will Lewis, formally editor-in-chief of the Telegraph Media Group and previously group General Manager at NI, and Simon Greenberg, previously Head of Corporate Affairs) resigned from their positions with NI in order to take up posts with the MSC. They have been appointed as full time MSC executive members. News Corps General Counsel for Europe and Asia, Jeff Palker, was appointed to the MSC as a part-time legal executive.35 The independence of the MSC from both NI and News Corp is one of its defining characteristics. This independence is ensured by requiring the MSC to operate its own governance structure, separate to that of News Corp. The MSC is housed and operates from a secure unit on NIs Wapping site in London, located at a physical distance from the main NI building.36 This independence, both in physical and figurative forms, is critical to the MSCs ability independently to investigate the allegations of wrongdoing at the NoTW, as well as at NI.
2.5
Terms of reference and remit

2.6 The MSC was established by News Corp with a role and remit to investigate allegations of criminality relating to phone hacking at the NoTW and other NI titles. Specifically, the MSC has been set up to investigate a number of matters including: allegations of phone hacking at the NoTW; allegations of illegal payments made by NI employees to public officials, including police officers; and all other related issues with regard to NI (including this Inquiry).37 The Committee has therefore played a role of fundamental importance to the ongoing criminal and other investigations into the allegations of wrongdoing at NI. The reason for this new approach is clear. Quite apart from issues concerned with reputation, the United States Foreign Corrupt Practices Act makes it illegal for any US company to pay bribes to overseas officials and News Corp (the corporate parent of News International) is incorporated in the USA. In the light of what had emerged in the UK, it is not surprising that while NI (and, to a lesser extent, News Corp) is subject to investigation in the UK, government and regulators in the USA have also been concerned to look at what had been happening. Rupert Murdoch told the Inquiry that News Corp (through the MSC) was therefore cooperating fully with the US Department of Justice.38 The UK investigations into allegations of phone hacking and payments to public officials are being led by the MPS. Operation Elveden, investigating the allegations of police corruption, has been operating under the supervision of the Independent Police Complaints Commission
2.7
http://www.newscorp.com/news/bunews_452.html#top, http://www.newsint.co.uk/press_releases/management_ and_standards.html 33 http://online.wsj.com/article/BT-CO-20120618-711154.html 34 http://www.newscorp.com/corp_gov/MSC_faqs.html#05 35 p9, para 6.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ThomasMockridge.pdf; http://www.newscorp.com/news/bunews_452.html#top 36 http://www.newscorp.com/news/news_499.html 37 http://www.newscorp.com/corp_gov/msc.html 38 p42, para 179, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Keith-RupertMurdoch2.pdf
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(IPCC).39 The MPS investigations have focused on the UK subsidiary, NI, and although the MSC is cooperating with enforcement agencies in both the USA and the UK, the investigatory remit of the MSC is restricted to only NI titles and matters in the UK.40 The MSC has been authorised by the News Corp board to investigate practices through a process of internal review at the NI titles, namely The Sun, The Times and The Sunday Times. It has also assisted in relation to the evidence gathering related to the NoTW. 2.8 As well as the Committees investigatory functions, the MSC is also responsible for recommending and overseeing the implementation of new policies and systems at NI titles. According to representatives of the MSC, the purpose of this role is to ensure that the highest standards of editorial practices are upheld in future at NI. This includes ensuring business at the newspaper titles, The Sun, The Times and The Sunday Times, are underpinned by robust systems of governance and compliance, as well as a legal structure.41 The Inquiry has not heard any evidence in relation to such recommendations made by the MSC. In addition, the MSC has also been given the authority to negotiate and settle any civil litigation in relation to phone hacking. As such it oversees the News International Compensation Scheme for victims in relation to voicemail hacking by the NoTW and it is right that full mention should be made of this willingness by NI to provide informal redress. The Scheme was announced by NI on 8 April 2011, following a public apology from the newspaper, their publishing company News Group Newspapers (NGN) as well as NI itself, for the actions of journalists involved in phone hacking at the NoTW.42 The Scheme was launched on 4 November 2011, with the solicitors, Olswang, being appointed to handle all victim-driven civil litigation in relation to voicemail hacking at the NoTW, along with administrative responsibilities in relation to the Scheme.43 Sir Charles Gray (formerly a High Court Judge and a very experienced media lawyer) was appointed as the adjudicator of the Scheme. As such, he has provided an independent assessment of any applications received for compensation claims made against NGN by those whose voicemails had allegedly been intercepted.44 According to NI, the purpose of the Scheme is to offer an accessible and streamlined process for the victims of voicemail hacking, in order that they might obtain remedial action without the complexities that can be involved in the court process. The Scheme has also promised an uplift of 10% in respect of potential payments, based on what victims might expect if they successfully settled in the courts. The Scheme has advised potential victims of alleged voicemail hacking to contact the police team in Operation Weeting before applying to join the Scheme, so that the police can identify whether they have been revealed to have been a victim as part of the investigation, thereby justifying a claim. NGN is responsible for reimbursing the costs incurred by the MPS in providing those who apply with appropriate disclosure; it also meets the legal advisory costs of any alleged victims joining the Scheme.45
2.9
2.10
39
p7, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jane-Furniss.pdf; p9, para 41, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Deborah-Glass. pdf 40 http://www.newscorp.com/corp_gov/MSC_faqs.html#11 41 http://www.newscorp.com/corp_gov/msc.html 42 http://www.newscorp.com/corp_gov/MSC_faqs.html#02; http://www.newsint.co.uk/compensationscheme/index. html 43 http://www.newscorp.com/corp_gov/MSC_news_003.html 44 http://www.newsint.co.uk/compensationscheme/index.html 45 http://www.newsint.co.uk/compensationscheme/index.html
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Cooperation with the police

2.11 The autonomy of the MSC has been the cornerstone of the collaboration between the MSC and all those working on the ongoing investigations into the allegations of wrongdoing at NI.46 In addition to the three overarching investigations being undertaken by the MPS, namely Operations Weeting, Elveden (under the supervision of the IPCC) and Tuleta, along with the subsidiary operations that are derived from those, there are the ongoing civil proceedings relating to phone hacking and data hacking and the Parliamentary hearings of the Culture, Media and Sport Select Committee.47 In this regard, in its 11th Report of Session 2010-12, that Committee commented on the cooperation of the MSC at the time of the Parliamentary investigation, praising:48 the willingness of the newly-established Management and Standards Committee to provide the Committee with unsolicited copies of recently unearthed e-mail exchanges that are of relevance to the events under investigation. 2.12 Deputy Assistant Commissioner Sue Akers has sought to explain to the Inquiry the nature and reality of the relationship between the MPS and the MSC. In particular, DAC Akers has praised the levels of assistance and cooperation demonstrated by the MSC, as well as its cooperation in providing information which has been requested by officers conducting the three MPS investigations. As an example of the cooperative approach of the MSC toward the MPS investigations, this has included the voluntary disclosure of potential evidence to Operation Elveden, gathered as part of the MSCs internal review of The Sun.49 It is also perhaps illustrative of the MSCs approach to the matters of investigation, that the Committee initiated internal reviews of The Sun, The Times and The Sunday Times without specific requests from the MPS. To a certain extent, the MPS has been dependent on the cooperation of the MSC in relation to the disclosure of information; although cooperation is exactly what the police would expect from any corporate body where evidence of criminality has been revealed. As DAC Akers explained to the Inquiry, however, because of the terms of the Police and Criminal Evidence Act 1984 (PACE) (as to which the Deputy Commissioner of the MPS has made submissions to the Inquiry), the MPS has not been in a position to force compliance. She stated that:50 the legal advice that weve had has told us that whilst you have the co-operation of News International, as it is in this case, we must proceed by the way of protocol, and thats what were doing. So its voluntary disclosure as opposed to applying for a production order through PACE. 2.14 To date, pursuant to requests and otherwise, the MSC has disclosed large amounts of documentation to Operation Elveden. Evidence obtained through the analysis of some of this documentation has already led to a number of arrests of journalists, as well as other
2.13
pp41-42, lines 25-7, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/lev270212am. pdf; 11th Report - News International and Phone-Hacking, Volume II, ev24, http://www.publications.parliament.uk/pa/ cm201012/cmselect/cmcumeds/903/903ii.pdf 47 http://www.newscorp.com/corp_gov/msc.html 48 p13, para 30, 11th Report - News International and Phone-Hacking, Volume I, http://www.publications.parliament. uk/pa/cm201012/cmselect/cmcumeds/903/903i.pdf 49 p13, lines 2-8, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-6-February-2012.pdf 50 p16, lines 18-23, DAC Sue Akers, ibid
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staff at The Sun, on 28 January 2012 and 11 February 2012.51 These (and other) arrests since November 2011 have been highly publicised. Indeed, some of this coverage has led to complaints from current journalists at The Sun, particularly concerning the circumstances and scale of the arrests. By way of example, following the arrests on 11 February 2012, the associate editor of The Sun, Trevor Kavanagh, claimed that a disproportionately large number of police officers had been involved in the dawn arrests of journalists at their homes and in The Sun offices, representing a witch hunt and an attack on press freedom.52 2.15 In response, Ms Akers explained that the fact that the arrests were carried out without warning was in line with protocols for such investigations, with the primary goal being to secure evidence and prevent suspects from conferring or disposing of evidential material.53 She also suggested that arrests had been carried out in a manner intended to minimise business disruption to the newspaper, noting that searches of The Sun offices were conducted on a Saturday, outside of business hours. She went on to state that:54 The purpose of police action to date has been proactively to investigate the alleged criminality which has been identified. The aim has never been to threaten the existence of The Sun. To this end there has been liaison with the MSC to take account of business risk to The Sun newspaper hence searches being made at The Sun offices on a Saturday when the office would be empty. DAC Akers has acknowledged that this approach to the conduct of searches has since been changed, following the launch of The Sun on Sunday. 2.16 DAC Akers has also told the Inquiry that there was a time when the attitude of the MSC to the MPS changed somewhat. Following the arrests of 28 January 2012 and 11 February 2012, DAC Akers said that the approach of the MSC to the disclosure of evidence was different: 55 We were being asked perhaps to justify our requests to a degree that we perhaps formerly hadnt been, and the material that we were requesting was slower in being forthcoming. 2.17 This change of behaviour occurred at a time of increased publicity for both the MPS and the MSC, against a backdrop of threats of legal action against the MSC and also when changes were made to the senior personnel at the MSC,56 which might themselves have contributed to the different relationship between the MSC and the MPS. In this regard, she observed:57 those two arrest days, there was considerable adverse publicity of both the MPS, the police and the MSC, including threats of legal action against the MSC.
51
pp9-10, lines 22-12, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-23-July-20121.pdf 52 http://www.thesun.co.uk/sol/homepage/news/4124870/The-Suns-Trevor-Kavanagh-Witch-hunt-puts-us-behind-exSoviet-states-on-Press-freedom.html. It might also be said to be an attempt to enforce the criminal law which other commentators have complained is the true reason (rather than press misconduct) for the present Inquiry. 53 pp5-6, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statement-ofDAC-Sue-Akers1.pdf. In the light of the experience that officers had of journalists when seeking to execute a search warrant during the course of Operation Caryatid, this may not be as surprising as otherwise it might seem. 54 p6, para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statement-of-DACSue-Akers1.pdf 55 p10, lines 13-17, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-23-July-20121.pdf 56 para 2.3 above 57 p10, lines 9-12, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-23-July-20121.pdf
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2.18
More specifically, DAC Akers has referred to a period in May 2012 when, for a number of weeks, the MSC temporarily halted the voluntary disclosure of material to the MPS.58 She reported to the Inquiry her understanding that the MSC had been considering their position in relation to the MPS operations during this hiatus59 and went on:60 At the beginning, when we began the enquiries, all contact was through the lawyers; then these were other lawyers, Burton Copeland. Then Mr Lewis and Mr Greenberg were introduced to help facilitate the co-operation, which they did. And in midMay this year, following a development in our investigation, it caused the MSC to reconsider their position and they decided that they would prefer the meetings to be on a more formal basis with lawyers only.
2.19
DAC Akers stressed the importance of full cooperation by the MSC to police operations, and commented that any change in the approach of the voluntary disclosure of evidence would: adversely affect initial decisions that wed made and arrests that were made as well.61 The disclosure of documentation by the MSC resumed in mid-June, following discussion between the MPS with Lord Grabiner and the legal team representing the MSC.62 Such consequences would undeniably have affected the extent to which NI could have argued that it had adopted a new approach to compliance with the criminal law. At that same meeting, a new framework was agreed in relation to communication. This has involved a changed format to meetings between the MSC and MPS teams, and, notably, the insistence on legal representation by the MSC while liaising with officers from the MPS operations.63 Further, a number of executive members of the MSC, including Will Lewis and Simon Greenberg, have been stood down from attending regular briefings between the two parties.64 Despite the change in process, DAC Akers was keen to make clear in evidence to the Inquiry that the professional approach of the MSC towards the MPS has been maintained and that the change hasnt affected the co-operation, which is still very good.65 Since DAC Akers gave evidence in July, it is clear that some tensions have become apparent about the way in which the relationship between the MSC and the MPS has developed. I cannot resolve this issue and, for good reason, I am satisfied that it is not appropriate to elaborate or even to set out the respective positions. In the circumstances, I leave the matter there.
2.20
2.21
p3, lines 9-21, DAC Sue Akers, ibid pp2-3, paras 7-10, 16-17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Third-WitnessStatement-of-DAC-Sue-Akers.pdf 60 pp2-3, lines 23-6, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-23-July-20121.pdf 61 p10, lines 22-25, DAC Sue Akers, ibid; pp8-9, paras 28-31, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/Third-Witness-Statement-of-DAC-Sue-Akers.pdf 62 p3, lines 9-21, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcriptof-Morning-Hearing-23-July-20121.pdf; p2, paras 9, 16-17, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/Third-Witness-Statement-of-DAC-Sue-Akers.pdf 63 p3, lines 9-21, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcriptof-Morning-Hearing-23-July-20121.pdf; pp2-3, paras 9, 17, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/Third-Witness-Statement-of-DAC-Sue-Akers.pdf 64 pp2-3, lines 20-8, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-23-July-20121.pdf; p2, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Third-Witness-Statement-of-DAC-Sue-Akers.pdf 65 pp3, 10-11, lines 7-8, 25-3, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-23-July-20121.pdf; p3, para 10, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/Third-Witness-Statement-of-DAC-Sue-Akers.pdf
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The approach of the MSC to disclosure

2.22 Material provided by the MSC is for the MPS to assess, evaluate and follow up as appropriate. The MSC has made clear that it has a duty to protect journalistic sources used by the NI titles and it is careful to ensure that these are not compromised through disclosure.66 Where disclosed material might enable the identification of confidential but legitimate sources of information, the MSC has provided such documentation in redacted form. All such material has been categorised in order to determine whether and what redactions should apply. To this end, DAC Akers has explained the detail of the process of receiving documents relating to the allegations of alleged payments to public officials. In such circumstances, documents which, in the first instance, have been redacted to remove confidential material, are provided to officers working on Operation Elveden. However, if, following this disclosure, the assessment of the evidence by the MPS provides a proper justification for identifying the source, the MSC will provide the information, this time in an unredacted form.67 In response to questions from Mr Jay, DAC Akers has sought to provide a sense of the scale and scope of the material disclosed by the MSC. She noted that this material related to allegations of data intrusion, including phone hacking, computer hacking and the illegal accessing of other personal data. Separately, it also contains material relevant to Operation Tuleta, which is now investigating over 100 separate allegations of data intrusion. The documentation provided has been sourced from previous inquiries, as well as the review of 70 electronic storage devices which were seized during both Operations Weeting and Elveden.68 Ms Akers has said that the evidence gathered amounted to between eight and twelve terabytes of data.69 Material of real significance has also been disclosed by the MSC to officers working on Operation Elveden, which appears to indicate that not only were routine payments made to public officials by some journalists working at the NoTW but that similar payments had also been made by the employees of The Sun. These payments are alleged to have occurred on multiple occasions and included large payments in figures of thousands of pounds. In her oral evidence, DAC Akers said that:70 There also appears to have been a culture at the Sun of illegal payments, and systems have been created to facilitate those payments, whilst hiding the identity of the officials receiving the money. The emails indicate that payments to sources were openly referred to within the Sun, in which case the source is not named, but rather the category public official is identified, rather than the name. 2.26 The consequence of this disclosure by the MSC has led the police to the investigation of those to whom payments were made. This has revealed evidence to suggest that the practice of payments to public officials, including police officers, may have taken place at other titles outside the NI titles.71 In her evidence to the Inquiry in July 2012, Ms Akers said that the MPS
2.23
2.24
2.25
66 67
p44, lines 3-4, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/lev270212am.pdf p3, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statement-of-DACSue-Akers1.pdf 68 pp9-10, paras 32-34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Third-Witness-Statement-ofDAC-Sue-Akers.pdf 69 To provide context, Ms Akers described a terabyte of data, in terms that if downloaded in the form of a kind of normal-size paperback, which is then piled on top of one another, Im told the terabyte amounts to three and a half times the height of Everest. p12, lines 9-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-23-July-20121.pdf 70 p48, lines 12-19, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/lev270212am.pdf 71 p6, para 21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Third-Witness-Statement-of-DAC-SueAkers.pdf
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had identified potential payments to individuals related to prison officials, made by staff at both Trinity Mirror Group (TMG) and the Express News Group (the Express). The MPS now believes that a number of stories published in the Daily Mirror, the Sunday Mirror, the Daily Star and the Star on Sunday, were obtained through such payments.72 As a consequence of this disclosure, an employee of TMG and an employee of the Express were arrested by officers working on Operation Elveden. This has led the police to seek the assistance of both those groups, requesting evidential material relating to these arrests.73 2.27 Although not relevant to the MSC, it is appropriate here to note that TMG and the Express have taken different approaches to the requests for information requests from the MPS. Specifically, TMG has asked the MPS to obtain a production pursuant to PACE which it is said will not be opposed; the Express has stated that the company would be prepared voluntarily to share documents through an agreed system, similar to that operated by the MSC; at the time of Ms Akers evidence, no such protocol had been put in place.74
A critical view of the MSC

2.28 Although the MSC operates independently of NI and News Corp, its independence has not gone unchallenged by some witnesses to the Inquiry. Brian Paddick, a former Deputy Assistant Commissioner of the MPS, has raised doubts over the ability of the MSC to conduct an impartial and transparent investigation. The fact that News Corp was responsible for the establishment of the MSC has led Mr Paddick to believe that the MSC was potentially susceptible to the influence of News Corp executives and staff, and that this alleged influence may have an impact on both its investigations and cooperation with the MPS.75 Mr Paddick also explained his lack of faith in the credibility in the system of disclosure. He expressed concerns that the MSC might withhold potential evidence from the MPS, particularly as the disclosure of material is voluntary, noting that reliance has been placed on cooperation rather than a production order sought pursuant to the legislative powers set out in PACE.76 Commenting specifically on the disclosure of evidence by the MSC in relation to the internal review of the practices at The Sun, Mr Paddick said that:77 The difficulty is and as she (Sue Akers) is saying, for example, all the issues that weve had around the Sun newspaper she never asked for. Its been volunteered by this committee. What information are they not volunteering that Sue Akers is not aware of? He also suggested that the MSC had an advantage in so far that it was potentially able to withhold material from the MPS investigations, by claiming journalistic privilege:78
2.29
72
pp6-7, paras 23-24, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Third-Witness-Statement-ofDAC-Sue-Akers.pdf 73 p7, para 26, ibid 74 p9, lines 9-16, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-23-July-20121.pdf 75 p20, lines 13-20, Brian Paddick, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/lev270212pm. pdf; pp23-24, para 63, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-BrianPaddick1.pdf 76 pp22-23, lines 19-3, Brian Paddick, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/lev270212pm. pdf 77 p21, lines 21-25, Brian Paddick, ibid 78 pp20-21, lines 17-1, Brian Paddick, ibid
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...whilst its maybe ... it is independent of News International, its not independent of the parent company, as it were requests are put in to this committee by the police. If that committee decides that actually, as far as theyre concerned, theres no criminal implications, that it is subject to journalistic privilege, then that committee does not reveal the information that the police are asking for. 2.30 Mr Paddick has also criticised the lead role of the MPS in the investigations of allegations of corrupt payments made to police officers, as well as public officials. He expressed reservations at the putative neutrality of the MPS, explaining that he feared that public perceptions risked becoming skewed by the fact that the investigation into the alleged corruption of MPS officers was being conducted by the very police force under investigation. Although Mr Paddick made specific acknowledgement of the integrity of both DAC Akers and the Commissioner of the MPS, Mr Paddick has made clear that he remained concerned that the MPS could not objectively investigate alleged corruption within their own force. He has suggested that an external police force, one which was not implicated in the current investigations, should have been appointed independently to investigate the alleged wrongdoing which has taken place. He told the Inquiry that:79 some people may not be convinced by the current arrangements and it may be better if it was an outside force who were investigating, purely from a public perception point of view. But I am not in any way casting doubt on either Sue Akers integrity, nor the head of the MSC 2.31 The suggestion was also raised during Mr Paddicks oral evidence that it would be difficult to find an independent force with senior officers who did not have previous experience at the MPS, but Mr Paddick maintained that this could be achieved, and that it would be better in terms of public perception if the MPS were unaffiliated with the investigation. He said:80 it is possible to find ACPO officers who have no previous history with the Metropolitan Police who could lead up this investigation. Whether they would be better at it, I dont know, but in terms of public perception, Im saying that it might be better. 2.32 Mr Paddick has also voiced concerns at the risk of collusive behaviour between the MPS and NI. Specifically, he was concerned at what could happen should the MPS investigations, or the MSC reviews of the NI titles, uncover evidence which placed either party in an unfavourable position in the public eye. He explained his concerns using a hypothetical example:81 perhaps somebody very senior in the Metropolitan Police is seen to be having received inappropriate payments from somebody very senior in News International, how it might be in the interests of Rupert Murdoch or News Corp and in the interests of the Metropolitan Police for that not to be made public. 2.33 Mr Paddick suggested that it may be possible for the MPS and NI to work together to disguise or hide incriminating evidence in order to protect the reputation of either organisation. In his response to questions from Counsel to the MPS, Neil Garnham QC, Mr Paddick remained of the view that he had difficulty in having complete confidence in the MPS investigations for the reasons he has elucidated.82 Although Mr Garnham was at pains to address a number of
79 80
pp22-23, lines 25-4, Brian Paddick, ibid p23, lines 15-20, Brian Paddick, ibid 81 p21, lines 10-15, Brian Paddick, ibid 82 p36, line 18, Brian Paddick, ibid
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external factors which would prevent such collusion, including oversight of Operation Elveden by the IPCC, Mr Paddick insisted that the investigation:83 should be led by a senior office from another force who has had no previous service with the Metropolitan Police. He also expressed his concerns about the independence of the IPCC but did not elaborate further. 2.34 DAC Akers has also addressed the concerns raised by Mr Paddick, by emphasising the fundamental importance of the professional and productive relationship the MPS has built with the MSC. She stressed that the independence of the MSC from NI and the structure it operates within:84 goes a long way to allay some criticisms that have been made about how its perceived that it cant be necessarily an independent inquiry. The fact that we are dealing with the MSC directly and not News International I think should make any contention that it isnt independent without foundation. 2.35 As testament to the important contribution that the MSC has made to the investigation, DAC Akers noted that, as at the date of her fourth witness statement, namely 31 October 2012, the disclosure of material to Operation Elveden had led to the arrest of 25 journalists out of a total of 52 arrests; this was in addition to 25 arrests made as part of Operation Weeting and 17 arrests as part of Operation Tuleta.85 In forming a view about these matters, I am primarily reliant on the evidence provided by DAC Akers (about whom nobody has spoken other than in terms of the highest praise) although I also have professional experience of Lord Grabiner and knowledge of his high standing as an independent barrister in England and Wales. Furthermore, I am able to draw inferences from the nature and extent of what has happened as events have unfolded. On the other hand, there has been no evidence to support the concerns raised by Mr Paddick, either as to the independence of the MSC or to the impartiality and integrity of the MPS officers responsible for the conduct of its investigation into alleged police corruption and other crime. The purpose of the MSC has been to re-establish (or establish) a reputation in NI as a company that takes its obligations to the law very seriously and is determined to root out criminality wherever it has existed and whomever it has involved, albeit recognising that some difficult decisions might have to be made in relation to journalistic privilege. In the light of events, neither News Corp nor NI can do less if the purpose is to be achieved. It is obviously important that News Corp, NI and the MSC continue in the resolve that has now been shown. I ought to make it clear that I am not at all critical of Mr Paddick for raising these concerns which I have no doubt are legitimate and ventilated in good faith, based on the history of this investigation and seared by his own experience both of NI and the MPS. For my part, however, I am fully satisfied as to the way in which the police are now conducting this investigation (to which considerable resources have been devoted doubtless because of the reputational damage that the MPS has suffered) and as to the integrity of the officers involved.
2.36
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2.38
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p37, lines 21-23, Brian Paddick, ibid pp41-42, lines 25-7, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/lev270212am. pdf; p2, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statement-of-DACSue-Akers1.pdf 85 pp4, 5, 12-13, lines 8-15, 17-24, 21-2, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/Transcript-of-Morning-Hearing-23-July-20121.pdf
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2.39
Equally, albeit without resolving the present differences between the MPS and the MSC, I have seen no evidence to undermine the view expressed by DAC Akers as to the independence of the MSC and its effectiveness as an independent arbiter in accordance with its remit. I am satisfied that sufficient safeguards (by way of protocols and otherwise) have been put in place to dispel legitimate concerns along the lines that he has raised.
Findings and progress of the MSC

2.40 On 1 May 2012, the MSC announced the completion of its internal reviews of the three NI titles, that is to say The Times, The Sunday Times and The Sun.86 Rupert Murdoch, in an address to NI staff, has been quoted in relation to the findings of the reviews of The Times and The Sunday Times, saying there was:87 no evidence of illegal conduct other than a single incident reported months ago. This single incident is thought to refer to the activities of the former Times journalist in relation to gaining unlawful access to one or more personal emails.
2.41
No further details have been announced in relation to findings of the internal review of The Sun. Neither has the MSC released further documentation to the MPS following the completion of its review of The Sun. DAC Akers put the matter in this way:88 the MSC would say the result of the review was the material that they had disclosed to us, but we havent received or -- I understand there is no formal report as a result of their review. Neither has the Inquiry heard any evidence in relation to the findings of the reviews conducted by the MSC. In the light of the quantity of evidence that has emerged from these titles and the evidence of DAC Akers, no further information has been sought.
2.42
In the meantime, the MSC has also begun to implement governance reforms in the newspaper titles at NI. These reforms include improving policies relating to anti-bribery, whistleblowing and payments. These changes have been implemented through the office of Gerson Zweifach and appropriate information relating to them has been disseminated to employees and staff at NI.89 The Inquiry has not heard any evidence relating to these specific reforms by the MSC, although Thomas Mockridge, Chief Executive Officer of NI, informed the Inquiry in October 2011 that:90 it is appropriate that compliance within NI be strengthened immediately. I have therefore not waited for the output of the reviews... I have implemented, or am in the process of implementing, new policies Current policies, practices and systems may be adjusted later in line with the findings of the reviews.
2.43
86 87
Finally, it is worth noting the costs of the MSC to NI have been borne by the UK subsidiary rather than by News Corp. From the Group Report and Financial Statement, as at 8 May 2012,
http://www.guardian.co.uk/media/2012/may/02/news-corp-standards-committee http://www.guardian.co.uk/media/greenslade/2012/may/01/rupert-murdoch-newsinternational 88 p11, lines 8-11, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-23-July-20121.pdf 89 p6, NI Group Limited Report and Financial Statement for 03 July 2011; http://www.guardian.co.uk/media/2012/ may/02/news-corp-standards-committee 90 p10, para 6.7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ThomasMockridge.pdf
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excluding any costs relating to the News International Compensation Scheme or ongoing civil litigation, the MSC has cost NI 53.2 million. These costs have been accrued primarily in legal and professional fees since July 2011.91 It is likely that, by the time of publication, these costs will have increased further.
91
p4, NI Group Limited Report and Financial Statement for 03 July 2011
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The Leveson Inquiry


4 volumes not to be sold separately Volume II

The Right Honourable Lord Justice Leveson November 2012 Volume II
HC 780-II
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J une 2010 December 2010: The Rt Hon Dr Vince Cable MP and the Department for Business, Innovation and Skills 21 December 2010: Dr Cables comments and the transfer of function D ecember 2010 July 2011: The Rt Hon Jeremy Hunt and the Department for Culture, Media and Sport News Corp and the Rt Hon Alex Salmond MSP Introduction The Deputy Prime Minister, the Rt Hon Nick Clegg MP The Leader of the Opposition, the Rt Hon Ed Miliband MP The First Minister of Scotland, the Rt Hon Alex Salmond MSP The Rt Hon Kenneth Clarke QC MP The Rt Hon Michael Gove MP The Rt Hon George Osborne MP Introduction The proprietors Too close a relationship Existing regulatory framework Recommendations for future relations between politicians and the press
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Chapter 1 | Introduction
parT F The CulTure, praCTiCes and eThiCs oF The press: The press and The publiC
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ChapTer 1 inTroduCTion
1. overview
1.1 Whether published every day, every week or every month, the press produce a vast amount of reading material covering an enormous range of topics. The daily and weekly papers will cover in no particular order news, politics, investigations, foreign affairs, business, sport, culture (including books, art, film and theatre), property, fashion, travel, motoring, personal finance, entertainment, TV and radio, games and doubtless other topics. There are features and opinions, gossip and jokes. They inform and they entertain and they do so very much in the public interest. The overwhelming majority of these topics are attractively covered in a way that undoubtedly appeals to readers. The reason that the Inquiry has not focussed on what is the overwhelming majority of the work of journalists is that, in the main, there is no public concern about the way in which most of these topics have been reported. The culture, practices and ethics of the press that are of interest to the Inquiry cover only one aspect of the way in which the press goes about its business. True, there could be arguments about the extent to which a travel journalist or food critic should inform the reader that he or she received a discounted or complimentary holiday or meal, but such issues are on the very edge of what the Inquiry has been concerned about. The focus, therefore, has only been on those areas which have been the subject of criticism; in particular, the way in which parts of the press can deal with individuals without regard to their rights and without regard to the public interest. It must be remembered that these are individuals who almost invariably do not have the same megaphone to defend themselves or put the contrary view. Most of the topics covered by the press will never trouble any regulator, whether it is the Press Complaints Commission (PCC) or someone else. As a result, the need for a regulator and the scope of its authority is not dictated by issues that arise from the vast majority of stories. But that is not the same as saying that there is no need for a regulator. Most doctors behave impeccably towards their patients but a regulatory mechanism is necessary for those who do not, whether on a serial basis or because of a single lapse. The need to examine the criticisms of the press inevitably focuses on those areas that cause difficulty so as to ensure that, whatever the answer to regulation is, it can deal with these issues. I am conscious that focussing on criticisms of the press will cause (and has, indeed, caused) many to criticise the Inquiry on the basis that it has been slanted to the poor practices and has paid insufficient attention to good practices. Piers Morgan, the former editor of the Daily Mirror, for instance, complained at the conclusion of his evidence that a lot of the very good things that newspapers have done and continue to do were not being highlighted by the Inquiry. He said it was like a rock star having an album brought out from his back catalogue of all his worst-ever hits.1 To some extent, that is the inevitable consequence of the Inquirys Terms of Reference and its focus on public concerns and complaints rather than on the successes and achievements of the press. During the course of the Inquiry, I made it clear that I did not believe that the culture, practices and ethics of the press were predominantly
1.2
1.3
1.4
p110, lines 10-22, Piers Morgan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-20-December-2011.pdf
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PART F | The Culture, Practices and Ethics of the Press: the Press and the Public
sub-standard or worthy of criticism. In my view the majority of editors, journalists and others who work for both the national and regional press do good work in the public interest, as well as entertaining their readers. I have no doubt that the press can take pride in most of its work. 1.5 However, good practices do not require a public inquiry and do not require regulation. They also take less time to define, describe and substantiate, and can be cast in a way that is entirely uncontroversial. It takes far more time and space to consider and analyse the extent to which complaints and criticisms are well-founded, and to identify the mechanisms that should be available to encourage all that is good while discouraging that which is properly capable of criticism. As a consequence, this important Part of the Report starts, at Chapter 2, with a recognition of the enormous value that the press plays in our daily life, and notes that for all of the examples of poor practice cited below, there are many more examples of good practice. However, having said that, the rest of this Part of the Report focuses on the concerns and complaints that have been made and expressed, along with the ways in which they have or have not been adequately addressed. It would be entirely wrong to view the number of words expended in this Report on the good versus the bad as reflecting any overall judgment. The nature of my task is to focus on those aspects of press culture, practices and ethics (even if in small pockets) which leave something to be desired. Inevitably, the focus is overwhelmingly on poor practice rather than good.
2. Module one and the Terms of reference F

2.1 This Part of the Report examines the evidence the Inquiry has received relating to the Press and the Public, in other words, the first of the four modules into which the work of the Inquiry was conveniently allocated. The Terms of Reference do not specifically mention the public (cf. politicians and the police) but it is obvious that any inquiry into the culture, practices and ethics of the press must investigate all the respects in which press conduct and behaviour (nouns which do appear in the express wording) impact on those who feature predominantly in the work of newspapers, in other words the public. Indeed, owing to the nature of the concerns which directly triggered the setting up of the Inquiry, I decided to bring the public into the heart of the first module. The relationships between the press and the police, and the press and politicians, naturally give rise to slightly different issues which could best be addressed after Module One. The terminology the culture, practices and ethics of the press was the subject of analysis by Counsel to the Inquiry in opening Module One in November 2011, and submissions by the Core Participants. The analysis of Robert Jay QC was as follows:2 It may be helpful to take those three terms together. We are looking at practices which may be widespread rather than isolated and sporadic. Practices which may be widespread, insofar as they are bad practices, may well flow from systems which are broken and/or from attitudes and mores which are dysfunctional. The more we may see patterns of behaviour and practices which are generic, and the more widespread they are, the more it may be possible to infer the existence of broken systems, dysfunctional attitudes and mores; and, overall, the existence of a culture which tends to explain why these problems are occurring in the first place.
p19, lines 3-14, Robert Jay, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-MorningHearing-14-November-2011.pdf
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2.3
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2.4
Further, in my ruling on the Application of Rule 13 of the Inquiry Rules 2006, I said this:3 Turning from the general to the specific, it is first necessary to consider the Terms of Reference which clearly visualise the press as capable of being a sufficiently homogeneous group to allow analysis of its culture, practices and ethics even if (as is undoubtedly the case) different titles and different types of newspaper will or may exhibit different or slightly different approaches to them. Nobody, however, has suggested that the legal or ethical approach should be different even if the pressures, the likely impact of ethical considerations on the type of story sought and the willingness to take risks might be. Having said that, it is clear that an isolated act of criminal or unethical behaviour would not, of itself, represent the culture or constitute a practice of the press. Subject to a practice being sufficiently widespread to constitute evidence of a culture or practice of the press, however, there is no question of it being necessary to quantify that practice and, in any event, I will need to consider the extent to which the picture is built up inferentially and cumulatively.
2.5
These broad interpretations, which in my view make the same points in different ways, have been my guiding principles throughout this Inquiry. Thus, the endeavour throughout has been to focus on the generic or, more precisely, what might on first examination be evidence bearing on the culture, practices and ethics of the press overall. On occasion, I have come to the conclusion that evidence which had the appearance of exemplifying this core issue within my Terms of Reference did not, in fact, demonstrate any generic failing, but rather was indicative of the isolated or wayward. On other occasions, I have rejected the submissions of Core Participants that I should conclude that some failing was a one-off and have decided that it was, in fact, illustrative of a wider problem. Throughout, I have had regard to a possible broader picture without pre-judging the issue: whether or not a piece of evidence is truly part of the jigsaw has depended on assessing that evidence in its own terms and then more widely; but the point to be reiterated and fully understood is that the shape and nature of the jigsaw did not come into sharp and clear relief until the end of the Inquiry, after all the evidence had been assessed and analysed. There are three further points I would like to make at this stage. First, although I recognise the inherent difficulties, there are clear practical reasons why the press should be considered as a broad entity rather than as a series of individual print titles. This, as I have already stated in my ruling of 1 May 20124, is not the same as saying that the culture at each newspaper is exactly the same. Journalists move from newspaper to newspaper, and the commercial pressures I explore below are similar across the industry as a whole; I recognise that some newspapers are more profitable than others and that newspapers vary in respect of the sort of stories they like to print. Furthermore, the industry is fairly closely-knit in the sense that newspapers competing with one another tend to have a fair idea of what their colleagues or competitors are up to. Second, although the Terms of Reference are not worded so as to pre-judge the issue, it is clear that those who participated in their formulation were of the view that the culture, practices and ethics of the press left something to be desired. Thus, paragraph 1d of the Terms of Reference refers to media misconduct (in the context of previous warnings), paragraph 2a to a new more effective policy and regulatory regime (implying that the existing regime is ineffective to address the problem), and paragraph 2b to future concerns about press
2.6
2.7
para 46, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Application-of-Rule-13-of-the-InquiryRules-2006.pdf 4 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Application-of-Rule-13-of-the-Inquiry-Rules-2006. pdf
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behaviour (implying that press misbehaviour is a current concern). Plainly, the Terms of Reference require me to describe and characterise press conduct and, where appropriate, to identify causes: in other words, fully to diagnose the problem before potential solutions and remedies are recommended. Given what had been revealed at the News of the World (NoTW), that may not be surprising but it is important to underline that I have approached this exercise with an open mind, and not on the basis that the explicit and implicit premises of the Terms of Reference do not require independent validation by me. 2.8 Third, and a point which again flows directly from an examination of the Terms of Reference, my recommendations must support the integrity and freedom of the press...while encouraging the highest ethical and professional standards (paragraph 2a). It is clear from this language that the Inquiry must do its best to foster a free press which has integrity as well as ethical standards: indeed, the highest ethical and professional standards. Many commentators have focused on the importance of a free press (which I would be the first to recognise and uphold) without any reference to the need for an ethical press to possess integrity. These are demanding standards and require ethical judgments to be made at all material times: merely to broadcast the values of freedom is seriously to overlook a complementary and equally important set of values, and to run the danger of creating or permitting that which is undesirable and not in the public interest. In my view, the unification of these twin requirements freedom and ethics is not an impossible aspiration: both may co-exist in the same press, working in harmony and in cooperation with each other. But the recognition of the need for an ethical press inevitably carries with it the recognition of the need for a responsible press, which respects the rights and interests and others, and which does not regard freedom as the ultimate panacea or touchstone for its mores and conduct. As a final point, I should note that many of the arguments made in respect of the rights or wrongs of the practices and ethics of the press can turn on ones view of the amorphous concept of the public interest. Many otherwise unethical practices may be made ethical simply by virtue of the fact that they are justified, in the circumstances, in the public interest. For example, covert surveillance and photography of an actress playing with her children in a private garden is almost certain to be unethical; by contrast, the covert surveillance and photography of drug dealers supplying heroin (in the equivalent of a back garden) is almost undeniably ethical and entirely in the public interest. As such, the Terms of Reference do require me, when assessing the culture, practices and ethics of the press, to engage in questions relating to the public interest. There can be many reasonable views of what is, or is not, in the public interest. In line with judicial authority, it is not for me to impose my own conception as the correct and only one: the judgment of editors and journalists should be given significant weight.5 But that does not mean that journalists and editors have free rein to define the public interest however they choose. It is clear, as most (but not all) have fully recognised, that the public interest is something quite different from simply what interests the public.
F
2.9
2.10
3. evidence in Module one of the inquiry

3.1 Module One sat for 40 days between 14 November 2011 (when Mr Jay opened the Module)6 and 9 February 2012, closing with supplementary evidence from Paul Dacre. However, as I
5 6
see for instance Flood v Times Newspapers 2012 UKSC 11 http://www.levesoninquiry.org.uk/hearing/2011-11-14am/ http://www.levesoninquiry.org.uk/hearing/2011-1114pm/
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have explained, the modules do not form hermetically sealed caskets and further evidence relevant to Module One was adduced at later stages. 3.2 The body of evidence received by the Inquiry is vast, both in terms of its volume and scope, and it will not be possible to deal with all of it in this Report. To do so would create a sprawling and overly cumbersome narrative which would imbalance the Report as a whole, lack appropriate focus and, in consequence, fail to do justice to the Terms of Reference. Instead, I adopt a more focused, thematic and analytical approach which serves to find the right balance between indiscriminate citation of the evidence on the one hand and overly boiling down the material on the other. My overriding goal is, and always has been, to set out a sufficient narrative which enables everyone to understand the basis of my generic conclusions in relation to the culture, practices and ethics of the press; and, even more saliently, my recommendations as to a new regulatory regime. Even adopting this more tailored approach, I recognise that there will inevitably be elements of duplication and overlap. This is largely for two reasons: first, certain pieces of evidence may be relevant to more than one generic conclusion, and second because there is more than one way of approaching, narrating and analysing the key elements of the story. My different angles of approach will sometimes require me to recruit the same evidence for slightly different purposes. Module One saw evidence given by a range of people, chosen to provide as complete a picture as possible on the relationship between the press and the public. Those witnesses broadly fell into categories as described below. First, the Inquiry heard from 21 witnesses from across British society, each with a different personal story to tell about their adverse treatment by parts of the press. As more fully explained below, some of the witnesses may fairly be described as celebrities; others were individuals who would challenge that characterisation and say that they do not seek out fame or media celebrity as such but find their way into the public eye only because they are good at what they do (whether it be acting, singing, writing, playing sports); others have featured in the press because they are unfortunate enough to be the victims of crime, or otherwise have been associated with notorious crime; and yet others have been ordinary people who have attracted press interest for whatever reason. Thus, the witnesses occupied a disparate range of occupations and social groups, and no one could fairly say that they were all celebrities, still less that they openly courted publicity and should therefore accept the rough with the smooth. Although most witnesses were required both to make statements and to give evidence by reason of a notice issued under s21 of the Inquiries Act 2005, these witnesses (all of whom were speaking about intensely personal experiences) were not. They were self-selected from among the Core Participants who complained about press intrusion. As I have made clear, in the main, their evidence was not subjected to detailed probing by Counsel to the Inquiry and, in accordance with my direction, there was no cross-examination by the other Core Participants, although they did suggest questions (which Counsel generally then felt it appropriate to ask) and were, additionally, allowed (if not encouraged) to put in evidence in rebuttal if so advised. Accordingly, the Inquiry recognises that some of this evidence was not fully tested for its reliability and credibility in a manner which would have been appropriate had it been essential to reach findings of fact at a granular level. Nonetheless, nobody has suggested that the majority of the evidence received by those witnesses was anything other than reliable and so, as a whole, it casts important light on the broad issue of the culture, practices and ethics of the press.
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3.6
Second, the Inquiry heard evidence from journalists and commentators who had written about their experience of the culture, practices and ethics of the press. Those critical of press standards included Richard Peppiatt, a former journalist, and Alastair Campbell, the former Director of Communications for No 10. At the other extreme end of the spectrum was Paul McMullan who rejoiced in an anarchical view of the approach to any standards within the press. In the middle, there were others whose evidence, on the face of their witness statements, was more favourable to the press, but who also needed to be probed and tested not least as they moved away from prior published statements on the subject matter. Witnesses in this category included Mr Morgan and Sharon Marshall, a former journalist with the NoTW. Third, the Inquiry heard evidence from each of the national titles in England and Wales, some magazines and similar publications, and also from a sample of regional titles and those publishing in the devolved administrations. In the time available it was not possible to do other than hear from a representative sample of journalists in order to give me a flavour of the position, although it should be recorded that the Inquiry did hear in person from virtually all the national newspaper editors and proprietors (albeit that the timing of the evidence of many of the proprietors was at the start of Module Three not least because they had a number of topics to cover and I wished to ensure that they did not have to appear at the Inquiry more than once). Aside from being asked to elaborate on the key points made in their detailed witness statements, editors and journalists were asked to address and comment on examples of the culture, practices and ethics of the press which had come to the Inquirys notice, some exemplifying ostensibly good practice, others less good. Inevitably, the Inquirys most detailed consideration was reserved for what may be called the really big stories, some of which are addressed as exemplifying facets of the culture, practices and ethics of the press below.7 Equally inevitably, the Inquiry in these instances heard evidence from the journalists and editors involved: as was made clear at the time, and I reiterate, the purpose of doing this was not to subject the journalists in particular to personal censure, but rather to examine what they did (and did not do) for the light it was capable of throwing on the general picture. That said, I fully understand that the experience of giving evidence before a televised public inquiry could not always have been a pleasant one for the press witnesses concerned: the Inquiry is grateful for their contributions, and notes that, on all occasions, witnesses were treated with courtesy and consideration. Fourth, the Inquiry also received evidence in Module One from those involved in electronic media and the internet, with a view to seeking to understand the specific challenges presented to press regulation generally by the existence of the worldwide web and the burgeoning range of possibilities created by new technology. Fifth, the Inquiry heard evidence from a number of special interest groups bringing different perspectives to my deliberations. First, there was a range of groups, such as Trans Media Watch, ENGAGE and End Violence against Women, who complained about unbalanced reporting in the press of issues concerning them, and of the failure of the PCC to address their concerns. Second, there were other groups, such as English PEN and Index against Censorship, who came to the Inquiry with particular perspectives on Article 10, free speech and public interest issues. Third, there were organisations such as Full Fact and the Science Media Centre, concerned about inaccuracy in press reporting, either generally or in a specific context. This list is not exhaustive, either of the groups who testified or of the issues they covered, but it provides a flavour of the range of evidence the Inquiry has been asked to
3.7
3.8
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3.10
Part F, Chapter 5
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take into account: a considerable body of other evidence to like effect but affecting other interested or concerned groups was read into the record of the Inquiry. 3.11 Sixth, the Inquiry heard from those with experience in the Press Complaints Commission (PCC) and the Press Board of Finance (PressBof), covering the existing system of regulation of the press and proposals for the future. The Inquiry heard from the past and current directors and chairs of the PCC, and the current chair of PressBof, Lord Black. The present chair of the PCC, Lord Hunt, assisted the Inquiry with the then current state of play regarding the industrys proposals for self-regulation within a new contractual framework, and he returned to update me on this topic in Module Four. Finally, a different perspective on the approach to stories came from the Information Commissioner and the police. As for the Information Commissioner, the evidence from Operation Motorman provides a window on the way in which some journalistic investigations were conducted or information researched (albeit without the knowledge of those affected). Its significance is such that it is summarised in Part E, Chapter 3; the position is then subject to separate analysis in Part H. As for the police, their investigations are detailed in Part E, Chapters 2, 4 and 5. This short summary scarcely gives the full flavour of the scope, range and scale of the evidence the Inquiry received during the first 40 days of its sitting. The live oral evidence, accompanying witness statements and exhibits, and the read-in evidence, including all the documentary evidence and submissions, add up to a very substantial mass of material, all of which has been sifted, read, considered and analysed with a view to drawing the Inquirys generic conclusions. Recognising that this burden of material only represents a small proportion of the evidence which might have been adduced had time and resources been greater, I should nonetheless record that I believe that the evidence that has been received is sufficient in terms of its quality and quantity to enable me to discharge my Terms of Reference.
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3.13
Evidence from the Public

3.14 As set out above, the Inquiry heard evidence of unethical and damaging press behaviour from a broad and representative cross-section of society. Witnesses to the Inquiry have included: individuals with a public profile; the victims of crime and indeed those incorrectly accused of criminality or other wrong-doing by the press; innocent bystanders to events; and individuals who may themselves be of no obvious in interest to the wider public but for their connections to the types of person set out above. These individuals have contributed to the Inquirys work either by formally testifying in person or through witness statements which were read in to the Inquiry record, or through the mechanism of informal submissions to the Inquiry from ordinary members of the public made in response to questions published on the Inquiry website. I recognise the obvious limitations inherent in this latter category of evidence and, whilst appreciating the contributions which have been made, do not place independent reliance on this informal material. It is wrong to suggest that the public are somehow homogeneous, or that (as some commentators have suggested) the Inquiry has only heard the complaints of the rich and famous. This is not the case: the spectrum of people who claim to have been the victims of unethical or damaging behaviour by the press and have given their personal accounts to the Inquiry is broad.
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People with a public profile

3.16 People with a public profile can be visualised in different ways, depending mainly on how that profile arises. Evidently, there are those who occupy positions of power and responsibility in our democracy and who, by virtue of these functions, legitimately attract the interest of the press. Everyone can readily understand and appreciate who falls into this first category but, for my part, it is interesting to ask whether press proprietors and editors should be seen as being part of that group and, if so, how much press attention they personally attract. It should also be emphasised that what I have described as the legitimate interest of the press should not be understood as a carte blanche to look everywhere: the publics right to know is circumscribed by the subject-matter, and a correct appreciation of what the public truly has a right to know about. People with a public profile also includes those who have become famous as a consequence of their success in their chosen career or profession. This second sub-group includes (in terms of those who have testified before me): footballers, such as Garry Flitcroft; musicians, such as the singer Charlotte Church; as well as film and television stars such as the television presenter, Anne Diamond, and the actors Sienna Miller and Hugh Grant. These are all individuals in whom the public is interested as a consequence of the success they enjoy in their chosen walks of life, but they are also individuals whose private lives are largely unrelated to their professional lives and their careers. As has been frequently pointed out to the Inquiry by the press Core Participants, some within this sub-group, but none of those mentioned above, have sought commercial advantage from displaying a particular brand or persona before the public, or have made representations about themselves for direct or indirect advantage. But one does need to be clear about this, because just as the freedom of the press has been pronounced by some as a mantra which conquers all, so has hypocrisy been used indiscriminately in support of unjustified intrusions into the private lives of the famous and the successful. By way of illustrating, but not at this stage analysing the point, Mr Grant told the Inquiry:8 ... I wasnt aware I traded on my good name. Ive never had a good name. And its made absolutely no difference at all. Im the man who was arrested with a prostitute and the film still made tons of money. 3.19 3.20 Further, the writer JK Rowling also told the Inquiry that she most emphatically does not seek fame or to benefit from her public persona, yet is still the subject of intense press interest.9 This category of people with a public profile also includes a third sub-group: individuals who are famous only for their celebrity, or put another way the mere fact of their having entered the public eye. These people are those who actively participate in the celebrity industry, actively pursuing publicitys sake, employing publicists to provide a steady stream of stories to the press and to inform paparazzi of their whereabouts, in order to ensure that they continue to appear in the public eye. This sub-group might reasonably be said to include, for example, some stars of reality television. Certainly in these cases, where the fame of the individual is linked to their exposure to the public through the press and other media, the relationship between individual and the press, and what is acceptable and what is unethical, is more nuanced. In such cases the public interest in what might otherwise be private matters may
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p86, lines 17-19, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Afternoon-Hearing21-November-2011.pdf 9 p41, lines 2-8, JK Rowling, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-AfternoonHearing-24-November-20112.pdf
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well be stronger and the nature of what can and cannot be considered private may be more difficult to determine.
Victims of crime
3.21 Members of the public who have been at the receiving end of unethical behaviour by the press also include the victims of crime and individuals who have been linked, either directly or indirectly, to crimes. To an extent this level of scrutiny is understandable as crime remains a key concern for the public and indeed much crime reporting is of the highest standard. However, the Inquiry has heard evidence in relation to some crime reporting, by a number of newspapers, that is alleged to have fallen far short of acceptable standards of behaviour in terms of inaccuracy and intrusiveness, sometimes giving rise to concerns of the risk of prejudicing subsequent criminal proceedings and, in relation to those who are already the victims of crime, causing considerable additional harm and distress. This category of individual includes those who have been harmed emotionally as well as suffering damage to their reputations, such as Drs Kate and Gerry McCann whose daughter Madeleine disappeared when the family was holidaying in Portugal in May 2007. The subsequent coverage of Madeleines disappearance included libellous and highly inaccurate articles in a number of newspapers, particularly in The Daily Express which made a number of allegations about the entirely unproven role of Drs Kate and Gerry McCann in the disappearance of their daughter.10 This sub-category also includes the parents of the murdered school girl Milly Dowler. Bob and Sally Dowler were subjected to an unwarranted barrage of intense and intrusive media attention.11 Aside from the well-publicised matters which led to the setting up of this Inquiry, moments of intense private grief were captured by photographers and published in the NoTW.12 These high-profile cases are far from isolated examples. The Inquiry also heard evidence from the parents of Diane Watson, who was murdered at school in Glasgow in 1991. In their evidence to the Inquiry, Mr and Mrs Watson not only raised the issue of unwarranted and indeed intrusive press attention but also, like the McCanns, pointed to the highly inaccurate and sensationalised reporting around their daughters death.13 Such intense press interest is not restricted to the victims of crime but also extends to those who have been linked to, or wrongly, accused or suspected of committing, crimes. Christopher Jefferies was arrested in relation to the murder of the student Joanna Yeates at the very end of 2010 but subsequently was released without charge; he was not merely cleared of any wrong-doing but proved to have been a victim himself, the subject of disinformation by the killer intent on avoiding his own responsibility. However, as more fully examined below,14 during the course of the investigation, Mr Jefferies was subjected to a protracted campaign of vilification in the press. This saw a significant number of libellous allegations made by a
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pp31-32, lines 16-19, Gerry and Kate McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Transcript-of-Afternoon-Hearing-23-November-2011.pdf 11 pp74-75, lines 13-4, Bob and Sally Dowler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Transcript-of-Morning-Hearing-21-November-2011.pdf 12 pp12-13, lines 16-14, Sally Dowler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-21-November-2011.pdf 13 pp97-98 passim, Margaret Watson, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-22-November-20111.pdf 14 Part F, Chapter 5
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number of newspapers, including The Sun and the Daily Mirror; both of which were later held to be in contempt of court. Indeed, so intense and unpalatable was this press attention that Mr Jefferies was forced to leave his home and change his appearance.15
Innocent bystanders
3.26 It is not only individuals with public profiles and the victims of crime who have been the subject of intense press scrutiny and potentially unethical and damaging reporting. There are also many other ordinary members of the public who have complained of unwarranted press attention in a number of different respects. In particular, the Inquiry heard evidence from a number of organisations representing minority, community and societal groups alleging that individuals within those groups, or the groups themselves, have attracted inaccurate and discriminatory press interest. By way of example only, I have already mentioned Trans Media Watch, a charitable and support organisation which represents the interests of members of the transgender community by in particular monitoring the quality of reporting of newspapers on transgender issues. Their basic complaint, which will be examined in greater detail below,16 is that transgender people are subject to disproportionate and damaging press attention simply by dint of being members of that group, rather than in consequence of anything they might have said or done, and because of what they describe as an obsession in parts of the British press with outing members of the transgender community.17 Individuals who fall into this category do not consist only of members of pre-formed groups. The category also extends to individuals who may find themselves at the centre of damaging media attention, such as the families of suicides and also suicide victims themselves. The Inquiry has heard evidence of intrusive and damaging press attention directed at the grieving families of suicides. In evidence to the Inquiry, the Samaritans describe the damaging and intrusive nature of press reporting of the suicides of a number of young people in Bridgend over a six month period in 2007 and 2008.18 During this time, it is argued, the relatives of some of these young people were not only subject to, sensationalised reporting which propounded unfounded speculation that they were linked through a cult or death pact, but also turned their relatives into the subject of newspaper stories.19
3.27
Those with links to the above

3.28 The last category of person to be considered here is broader and perhaps more nebulous; it covers those who have become the subject of press speculation and attention as a consequence of the links they may have to those groups or types of people described above. Included in this category are people like the parents of the singer Charlotte Church, who have been subject at times to intense press attention and a substantial number of intrusive and hurtful newspaper articles.20 Media interest in the parents of Ms Church clearly has more to do with their relationship to their famous daughter than their own actions: such interest would not have arisen otherwise. Another is the mother of Hugh Grants daughter and,
pp18-19, lines 25-6, Christopher Jefferies, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Transcript-of-Morning-Hearing-28-November-2011.pdf 16 Part F, Chapter 6 17 pp56-57 passim, Helen Belcher, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-8-February-2012.pdf 18 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Submission-by-Samaritans.pdf 19 p3, ibid 20 pp22-23, lines 9-7, Charlotte Church, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-28-November-20111.pdf
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indeed, her mother. Finally, there are the innocent bystanders, such as Mary-Ellen Field, who are not even targeted or explicitly written about but become collateral damage because of the suspicions generated by subterfuge.
4. The structure of part F of the report

4.1 Turning to the overall contours and direction of this Part of the Report, Chapter 2 summarises my own assessment of the evidence of good press practices, and reflects my view that the press can take pride in most of its work. However, even if the examples of good practice represent the vast bulk of the way in which the press works, it cannot be said that there is no cause for concern. Chapter 3 moves to summarise the aspects of press practices which have given rise to complaint and concern. Standing back from all the evidence that the Inquiry has received over the past year, it is possible to discern a number of common themes or complaint headings which are set out in summary form in this Chapter before the further analysis which follows. Chapter 3 also summarises the nature of the harm suffered by individuals and by the public at large as a result of unacceptable press practices. It is necessary to assess the impact of unethical press practices in this way because the benefits of a free press cannot be assessed in isolation from other considerations: if a free press amounts to a press which, to a greater or lesser extent, fails to adhere to proper standards of behaviour, the consequences need fully to be understood. Nobody denies that the poor practices identified in Chapter 3 exist in some form or other, although there may well be arguments or debates about the extent to which they prevail (if at all) in individual titles. It must be remembered, however, that this is a qualitative assessment based on more than the odd or exceptional example (what is happening?) rather than a quantitative assessment (to what extent and in what particular titles?). When considering the success or otherwise of a regulatory regime, that must be the starting point. It is also why the submission made by some individual titles (that the conduct of which complaint is made cannot be brought home to them) simply misses the point: I am required to consider the press as a whole and the fact that any particular title (if it be the case) may never engage in the practices of which complaint is made is irrelevant. Chapter 4 is devoted to the culture at the NoTW, in respects beyond the practice of phonehacking which is addressed elsewhere. I dedicated a week of Inquiry time to this topic in December 2011, and, on other occasions, witnesses such as Paul McMullan and Sharon Marshall testified in somewhat different ways to the culture at that now defunct title. Given that the goings-on at the NoTW were the immediate trigger to the setting up of this Inquiry, it is appropriate to devote a whole chapter to this issue. Chapter 5 takes a series of what I am calling case studies in truth, some of the most egregious stories the Inquiry examined in Module One as exemplifications of the unethical press practices which underpin the core generic conclusions reached in the following chapter, Chapter 6. Accordingly, the case studies should be read not as random or individual instances of sub-standard press practice but as the exemplars of a wider problem. The fact that a title or a journalist is either necessarily identified or is capable of identification in a case study should not be taken as meaning that I am seeking to place that title or that journalist in a different category to those responsible for other examples of poor practice given in evidence to the Inquiry.
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4.6
In Chapter 6 I seek to evaluate and analyse, in detail, the evidence of press practices which have given rise to concern, and to come to what may be called generic conclusions about the culture, practices and ethics of the press from this critical stand-point. Inevitably, this is a lengthy chapter. Not merely is the evidence voluminous but the issues which arise from it are complex and multi-faceted. I should emphasise that in reaching the conclusions I do, I have paid very careful regard to all the evidence the Inquiry has accumulated as well as the Core Participants helpful submissions. Finally, in Chapter 7, I draw overall conclusions and seek to identify some of the drivers for unethical practices within parts of the press. Those drivers include the impact of commercial pressures in a shrinking newspaper market; the specific employment context in a number of newspaper titles; and inadequacies in internal governance and leadership at individual titles. Ultimately, the Chapter concludes with a recognition that the unethical practices identified throughout the Report require both cultural, as well as systemic, changes within newspaper titles. While these changes must come from within newspaper groups, they must also be monitored and enforced by a robust and empowered regulator.
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Chapter 2 Good praCtiCe

1. the value and virtues of the UK press
Overview
1.1 This Chapter of the Report will examine what is far too easy to take for granted, namely that in so many important respects the press is a force for good in British society. This issue is capable of being analysed in a number of ways. The first two concern over-arching issues relating to society as a whole. Thus, the very existence of a free press is invaluable in the sense that societies without such a press are invariably totalitarian regimes which do not and cannot, countenance the type of scrutiny which only an untrammelled Fourth Estate is capable of applying. Second, as many Core Participants have pointed out, a free press is the lifeblood of a mature democracy: it is an invaluable medium for the representatives of the people to get their message across, and an equally invaluable means both of examining the political message and holding the messengers to account.1 The second type of analysis is more pragmatic but no less important; however many times it was repeated during the course of the Inquiry, it continues to require emphasis. Most of the work of the press represents good practice rather than bad. Broadly speaking, stories are accurate, informative, well-written and respectful of the rights and interests of others. Further and additional to that point, it is equally important to underline that the press carries out a valuable role in entertaining its readers according to their tastes and interests: indeed, if it failed in this important respect, readers would desert to other newspapers or other forms of media, including the array of electronic media currently available and ever burgeoning, as their preferred means of obtaining information. These features lead to a further point which it is relevant to make in this context (as well as in other places). However cheap and easy access to online aggregated material, blogs and tweets might be, it is to those whose business is the collection, collation, accurate presentation and analysis of news, related commentary, current affairs, sports, fashion and entertainment (to name but a few) that the public look for informed views. Those who are in that business are called journalists and whether they produce their content in print or online, it is vital that their work continues to be trusted and recognised for the good that, in the main, it does and for the very important contribution that it makes to our society.
1.2
1.3
Existence of a free press: its intrinsic value

1.4 The submissions of News International have reminded the Inquiry of an exchange in Sir Tom Stoppards satire on the British news media, Night and Day, published in 1978. Milne says to Ruth: No matter how imperfect things are, if youve got a free press everything is correctable, and without it everything is concealable. Ruth replies: Im with you on the free press. Its the newspapers I cannot stand.
These concepts are discussed in greater detail in Part B Chapter 1 concerned with the importance of a free press and freedom of speech
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1.5
The point is rightly made that freedom of the press is essential to a free society, and one of the key hallmarks of societies which are not free is the absence of a free press.2 Arguably, the point can be taken even further: there is a close correlation between press freedom on the one hand and the extent to which a society may be seen as being open and free on the other. And this is not simply a matter of journalists, editors and proprietors not being held in the thrall of the Executive: press freedom requires the press to discharge their important responsibilities by being ever-questioning and ever-vigilant, if necessary noisy, iconoclastic, irreverent and unruly. It remains to be considered whether, as has been suggested, it is these same instincts which may from time to time cause the press to be led astray. Accordingly, the existence of a free press is valuable in itself and not merely for all the benefits it carries with it. It is noteworthy that not one witness suggested anything to the contrary, and that virtually all the witnesses who had come to tell their personal stories of press misconduct were at pains to explain that they believed in the value of a free press in its own right. Being free, however, is not the same as insisting on a free for all without any accountability of any sort.
1.6
Preponderance of good practice over the bad

1.7 Although the point has already been made that the Inquiry is not in a position to quantify reliably the amount of bad practice perpetrated by the press over the years, and furthermore does not need to do so in order properly to reach conclusions about the culture, practices and ethics of the press, or a section of the press, the converse is not the case: in other words, the Inquiry is able to state with confidence that the majority of press practice is good, if not very good. The evidential foundation for this conclusion is clear. First, there is the convergent evidence received from numerous witnesses over the course of the hearings. Second, there is the weight of evidence coming from the press Core Participants. Finally, the Inquiry has been able to make its own assessment of the overall quality of the work of the press over a number of decades: this is based upon its own reading, assisted in this context by the knowledge and experience of the Assessors. Given the quantity of newspaper print produced up and down the country day in and day out, no doubt running to thousands of pages, it should be obvious that, if the work of the press was not predominantly acceptable, the volume of complaints and litigation would be orders of magnitude greater than they have been both historically and more recently. The Sun has provided the Inquiry with some hard data which supports this point.3 A large issue of The Sun may contain 104 pages and 300 individual items, or even more, adding up to nearly 100,000 items over the course of a year. Of this total, fewer than half a dozen a week will result in a complaint to the PCC. Even recognising that stories are not always based on issues that could give rise to complaint and that, even if they do, many of those who might have wished to complain do not do so (whether out of disenchantment with the PCC or a reluctance to take on a large and powerful newspaper group), these statistics provide some overall support for the proposition that most press practice is good. This reference to good practice is intended to cover the work of the press generally, not just the work of news desks producing hard or serious news. For the avoidance of doubt, here
1.8
1.9
In the famous words of John Wilkes MP writing in the mid-C18th, The liberty of the press is the birthright of a Briton, and is justly esteemed the firmest bulwark of the liberties of this country 3 p13, para 5.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/08/Submission-from-The-Sun-inresponse-to-Inquiry-questions.pdf
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Chapter 2 | Good Practice
the Inquiry has in mind the work of those writing and producing the comment, opinion and editorial sections of newspapers; the sports pages; the show business and entertainment pages; the features pages; the business and personal finance columns; the crossword and games pages etc. This list is not of course exhaustive, and will vary from print title to print title, but the general point needs to be reiterated and reinforced. 1.10 Further, the term good practice is also intended to cover a number of different facets of journalistic practice. First is the means by which the material for stories is obtained, investigated, researched and tested for its accuracy. Second, there is the intrinsic interest, variety, imagination and quality of the stories, varying according to the tastes and interests of the newspapers readers. Perhaps the most compelling way of making this point is to record that the majority of newspaper content is stimulating and entertaining for its readers, recognising always that reader X may buy a particular paper for its sports coverage whereas reader Y may be more interested in its comment sections. Public taste is eclectic, but newspapers are extremely adept in attuning themselves to the viewpoints and various interests of the majority of their readers. It is not inconsistent with the recognition that most of press practice is good that journalists and editors will sometimes make mistakes, including errors of fact and of judgment. Sources, even multiple sources, may simply be wrong in a particular case, however right they might usually be; journalists might be misled by apparently reliable sources or websites putting out incorrect data and information; errors and slips may be made in the heat of the moment, in order to meet a particular deadline; editorial judgments may be incorrect in a specific instance notwithstanding that they may usually be entirely sound. Mistakes of this sort are made in every walk of life and are part and parcel of the human condition: depending on all relevant factors, they may be entirely consistent with good press practice. But whether or not they exemplify good or bad practice at the end of the day will depend on matters such as systems for checking information and sources, and the press response when the error is pointed out, including press willingness to engage with the complainant and sort things out as quickly as possible. There are two aspects of press practice which merit particular mention. First, Lionel Barber, editor of the Financial Times, emphasised in his evidence that the reputation of his paper depended on getting the story right. In the context of financial reporting it may readily be understood that accuracy has a special premium, or rather that inaccuracy can be especially damaging, but the same general point may fairly be made in relation to the press as a whole. Newspapers trade on their reputation; their commercial success ultimately must rest upon the reputation they build for honesty, reliability and accuracy. This goes beyond the discussion of serious issues of politics or current affairs. A reader passionately interested in football, for example, will think twice about paying the cover price if the paper of his choice consistently gets it wrong in relation to stories of interest to him or her.4 Further, the reader will come to learn in due course whether stories are true or false. It flows from this that newspapers have every incentive to be as honest, reliable and accurate as they can. Second, the Inquiry recognises that journalists often work under the pressure of deadlines, and in such circumstances simply do not have the luxury of triple-checking sources or satisfying themselves to the point that they are sure beyond reasonable doubt that a story is true. This is a factor which must be taken into account, although exactly how far the point goes is worthy of careful consideration. For example, however pressing the deadline, a piece which would be seriously defamatory if untrue would require careful checking indeed, and
1.11
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The Inquiry is not in a position to say whether this proposition is equally as accurate for racing tips
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in the ordinary course prior notice to the subject, before being published. This is always a matter of fact and degree, involving the exercise of sound and sensitive judgment.
Good journalism may also entertain

1.14 The Inquiry fully recognises and understands that not all journalism can or should be worthy or high-minded. If this were some sort of requirement, or even a desirable objective, the outcome would be undemocratic and ultimately contrary to the public interest, because the readers of such a press would not be representative of the range of tastes, educational attainments and opinions which constitute modern British society. An important section of the press, probably in truth the largest section, must be popular and must entertain. Even readers of more highbrow papers are not interested only in serious articles; light and entertaining pieces are all part of the overall package. The same naturally applies to an even greater extent in relation to the mid-market and tabloid press, and no one is remotely suggesting that this is an unworthy or inappropriate objective. Thus, purely entertaining stories serve at least two functions: first, they have value in their own right, and accord pleasure to their readers on their own terms; second, they have a corollary function in attracting readers to the newsstand and in maintaining circulation; and the advantageous by-product of both these functions is that readers will participate more in the democratic process by being drawn to the news and comment pages of the paper which are often skilfully interwoven with the lighter sections and are usually written in a clear, compelling, user friendly and pungent style. Journalism which has no value other than the fact that it entertains does not require a public interest justification provided that its processes of research and preparation, as well as its subject matter, do not impinge on the rights of others. Submissions from a number of the press Core Participants appear to have come close to suggesting that the Inquirys provisional view might be that a public interest justification is required for all stories: this is, as I hope has been made clear, to misunderstand the Inquirys analysis of the issue. A public interest justification is required only if rights and interests such as the privacy of private individuals may be harmed. In all other cases, subject to issues such as accuracy and the like, the press is both entitled and entirely free to publish what it likes in the way that it likes. What might or does amount to entertainment will naturally vary from paper to paper, and no one could or should be remotely prescriptive about this. Here, the issue touches subjective matters of taste and opinion which, subject to not overstepping various bounds, must lie solely within the editorial judgment of the newspaper in question.
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2. Some case studies

2.1 At the directions hearing on 3 April 2012, I made the following statement:5 on a number of occasions it has been suggested to me that I have not paid sufficient attention to the good work of the press. Perhaps thats an inevitable consequence of the terms of reference of the Inquiry, but in order that nobody can suggest that I have paid insufficient attention to that aspect, I will invite any title that wishes to submit what they perceive to be their top five public interest stories over the last few years, merely to reflect the other side of the coin.
pp1-2, lines 14-8, Lord Justice Leveson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/ lev030412pm.pdf
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2.2
In this section of the report I will address a selection of the public interest stories drawn to my attention by a number of the press Core Participants pursuant to my invitation, and consider some specific pieces of evidence referred to in written submissions as illustrative of good practice. Not every title responded to my invitation, and in any event not every story will be expressly covered below: some of the campaigns which are relied on as evidence of public interest stories are not without controversy, and some are ongoing. I will conclude this section with the Daily Telegraphs MPs expenses stories, since much Inquiry time was devoted to it from a number of perspectives. Inevitably, I will be drawing attention to the work of individual titles. I see no difficulty in doing this because reference to good practice does not engage in any way what I have been calling the mantra and the self-denying ordinance. I am also drawing heavily on the content and wording of the submissions of the press Core Participants. I should accordingly make it clear that by making reference to any particular campaign, I should not be interpreted as passing judgment on the merits of that campaign or any underlying argument, although I fully recognise the right of the relevant title to campaign as it sees fit. Furthermore, it is extremely important that this aspect of the work of the press, namely holding public authorities and others to account in ways that an independent mind has perceived is in the public interest, is recognised and appreciated. When dealing with practices of sections of the press that I criticise, nothing should be taken to detract from the role of the press generally to expose wrongdoing, incompetence or inefficiency, and to challenge those who make decisions about the way they were reached or basis for them.
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Associated Newspapers Limited

2.5 The Daily Mails written submission is that it is a newspaper which champions causes, fights injustice and raises millions from generous readers to help those facing real hardship. It has never been afraid, or frightened, to stand up against injustice, often in difficult or even dangerous circumstances. The following are advanced as examples of public interest campaigns in recent years. The first story advanced by the Daily Mail is the Stephen Lawrence campaign. When the prime suspects were acquitted in 1997 of Stephens murder in south east London in 1993, the Daily Mail took up the case. A front page proclaimed Murderers, accused the suspects of the crime and printed their pictures. Under a headline: The Mail accuses these men of killing. If we are wrong, let them sue us, the paper effectively challenged the suspects to sue. They did not. After the abolition of the rule against double jeopardy and new DNA developments, earlier this year two of the suspects were found guilty of his murder. Second, two years after the 1998 Omagh bombing atrocity, in despair that the killers were still at large, devastated families of the 29 people, including the mother of unborn twins who had been killed in the outrage, approached the Daily Mail in a final attempt to win justice for their loved ones. the Daily Mail, which accused British justice of a shameful betrayal, appealed to its readers and received support across the religious and political divide, raising 1.2 million to fund a landmark civil court action. In June 2009, the family finally succeeded when a historic Belfast court ruling awarded them more than 1.6 million in damages against the four Real IRA terrorists they accused of tearing their lives apart. The third campaign identified by the Daily Mail concerns compensation for wounded servicemen. In 2007, the Daily Mail highlighted the paltry sums given to injured heroes by the Ministry of Defence and launched a campaign focusing on the case of paratrooper Ben Parkinson, 24, who lost both legs, the use of one arm, his speech and much of his memory
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in a mine blast in Afghanistan. After a year of campaigning, the Government announced it was doubling the maximum pay out to the worst injured; this was followed, in 2010, by the announcement that compensation for thousands of others badly wounded in the line of duty, would also be raised, backdated to 2005. 2.10 Following the devastating tsunami on Boxing Day 2004, an appeal (Flood Aid) by the Daily Mail raised nearly 16 million from readers; this was a world record for newspapers. Much of the money was filtered through the Disaster Emergency Committee, which represents major UK-based charities, but the paper also oversaw the rebuilding of a large state school for children of the poor in Galle on Sri Lankas southern coast and the reconstruction of a fishing village in Banda Aceh, together with new boats for fishermen. The Daily Mail has also drawn attention to the many other successful campaigns the newspaper has run. Just a few of them are Dignity for the Elderly; Osteoporosis; Alzheimers drugs; Prostate Cancer Awareness; The 6 million Kosovo Appeal; the 5.5 million Farm Aid appeal; The Battle of Britain memorial; Coming Home; and Money Mails campaigns to help readers get compensation from the banks, from the tax man and from Building Societies. It may readily be understood that Associated Newspapers Ltds examples of public interest journalism are examples of campaigns which it has pursued with enormous vigour over the years, in each case in the public interest and with ultimate vindication. They illustrate a different facet of the vital public importance of the press, no less important than paradigm illustrations of investigative reporting. Further, some might argue that the Stephen Lawrence campaign was not merely fraught with obvious risk, (legal risk being only one potential concern) but it involved the difficult decision, raising serious public interest issues, as to whether to accuse those who had already faced a criminal trial for a crime as serious as murder (the private prosecutions brought by the Lawrence family having collapsed through lack of then available evidence). However, Paul Dacre, the editor of the Daily Mail back in 1997 as he is now, explained why he was prepared to support the Lawrence family in the face of injustice. It must be emphasised that his judgment has been entirely vindicated by subsequent events, namely the setting up of a public inquiry under the Chairmanship of Sir William MacPherson (along with its conclusions), the conviction of two men and the maintenance of public awareness of the case and its important ramifications.
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The Guardian
2.13 2.14 Appendix A to the Guardians submissions, filed on 23 July 2012, details five recent public interest investigations conducted by Guardian News and Media Ltd.6 I set out these in full. The first concerns the death of the newspaper seller, Ian Tomlinson. In the days after the Mr Tomlinsons death, during protests over the G20 summit in April 2009, dogged reporting by the Guardians Paul Lewis raised questions about the police account of the sequence of events leading up to his collapse. The official account was unpicked when the Guardian obtained video footage showing Mr Tomlinson being struck by a police officer before his collapse. Mr Lewiss reporting led to the reversing of the original pathologists findings that Mr Tomlinson died of natural causes, an inquest returning a verdict of unlawful killing, and the prosecution (and subsequent acquittal) of a police officer for manslaughter.
pp25-26, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Closing-Submission-from-Guardian-Newsand-Media-Ltd.pdf
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2.15
The second Guardian story concerns the tax gap. In a two week series of articles based on several months of investigation, a Guardian team in February 2009 revealed how leading companies including Barclays, GlaxoSmithKline and Shell were using a range of highly complex offshore devices to avoid paying millions in UK tax. The reports involved the Guardian in a legal battle with Barclays, which sought to prevent publication of documents outlining its tax avoidance schemes, and later led to the Government taking significant steps to crack down on tax avoidance. The third story relates to the oil trading firm, Trafigura. In May 2009, The Guardian acquired a confidential document which suggested that the waste dumped from a tanker chartered by Trafigura in the Ivory Coast port of Abidjan was highly toxic. A large number of local residents became sick. Trafigura later attempted to gag the paper by seeking a super-injunction, preventing not just publication of the key document but even reporting of an MPs question about it. After a public campaign the super-injunction was lifted; Trafigura was later convicted by a Dutch court with regard to the delivery of the toxic waste to, and its export from, Amsterdam and fined 1 million Euros. The company is appealing the decision. The Guardian also refers to its campaign in relation to rendition and torture of detainees. For more than five years and in scores of articles, The Guardians Ian Cobain has painstakingly uncovered the extent of Britains complicity in the torture and rendition of detainees in the face of countless official denials. Mr Cobain has linked Britain to the mistreatment of prisoners in Iraq, Libya, Pakistan, Bangladesh and Afghanistan. Mr Cobains reporting was one of the key factors leading to the Governments decision to order an inquiry into allegations of British complicity in torture, now delayed until police investigation of two cases is complete. Although the underlying disclosures by WikiLeaks remain potentially controversial, the Guardians collaboration with whistleblowers website WikiLeaks and four other international newspapers in 2010 and 2011 led to the publication of a string of major public interest stories touching almost every corner of the globe. They included the disclosure that Saudi Arabia was secretly putting pressure on the US to attack Iran, that US diplomats believed Russia was a virtual Mafia state and that a British oil company claimed to have infiltrated all of Nigerias major ministries. The role played by the Guardian, however, is not controversial: it played a central part in ensuring that hundreds of thousands of documents which might have been dumped raw on the Internet were carefully analysed first and redacted to avoid exposure of vulnerable sources. More than 30 Guardian specialist reporters and foreign correspondents were involved in the huge effort to comb and authenticate the documents over several months. The Guardian might also have drawn specific attention to the work of Nick Davies in investigating the phone hacking story over a number of years, culminating in the revelations of July 2011 which led directly to the setting up of this Inquiry. The criticisms made of that report are analysed in the case study dealing with the murder of Milly Dowler. In my view, these are all excellent examples of public interest investigative journalism, properly so called: in other words, the unearthing of the often unpalatable truth by dogged hard work and persistence. This is different to the conduct of a campaign for or on behalf of causes which meet a newspapers particular agenda. The latter may well discharge an important public interest function in the drawing of attention to worthwhile causes which would not otherwise have crossed the publics radar and may have no less importance, but the nature and quality of the journalism involved is somewhat different. Nor do I lose sight of the point that campaigning journalism might be much more controversial on the basis that it
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is capable of dividing public opinion; here, the newspaper is providing its own megaphone to amplify the volume in relation to causes its editors or proprietors happen to favour.
Northern & Shell

2.21 The Daily Star, the Daily Star Sunday, the Daily Express and the Sunday Express have supplied the Inquiry with copies of a considerable number of articles which comprise examples of good journalistic practice, whether it be campaigning journalism, investigative journalism, or a combination of the two. I propose to set out a representative sample below. Both the Daily Express and the Sunday Express have mounted a campaign for veterans of Bomber Command to be accorded greater recognition in view of their and their late colleagues service and sacrifice during the Second World War. This campaign has included pressing for veterans to be issued with the Second World War Campaign Medal, and for a Bomber Command Memorial to be inaugurated. On 28 June 2012, HM The Queen unveiled such a memorial in recognition of the 55,573 aircrew who lost their lives in the Second World War and the Daily Express published a souvenir edition to mark this event. The Inquirys attention has also been drawn to a number of stories in the Sunday Express relating to a scandal uncovered by the newspaper whereby social workers were sexing up documents to give local authorities the power to take thousands of children from their families and put them up for adoption, so as to meet flawed Government targets. The paper is also responsible for an ongoing campaign to achieve a greater understanding and openness in the discussion and treatment of mental illness. A number of impressive public interest stories have been run by the Daily Star Sunday, but the following examples will suffice for present purposes. First, the newspaper ran several articles exposing the activities of the English Defence League (EDL) and contending that they could legitimately be described as dangerous thugs. When it appeared that the EDL was getting a groundswell of support among working class people, the newspaper continued running strongly worded editorials criticising the group and exposing the criminal records of several of their members. More recently, the newspapers investigators spent months working on the scandal of PIP breast implants, speaking to victims and experts to ascertain the dangers the implants pose. Key successes include uncovering for the first time a detailed list of ingredients contained in the implants. A third public interest inquiry was mounted which, on two occasions, revealed that the paper had found IT blunders by Government workers who placed restricted information in the public domain by failing adequately to redact them so that the restricted information was not revealed. These stories have led to a change in the way certain departments redact documents. Fourth, the newspaper seeks to have an article each week covering the human side of the wars in Iraq and Afghanistan. Following complaints about the quality of equipment the servicemen were using, the Daily Star Sunday (along with other newspapers) wrote a series of articles calling for improvements to be made. These stories led to a marked improvement in equipment, including the decommissioning of so called Snatch Land Rovers. The fifth example is that the paper has been investigating unpublicised dangers surrounding Tamiflu for many months, after it found it had been linked to the deaths of 13 people. The newspaper exposed links between the licensing authority and the drug-maker, and has documented numerous complaints from patients affected by the drug.
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The Sun
2.27 The Suns written submissions and evidence refer to a number of its campaigns,7 and I have borne these well in mind, recognising the arguable public interest in bringing these matters to the attention of their readers at the particular time. But, rather than setting these out specifically, I believe that it is more valuable at this stage to refer to some of the evidence given by its current editor, Dominic Mohan. The first example of true public interest journalism concerns neither investigation nor campaigning. Rather, it is to explain extremely complex concepts of vital public importance. By way of example, Mr Mohan referred to an article published on 27 July 2011 in which The Sun gave a succinct description of the state of the Eurozone bailout crisis, saying that the majority of working people in the UK preferred to read a really concise and well-executed spread ... which gives them very quick, digestible summary of very, very complex issues.8 He said that such reporting in The Sun was how millions of people learn of serious issues on a daily basis.9 Nobody can pretend that the issues at stake are straightforward and there is no doubt that journalism of this type is of a very high order. Mr Mohan also referred with pride to The Suns science reporting. He mentioned his engagement of Professor Brian Cox as The Suns Professor. He writes for The Sun on very complex issues like the Hadron Collider and digests them into very accessible chunks for the readers.10 He also referred to praise for The Suns science coverage by the Science Media Centre:11 its director, Fiona Fox, said Professor Cox was wonderful. She said that he and others who write on science for tabloids are genius and went on every single day they communicate very complicated and very important science to a mass audience.12 The Sun has also provided good illustrations of public interest stories which may fairly be described as examples of investigative journalism.13 These can best be identified by reference to the headline and story: no further comment is necessary. We smash poison docs prison plot to kill ex and baby (14 May and 16 June 2012). The Sun revealed how a doctor, already jailed for six years for drugging his mistress to try and force a miscarriage, was planning a revenge plot to kill her and her baby. In an undercover investigation, reporters from The Sun asked another convict secretly to film the doctor, Edward Erin, explaining his plan. The evidence was handed to the police and as a direct result Erin was jailed for an additional two years. Court in the act clerk brags of 500 bribes to wipe records of dangerous drivers (4 August 2011 and 19 November 2011). After a tip-off that a Magistrates Court clerk was offering to wipe clean convicted drivers licences, The Sun mounted an undercover operation to test the allegation. The Sun reporter sought and won approval from the editor and The Suns legal
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p8, para 33 and pp12-13, paras 52-54, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/WitnessStatement-of-Dominic-Mohan.pdf 8 pp54-55, lines 24-7, Dominic Mohan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-9-January-2012.pdf 9 pp54-55, lines 12-7, Dominic Mohan, ibid 10 p52, lines 14-17, Dominic Mohan, ibid 11 pp121-122, lines 24-3, Dominic Mohan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcriptof-Afternoon-Hearing-7-February-2012.pdf 12 pp34-35, lines 17-13, Fiona Fox, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-24-January-2012.pdf 13 p4, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Fifth-Witness-Statement-of-RichardCaseby.pdf
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advisers to offer the clerk 500 and film the transaction, even though this was in contravention of the Bribery Act 2010, which came into force the previous month.14 The evidence was handed to police and the clerk, Munir Patel, became the first person to be convicted under the Bribery Act 2010; he was subsequently imprisoned for six years. 2.33 Maddie fraudster nicked (25 November 2009). Kevin Halligen was a private detective employed by Drs Gerry and Kate McCann to help find their missing daughter. He swindled their charitable fund of 300,000 and went on the run after being accused of a 2 million fraud for which he was wanted in the US. The Sun tracked him down, he was arrested and he has now lost his appeal against extradition. Were in jail, dude, (6 February 2007). The Sun revealed the secret cockpit tape from a US jet which attacked a British convoy and killed a British soldier, Lance Corporal Matty Hull, in a friendly fire incident during the Iraq war. The Ministry of Defence had failed to produce the video at the inquest into Lance Corporal Hulls death. But, as a result of The Suns investigation, the Coroner was able to deliver a verdict of unlawful killing.
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The Sunday Times

2.35 It is impossible not to mention the extremely well known exposure of the effect of the drug Thalidomide in the 1970s and the campaign against Distillers (spearheaded by the then editor, Sir Harold Evans) as one of the most outstanding examples of persistent and challenging journalism. It exemplifies both investigative and campaigning journalism and stands as an example of the power and effectiveness of the press at its very best. The much more recent illustrations put in evidence by The Sunday Times15 are also good examples of investigative journalism which can have a campaigning effect. Once again, it is sufficient to illustrate them by reference to the headline and story. Tory treasurer charges 250,000 to meet PM (Insight, 25 March 2012). The co-treasurer of the Conservative party, Peter Cruddas, was filmed by Sunday Times reporters selling secret meetings with the Prime Minister for donations of 250,000. He offered a lobbyist and undercover reporters, posing as overseas clients, direct access to the Prime Minister if they joined a premier league of party donors. Mr Cruddas resigned within hours of the story being published and Mr Cameron came under intense pressure to disclose the identities of all donors who had been entertained privately at Downing Street. Vet offers only hope for Syrian wounded and We live in fear of a massacre, (19 February 2012). The last despatch from Marie Colvin, the renowned Sunday Times war correspondent, revealed the scale and depth of suffering among the 28,000 civilians caught up in the Syrian armys shelling of the Babr Amr district of Homs. Ms Colvin was killed by a rocket on 22 February 2012, three days after her story was published, provoking international condemnation of President Assads regime and adding impetus to the efforts to secure Russian and Chinese backing for political transition in Damascus. Revealed: the full horror of Misrata, (10 April 2011). The Sunday Times foreign reporter Hala Jaber boarded a gun runners trawler to get to the Libyan port of Misrata after it was besieged and bombarded for weeks with no independent access for journalists. She found a city in desperate need of humanitarian and military help. Her front page report increased
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For reasons identified in Part J Chapter 2 and by reference to the Code for Crown Prosecutors, it is inconceivable that anyone would consider there to be a public interest in prosecuting the journalist in these circumstances 15 p1, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Fifth-Witness-Statement-of-RichardCaseby.pdf
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international pressure for aid shipments to trapped civilians and NATO airstrikes on Colonel Gadaffis forces in the area. 2.39 World Cup votes for sale (Insight, October 2010). The Sunday Times reporters exposed corruption in the FIFA voting process which decides who will host the football World Cup. During an investigation that lasted three months and involved travel to three continents, the undercover team discovered six senior FIFA officials, past and present, who offered to work as fixers and suggested paying huge bribes to FIFA executive members. One executive member asked for 500,000 for a personal project, another asked for 1.5 million for a sports academy. As a result, eight officials were suspended for between one and four years and, in future, every member country will have a vote on which country should host the World Cup rather than the decision being left to a secretive 24 man committee.
The Telegraph
2.40 In written submissions filed on 2 May 2012, Telegraph Media Group Ltd drew attention to a number of recent public interest stories.16 Pride of place goes to the MPs expenses story which is covered under a separate heading below. Again, the stories speak for themselves. Baby Girls Aborted: No Questions Asked.17 An undercover investigation by The Daily Telegraph disclosed that women were being offered illegal sex selection abortions. Doctors were secretly filmed offering to abort foetuses purely because they were either male or female, even though it is illegal to carry out a termination for that reason. One doctor, a consultant who works for both private clinics and NHS hospitals in Manchester, told a pregnant woman who said she wanted to abort a female foetus, I dont ask questions. If you want a termination, you want a termination. She later telephoned a colleague to book the procedure, explaining that it was for social reasons and the woman doesnt want questions asked. The Daily Telegraphs investigation also recorded several other doctors at clinics in other parts of the country offering similar terminations based on the unborn babys gender. The consequence of this exposure is that there are now three separate and ongoing police investigations by the Metropolitan, Greater Manchester and West Midlands police forces. In addition, the matter is being pursued in separate professional investigations by the General Medical Council and the Nursing and Midwifery Council. Finally, the Care Quality Commission has made unannounced inspections at more than 250 abortion clinics. Cheating the System: How Examiners Tip off Teachers.18 An undercover investigation disclosed that teachers were paying to attend seminars with chief examiners where they were advised on examination questions. One examiner was recorded telling the teachers what examination questions to expect and admitted were cheating. The investigation exposed a system in which examination boards aggressively competed for business from schools. Evidence was uncovered that standards of examinations had been driven down to encourage schools to enter pupils for particular boards. The Chief Examiner of one examination board told one undercover reporter that there is so little content we dont know how we got it through and in an attempt to win new business told him we dont have to teach a lot. This investigation had an impact on millions of children across the country and the teaching profession. The Secretary of State for Education, Rt Hon Michael Gove, welcomed The Telegraphs investigation and there is now a fundamental review of the examination system, and an inquiry being conducted by the Education Select Committee in the House of Commons.
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http://www.levesoninquiry.org.uk/wp-content/uploads/2012/08/Public-Interest-Stories-from-Telegraph-MediaGroup.pdf 17 February 2012, and various articles and dates thereafter 18 December 2011, and various articles and dates hereafter
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Inquiry into Stem Cell Clinic that offers help to Sick and Disabled.19 This was a Sunday Telegraph undercover investigation at Europes largest stem cell clinic, which was taking tens of thousands of pounds from the most vulnerable in society for unproven clinical treatments. The XCell-Centre clinic, in Germany, became the centre of a scandal following the revelation that it was conducting stem cell transplants which are illegal in Britain and most of Europe. Hundreds of British patients travel there each year. A Sunday Telegraph reporter was told that, if he underwent treatment at that clinic, there was a chance that he could be able walk again. The paper also uncovered that an 18 month old baby died and another was seriously injured following transplant of stem cells into their brains. The Sunday Telegraph investigation led to the clinic being closed by the German authorities but the paper and its journalists persisted with a follow up inquiry. These further investigations (reported in the paper in spring 2012) reveal that the chief executive and founder of the German clinic had now established another clinic in Lebanon. Chronic Lack of Equipment Puts Soldiers Lives at Risk.20 In June 2007, the Daily Telegraph first disclosed worrying information about the lives of servicemen being at risk due to what it described as woefully inadequate resources. The paper highlighted serious supply problems and failures of equipment, such as the fact that only 70% of Chinook helicopters were available for use, only 50% of Apache helicopters were working and soldiers were buying their own binoculars as the Army supplied ones were inadequate. The Telegraph papers continue to report of worrying problems of this kind. Since the Coalition Government came into power, Telegraph revelations have included a private letter sent by the Defence Secretary warning the Prime Minister that draconian cuts in the defence budget cannot be carried out without grave consequences. There continues to be strong Parliamentary and public interest in these issues.
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The Times
2.45 The Times has provided its view of the top five public interests stories published by the paper in the recent past. They are listed in evidence21 and it is sufficient to select four examples. Headline and story provide sufficient detail. The tax avoiders (1921 June 2012). An undercover investigation by Times reporters revealed that thousands of wealthy people in Britain pay as little as 1% income tax. The comedian Jimmy Carr and members of the pop group Take That were named among those who used a Jersey based tax scheme that shelters 168 million from Her Majestys Revenue & Customs (HMRC). As a result of The Times articles, the Prime Minister condemned Mr Carrs conduct and Mr Carr promised to conduct his financial affairs much more responsibly. HMRC also vowed to shut down the K2 scheme used by Mr Carr and more than 1,000 others. Fox in dock over links with bogus aide (815 October 2011). Times reporters revealed that Adam Werrity, a defence consultant and friend of Liam Fox, the former Defence Secretary, was accompanying Dr Fox on trips around the world despite having no official role at the Ministry of Defence. The disclosures led directly to the resignation of Dr Fox. The Times Adoption Campaign, (April 2011). This Times investigation exposed the ways in which the adoption system had become riddled with delay and inertia, and how that had
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19 20
October 2010 Various articles and dates 21 p3, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Fifth-Witness-Statement-of-RichardCaseby.pdf
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affected children waiting for permanent new families. As well as stories, interviews, graphics and case studies, The Times commissioned Martin Narey, the former director-general of the Prison Service, to analyse the system and recommend reforms. The response was swift. First, in July 2011, the Government appointed Mr Narey as its first ministerial adviser on adoption with a remit to drive up the number of adoptions, especially at the worst performing local authorities. Then, in October 2011, the Prime Minister intervened to promise radical reform of the system. Finally, in December 2011, the Government announced it would scrap the bureaucratic assessment process for would-be adoptive parents and replace it with a more streamlined system. 2.49 Israel rains fire on Gaza with phosphorus shells (5 January 2009). The Times revealed that the Israeli Defence Force was using white phosphorus shells during an offensive over one of the most densely populated areas of the world. The shells, which can cause horrific burns, are banned under the Geneva Treaty of 1980 as a weapon of war in civilian areas, but not if they are used as a smokescreen. Human rights groups accused the Israelis of war crimes.
MPs expenses
2.50 Over the years, there have been many examples of journalism at its best, resulting in ground breaking stories of national and international importance. The examples provided to the Inquiry by press Core Participants are no more than illustrative; and they are intended to underline that most journalists go about their work with legal and ethical principles very much in mind, and are willing to test the product of their work against what the public interest truly demands. It is not the intention of the Inquiry to identify what has been the best or the most important story but, without putting any one above any other, it is worth examining one of the recent ground breaking stories in a little detail, if only to demonstrate good practice and the proper exercise of editorial discretion. On 8 May 2009, the Daily Telegraph published the first of a number of articles that detailed the expenses and allowance claims made by MPs over a period of four years from 20042008.22 These claims contained a significant number of what were said to be fraudulent claims that breached both Parliamentary rules on expenses and allowances and, in some cases, the criminal law. The Telegraphs expos preceded the formal publication of data relating to MPs expenses and allowances by Parliament by a number of months. The data that formed the basis of the Telegraphs stories was contained on one disk, supplied by an undisclosed source in exchange for payment of approximately 110,000. Representatives of the Daily Telegraph have told the Inquiry that, before deciding to buy the material, they satisfied themselves that the material was not, in fact, stolen and that its acquisition was not in breach of the criminal law.23 The disclosure by the Telegraph of MPs expenses claims was the subject of intense and extended media coverage and, indeed, public debate. The scale of wrong doing was quickly recognised by the then leaders of the major political parties. Such was the public outrage at the steady disclosure of expenses claims that MPs appeared to have tried to keep out of the public domain that, almost immediately, senior politicians offered an unreserved apology to the public. On 11 May 2009, the then Prime Minister, the Rt Hon Gordon Brown, apologised
2.51
2.52
22
In the United Kingdom MPs can claim expenses, including the cost of accommodation, wholly, exclusively and necessarily incurred for the performance of a Members parliamentary duties. In the tax year 20072008, MPs cost of staying away from their main homes was limited to 23,083 23 pp57-58, lines 18-5, William Lewis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-10-January-2012.pdf
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on behalf of all politicians for the expenses claims that had been made. Later that day, the Leader of the Conservative Party, Rt Hon David Cameron, said that all MPs should apologise for the expenses scandal. He told the BBC that the system of expenses was wrong and were sorry about it.24 On 12 May, Mr Cameron went further in his criticism of the claims made by some MPs and said that these were also unethical and wrong.25 In a statement made to the House of Commons, the then Speaker of the House, Michael Martin, said that serious change was required in the future and that MPs should not just work within the rules, but rather in the spirit of what is right.26 2.53 The impact of the revelations was significant. There was an immediate loss of confidence in the political system generally and in the established mainstream political parties in particular. This was most clearly manifest in an unprecedented spike in support for minority political parties. It was also reflected in the observations of leading commentators and thinkers. The editor of The Times, James Harding, called the unfolding scandal Parliaments darkest hour.27 On 23 May 2009, in a speech on the potential impact of the revelations on political life, the Archbishop of Canterbury, Dr Rowan Williams, warned that:28 the continuing systematic humiliation of politicians itself threatens to carry a heavy price in terms of our ability to salvage some confidence in our democracy. Writing the same day in The Times, the columnist and former Conservative MP, Matthew Parris, suggested that:29
F
2.54
extravagance, genuine mistake, sly acquisitiveness and outright criminal fraud are now jumbled together in the national mind as though there were no moral differences. Background The publication of the details of expenses claims was neither the beginning nor the end of journalistic interest in the subject. Journalists had sought to uncover the detail of claims made by MPs through the use of powers granted under the Freedom of Information Act 2000 which had come into force in October 2004. The first requests for publication of MPs receipts date back to January 2005. Then, journalists Ben Leapman of The Sunday Telegraph, Jon UngoedThomas of The Sunday Times, and the freedom of information campaigner and journalist, Heather Brooke, submitted Freedom of Information requests relating to the expenses of 14 MPs, including the then Prime Minister Tony Blair, and the then Conservative front bencher, George Osborne.30 These requests were twice rejected by the House of Commons authorities before they were appealed to the Information Commissioner, by Mr Leapman, Mr UngoedThomas and Ms Brooke, in the spring of 2005.31 The then Information Commissioner, Richard Thomas, considered the three separate requests jointly for two years before, on 13 June 2007, deciding that the requested information should be disclosed.32 He ruled that the disclosure should be in abridged and aggregated form and
2.55
24 25
http://news.bbc.co.uk/1/hi/uk_politics/8043057.stm http://news.bbc.co.uk/1/hi/uk_politics/8044998.stm 26 http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090511/debtext/90511-0003.htm 27 p1, James Harding, The Times, (15 May 2009, London) 28 http://news.bbc.co.uk/1/hi/uk/8064828.stm 29 p4, Matthew Parris, The Times, (23 May 2009, London) 30 http://news.bbc.co.uk/1/hi/uk_politics/7233560.stm 31 http://news.bbc.co.uk/1/hi/uk_politics/7233560.stm 32 ICO Case reference: FS50079619 available at http://www.ico.gov.uk/tools_and_resources/decision_notices.aspx
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without the publication of the relevant receipts underpinning those claims. However, the Information Commissioners decision was appealed by the House of Commons authorities later that month.33 They argued that the disclosure would be unlawfully intrusive.34 The case was passed to the Information Tribunal to decide. The journalists who had submitted the original requests also appealed the decision. 2.56 Two months previously, in May 2007, a majority of MPs had voted for the Freedom of Information (Amendment) Bill introduced by the Conservative MP, David MacClean, which proposed to exempt MPs from the terms of the 2000 Act. The Bill was withdrawn shortly before its second reading in the House of Lords as peers were not willing to sponsor the bill.35 Although unsuccessful, this was the first of three attempts by Parliamentarians to restrict the application of the Freedom of Information Act to Parliament ahead of the formal publication of MPs expenses claims. In July 2008, amendments to the Freedom of Information Act 2004 were passed by Parliament. These exempted the addresses of Members of Parliament from the terms of the Act. Lastly, in January 2009, Harriet Harman QC MP, then the Leader of the House of Commons, tabled a motion intended to exempt expenses claims from disclosure under the Freedom of Information Act. Although Government MPs were placed under a three line whip, opposition Conservative and Liberal Democrat MPs opposed the motion. On 21 January 2009, the proposals were formally dropped by the Government. In February 2008, the Information Tribunal published its decision on MPs expenses, rejecting the defence put forward by the House of Commons authorities.36 Further, it ordered the release of information on 14 MPs.37 The hearings that led to the decision were not without further controversy: in particular, there were revelations around the content of the so called John Lewis list which set out the amounts that could be claimed for particular items without question or justification. The items on the list were benchmarked against the purchase price for such items at the John Lewis department store chain. The decision of the Information Tribunal to order the publication of expenses was the subject of an immediate appeal to the High Court by a small number of senior MPs representing each of the main political parties. On 16 May 2008, the court ruled that the requested details of MPs expenses should be released.38 Moreover, the High Court also ruled that further details not included in the original order made by the Information Commissioner should be disclosed, including addresses. Following the High Court ruling, no further appeal was lodged and, on 23 May 2008, the expense claims of 14 MPs, including the former Prime Minister Tony Blair and the Foreign Secretary, Margaret Beckett, were made public. The ruling of the High Court and the subsequent disclosure of the expenses of the 14 MPs named in the test case, did not lead directly to or necessarily expedite the publication of the expenses claims of all MPs scheduled by the House of Commons authorities. It had been intended that publication would take place in November 2008 but the date of the release of the information was pushed back until the summer of 2009, ostensibly to allow for the
2.57
2.58
2.59
http://www.guardian.co.uk/politics/2008/may/07/houseofcommons Anil Danwar, the Guardian, (7th May 2008, London), http://www.guardian.co.uk/politics/2008/may/07/ houseofcommons 35 http://www.cfoi.org.uk/macleanbill.html 36 Decision of the Information Tribunal Case Reference numbers: EA/2007/0060, EA/2007/0061, EA/2007/0062, EA/2007/0063, EA/2007/0122, EA/2007/0123, EA/2007/0131 available on http://webarchive.nationalarchives.gov. uk/20110206200309 /http://www.informationtribunal.gov.uk/Public/search.aspx?Page=27 37 Decision of the Information Tribunal Case Reference number: EA/2007/0060, http://webarchive.nationalarchives. gov.uk/20110206200309/http://www.informationtribunal.gov.uk/Public/search.aspx?Page=27 , p28, ss96-97 38 Corporate Officer of the House of Commons v The Information Commissioner & Ors [2008] EWHC 1084 (Admin) reported at [2009] 3 All ER 403, http://www.bailii.org/ew/cases/EWHC/Admin/2008/1084.html
34
33
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proper collation of the data.39 In April 2009, the House of Commons authorities announced that publication of expenses, with certain information deemed sensitive removed, would take place in July 2009.40 2.60 On 18 June 2009, more than one month after the first disclosures in the Daily Telegraph, the details of all MPs expenses and allowance claims approved by the House of Commons authorities during the period from 2004 to 2008 were published on the official Parliament website. However, a number of details, including personal data such as addresses, were redacted. The published data also excluded claims made by Parliamentarians that had not been approved for payment by the House of Commons authorities, as well as related correspondence between MPs and the Parliamentary fees office. These omissions resulted in further allegations in the press of unnecessary secrecy, and also served to confirm an increasingly widespread suspicion that the most serious abuses of the expenses system would not have come to light had the redacted documentation been the only information available. Details of voluntary repayments by MPs amounting to almost 500,000 were also published by the House of Commons authorities.41 It is noteworthy that shortly after the publication of the first of the disclosures in the Daily Telegraph, the House of Commons authorities asked the Metropolitan Police Service (MPS), to investigate the journalistic activities of the paper. This request was declined by the MPS on the grounds that a prosecution would not, in any event, be in the public interest (although, as identified above, the then editor of the Daily Telegraph made clear in his evidence that the advice that he received was that no criminal act had taken place).42 Disclosure by the Daily Telegraph: the story 2.62 On 30 April 2009, the Daily Telegraph obtained access to a full copy of all expenses claims made by MPs between 2004 and 2008. This data had been purchased from a middleman, Major John Wick, for the sum of approximately 110,000. The material had also been offered to other newspapers including The Times and The Sun. Mr Harding confirmed in evidence that his newspaper decided against purchasing the information because of concerns that it may have been stolen.43 The Daily Telegraph began publishing in instalments, from 8 May 2009, the details of expenses claimed by certain MPs. Mr Lewis has given evidence at length to the Inquiry about the process which led to the purchase of the material by the Daily Telegraph. He said that the decision to purchase and publish the material was iterative: senior management at the newspaper were consulted throughout and fully aware of the need to establish the provenance and legality of the material, as well as the need to make most effective use of the limited ten days worth of access to the data that the Daily Telegraph had purchased in the first instance.44 Mr Lewis also made clear that conditions based on fairness and impartiality were attached to the sale of the material by the seller.45 Mr Lewis has said that he was mindful that the need to meet those
2.61
2.63
39 40
p3, www.parliament.uk/briefing-papers/SN05784.pdf p4, www.parliament.uk/briefing-papers/SN05784.pdf 41 http://news.bbc.co.uk/1/hi/8493634.stm accessed on 31 May 2012 42 p17, para 31.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-WilliamLewis.pdf 43 pp82-83, lines 19-13, James Harding, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-17-January-2012.pdf 44 p59, line 4, William Lewis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-AfternoonHearing-10-January-2012.pdf 45 p58, line 21, William Lewis, ibid
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conditions determined the scope and sequencing of the eventual publication of the material from 8 May.46 2.64 Mr Lewis told the Inquiry that the purchase and publication of data was a story laced with risk.47 He said that those risks existed on a number of levels. First, senior management at the Daily Telegraph were worried that the material may have been fabricated as part of an elaborate hoax. He suggested that the memory of The Sunday Times publication of the Hitler diaries in the early 1980s48 had cast a long shadow over many of those who were in some way involved with that story.49 Mr Lewis said that the legality of the data was also a serious consideration. However, Mr Lewis position was that there was an overriding public interest in ensuring that the data entered the public domain, and in exposing what he described as profound wrong-doing at the heart of the House of Commons,50 as well as to ensure that readers were informed about how the MPs were fleecing the taxpayer.51 Further, Mr Lewis told the Inquiry that the decision to publish was justified because the official disclosure of these expenses claims by the House of Commons authorities would have omitted key information, particularly around the re-designation of second-home nominations. Mr Lewis confirmed that the public interest in publishing data, rather than any commercial value or advantage to the newspaper, was the determining factor in the decision to purchase and publish the data.52 Aside from the advice on the criminal law which the Daily Telegraph received, Mr Lewis explained that there were further legal considerations that the newspaper had to overcome ahead of publication of the material. Specifically, these were around the conditions set down by the source of the data, and focused on payment for the data, the legal protection of the source and the fair and balanced treatment of the material.53 For Mr Lewis, the greatest challenge faced by the newspaper was in the analysis of the data itself within the initial ten day time-frame permitted under the terms of the sale.54 This, Mr Lewis said, was undertaken by a dedicated MPs expenses team working solely and secretly on the data.55 The team examined more than 1 million documents on the disk, representing about half of the total data set.56 There followed serious consideration with colleagues at the paper as to how best to ensure that the revelation of the data was fair and balanced. In addition, the newspaper wrote to the MPs concerned in order to seek confirmation from them of the veracity of the claims. It was only when the then Justice Secretary, the Rt Hon Jack Straw MP, responded to the paper confirming the detail of his claims and providing an explanation for them that Mr Lewis felt sufficiently confident to proceed with publication of the story.57
2.65
2.66
46 47
p58, lines 23-24, William Lewis, ibid p56, lines 15-16, William Lewis, ibid 48 pp39-40, lines 25-19, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcriptof-Morning-Hearing-25-April-2012.pdf 49 pp55-56, lines 23-8, William Lewis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-10-January-2012.pdf 50 p61, lines 11-15, William Lewis, ibid 51 p62, line 17, William Lewis, ibid 52 pp61-62, lines 21-1, William Lewis, ibid 53 p58, lines 16-25, William Lewis, ibid 54 p59, lines 4-5, William Lewis, ibid 55 p59, lines 4-12, William Lewis, ibid 56 in all, the investigation involved scrutinising more than 4m documents, with a team of more than 10 reporters backed up by dozens of support staff 57 p59, lines 13-25, William Lewis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-10-January-2012.pdf
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2.67
The Daily Telegraph revealed details of these expenses sequentially.58 The first revelations concerned the expenses of the then governing Labour Party,59 beginning with the claims made by members of the Cabinet.60 Details of claims made by junior ministers and Labour backbenchers followed. A further tranche of expenses claims made by Labour MPs was published on 14 May.61 In order to provide the fairness and balance imposed as a condition of purchase, the coverage did not focus exclusively on claims which had been made by the then Government. On 11 and 12 May, the Daily Telegraph revealed details of the expenses claimed by members of the Front Bench of the Conservative Party,62 followed by the claims of backbench Conservative MPs. The expenses claims made by Liberal Democrat MPs were revealed last of the three main parties.63 Areas of abuse
2.68
In addition to the exposition and publication of specific allegations of incorrect claims, including claims for the cost of mortgages already repaid in full, the Daily Telegraph also set out alleged abuses of the Parliamentary Green Book rules on expenses and allowances. These, the newspaper rightly contended, provided considerable scope for a number of different abuses. In particular, the abuses set out by the Daily Telegraph related to costs of maintaining two residences, one in the constituency and one in London. Other alleged abuses brought to the public attention by the Daily Telegraph included (but were not limited to):
nominating second homes: the Green Book states that the location of your main home will normally be a matter of fact. MPs and peers were able to ensure that their second home was the one which enabled them to claim more expenses; redesignating second homes: MPs were able to switch the designation of their second home, enabling them to claim for purchasing, renovating and furnishing more than one property. This practice has become known as flipping; subsidising property development: the Green Book rule that MPs could not claim for repairs beyond making good dilapidations was not enforced, and consequently MPs were able to add significantly to the value of a property. By implication some second homes were effectively businesses not homes since they were renovated on expenses and then rapidly sold; claiming expenses while living in grace and favour homes: Ministers with grace and favour homes in Westminster were also able to claim for a second home as well as their existing primary residence; overclaiming for food: MPs were permitted to claim up to 400 for food each month without receipts, even when Parliament was not sitting; and overspending at the end of the financial year: MPs were able to submit claims just before the end of the financial year, so as to use up allowances, without being challenged as to their legitimacy.
58
p18, para 31.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-WilliamLewis.pdf 59 ibid 60 ibid 61 ibid 62 ibid 63 ibid
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Parliamentary reaction 2.69 The expenses claims disclosed by the Daily Telegraph and subsequent public anger at the behaviour of MPs led to substantial changes to the manner in which Parliamentary expenses and allowances were administered. On 20 May 2009, Ms Harman, announced the creation of the Independent Parliamentary Standards Authority to manage Parliamentarians expenses independently of any interference from Parliament.64 Further, an independent Panel chaired by Sir Thomas Legg was established to examine all claims relating to the second home allowance between 2004 and 2008. The panel published its findings on 12 October 2009 as MPs returned to Parliament following the summer recess.65 Many claims that had previously been regarded as legitimate were now considered to have breached the rules. Consequences 2.70 As a direct result of the Daily Telegraphs expos: (a) four MPs and two peers have been imprisoned; some peers have been excluded from the Lords Chamber until repayment of their claims; and one former MP has been found unfit to stand trial, although in a trial of issue the jury found that she had committed false accounting and used false instruments; several other MPs remain subject to police investigation; there was the biggest shift in the composition of Parliament for a generation, with more than 100 MPs announcing their intention to retire or leave the House of Commons; six ministers resigned or were reshuffled amid controversy over their expense claims; the first resignation of the Speaker of the House of Commons in generations occurred; more than 1 million in taxpayers money has been returned to Parliamentary authorities by MPs; a new transparent system with an independent regulator was established. In its first year, the new system led to a reduction in the cost of the MPs expenses scheme of 15 million; and in addition, the investigation led to wide areas of Government expenditure being opened up to public scrutiny and the acceptance that, as the Prime Minister put it: sunlight is the best disinfectant.
(b) (c) (d) (e) (f) (g)
(h)
2.71
The Daily Telegraphs detractors might say that the story brought the paper a huge publicity coup and the inevitable increases in circulation and sales: all the ingredients of a modern succs du scandale. Rupert Murdoch expressed his disappointment that The Times had not felt able to buy up the story from the middleman when he was touting it around the market place. Overall, however, the Daily Telegraph earned whatever commercial advantages it secured from its substantial financial investment. Although it might be stretching language somewhat to call this a case of investigative journalism in the exact sense of the term (the material was effectively handed to the Daily Telegraph on a metaphorical plate and did not need to be rooted out in the manner of a Thalidomide investigation) the obvious public interest in the story and the fact that it was undeniably laced with risk deserve full recognition. The data might have been bogus; there was certainly an issue as to whether some breach of the
64
http://www.parliament.uk/business/publications/research/key-issues-for-the-new-parliament/the-new-parliament/ parliamentary-standards-and-reputation/ 65 http://www.telegraph.co.uk/news/newstopics/mps-expenses/6314659/MPs-expenses-Sir-Thomas-Legg-explainshis-rule-change.html
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criminal law had occurred (or, at the very least, ethical concerns surrounding the manner in which the data had been extracted and supplied); and a vast amount of work had to be undertaken to analyse and review the raw material not least to ensure accuracy. The legal and ethical issues were properly and responsibly addressed, and the Inquiry is fully satisfied that no corners were cut. This, as I am pleased to repeat, is an example of journalism at its best.
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Chapter 3 Complaints of an UnethiCal press

1. overview
1.1 As a prelude to the more detailed assessment and treatment of the evidence set out below,1 this Part of the Report will summarise, with little weighing or assessment, the complaints voiced during Module One of the Inquiry of an unethical press. As cannot be over-emphasised, the criticisms are not of every title or every journalist, or even anything like every title or every journalist. The great majority of both perform their work admirably, ethically and with scrupulous attention to detail. The purpose of the Inquiry, however, was to address the practices of those who do not and any culture that is based on the latter rather than the former. Accordingly, references to unethical or unlawful practices of the press must be read as referring to such practices within parts of the press. It should be noted, however, that although some stories in the regional press have been the subject of criticism, the generic concerns are not directed to the regional press. The initial wave of evidence received by the Inquiry from its first 21 witnesses, over five working days between 21 November and 28 November 2011, undoubtedly made an immediate and powerful impact within the Inquiry room and beyond. All those who spoke volunteered to do so; more have complained and some of the further statements have been put into the record of the Inquiry. Access to this evidence by the vast majority of the public has been through the Inquirys website which remains available to anyone who wishes to view or review this testimony: everyone therefore has the opportunity to test the Inquirys assessments and conclusions against this evidence base if so minded. This Chapter summarises the thematic trends which emerged in the evidence given by the victims of unethical press practices in the first 5 days of the inquiry. But before beginning to examine these trends, it is possible to take a wider perspective. Complaints of an unethical press are of considerable lineage and are not confined to the United Kingdom. Of perhaps even greater relevance for present purposes is not so much the bare fact that such complaints have been made but rather the contemporary chord they often strike. For example, the great American jurists, Warren and Brandeis, writing in the Harvard Law Review in 1890 said this: The press is overstepping in every direction the obvious bounds of propriety and decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle... 1.4 The reference to the need to satisfy a prurient taste hints at the commercial pressures operating on the press as long ago as 1890. More recently, Sir John Major writing at the very end of the twentieth century put the point somewhat differently:2 Across Fleet Street, sensational and exclusive stories sold extra copies straight reporting did not. Accuracy suffered, squandered for something, anything, new. Quotes were reconstructed, leaks and splashes abounded, confidentiality was not respected and reputations sacrificed for a few days hysterical splash.
1 2
1.2
1.3
Part F, Chapter 6 Major, Sir J, The Autobiography, p359
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1.5
At a perhaps higher level of generality, in mitigating his clients case on his behalf at the sentencing hearing which took place on 26 January 2007, defence counsel for Clive Goodman said this:3 Mr Goodman has lived his life in a world where, and I say this with some trepidation, ethical lines are not always clearly defined, or at least observed...
1.6
Defence counsel was no doubt speaking on instructions when he made this submission. Regardless of the trepidation apparently evinced, the point counsel was making was not intended to be revelatory; rather, he was seeking to remind the judge that his client was operating within a wider press culture which did not always encourage best practice. It is unlikely that the world he was referring to was confined to the microcosm of the News of the World (NoTW): it was intended as a wider metaphor comprising the press as a whole, or at the very least a section of it. In his closing arguments on behalf of Northern & Shell, James Dingemans QC submitted, in the context of his succinct analysis of the culture, practices and ethics of the press, that:4 ... [f]ourthly, the evidence shows that they have a tendency to see news as divorced from the individuals involved. Fifthly, in some areas, there has been shown a stunning lack of judgment to the extent that it might engage the criminal law, and I say no more about that; about where lines can properly be drawn between the public interest in acquiring news and privacy
1.7
1.8
In his closing remarks, Rhodri Davies QC on behalf of News International arguably went slightly further:5 Going on to the evidence heard in Module 1, there is no doubt that that made out the case that all has not been well with the press...
1.9
Finally, when asked for his assessment of the evidence the Inquiry received during Module One, Rt Hon Michael Gove MP, Secretary of State for Education recognised that the evidence disclosed a problem which was capable of being regarded as serious,6 although he proceeded to observe that the cure might be worse than the disease. This, of course, raises a separate matter which will be relevant when discussing what the cure might be. For present purposes it is sufficient to record that a wide range of witnesses, commentators, observers and interested parties have stated or opined that not all is well in the state of the culture, practices and ethics of the press: the complaints cannot be dismissed, as parts of the press have sought to do, as the whining of a few disgruntled celebrities. The ground having being set, a thumb-nail sketch of the complaints of unacceptable press practice will now be set out under thematic sub-headings, recognising always a considerable element of overlap between many of these.
1.10
Transcript of the proceedings before Gross J on 26 January 2007, p70E p66, lines 4-11, James Dingemans QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofAfternoon-Hearing-23-July-2012.pdf 5 pp7-8, lines 25-2, Rhodri Davies QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofAfternoon-Hearing-24-July-2012.pdf 6 p53, lines 23-24, Michael Gove, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-29-May-2012.pdf
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Chapter 3 | Complaints of an Unethical Press
2. the complaints
Failing to respect individual privacy and dignity
2.1 An overarching complaint which encompasses many of the individual cases set out below is that the press has failed always to treat individuals with common decency, and has failed always to respect individual privacy. This encompasses many of the unethical techniques complained of, including phone hacking, surveillance, blagging and harassment. It is also exemplified by complaints relating to the publication of private and/or sensitive material without any public interest justification, and the intrusion into grief or shock. Three of the case studies examined below7 are prime examples of this tendency: the way in which parts of the press treated the Dowlers, the McCanns, and Christopher Jefferies indicates a press indifferent to individual privacy and casual in its approach to truth, even when the stories were potentially extremely damaging for the individuals involved. Further evidence relevant to this complaint included Sienna Millers complaints of harassment, and the intrusion into the private grief of Anne Diamond and Baroness Hollins. Further evidence suggesting that parts of the press have failed to respect individual dignity and privacy were the examples seen by the Inquiry of the access and publication of sensitive personal information, including medical information, without any or any adequate consideration of the rights of, and effects on, the person in question and his or her family. Examples included the publication of confidential medical information relating to one of Gordon Brown MPs children in 2006, and the publication of extracts of the Kate McCann diaries in the NoTW in 2008: these are both the subject of detailed analysis below. The key issues to be considered under this heading are whether practices existed within the press consistent with an unethical culture of seeing individuals (and celebrities in particular) as objects, that is to say, simply as material for a story; whether there was an unethical cultural indifference to the consequences of exposing private lives; and, whether there was an unethical cultural indifference to the public interest in exposing private lives, exemplified by failures to put in place adequate procedures to ensure that potentially relevant public interest considerations were addressed and recorded.
2.2
2.3
Unlawful or unethical acquisition of private information

Phone hacking 2.4 A number of witnesses have alleged that they were the victims of phone hacking, in all but one case at the hands of a private investigator engaged, and perhaps journalists employed, by the NoTW.8 Much of the supporting evidence is derived from the notebooks of the private investigator, Glenn Mulcaire, currently the subject of detailed review by the officers involved in Operation Weeting. Additionally, reliance may safely be placed for present purposes on the admissions and settlements made by News Group Newspapers in the civil proceedings and the acknowledgements that such actions were unacceptable and wrong made by representatives of that company, News International, and News Corporation before the Culture, Media and Sport Select Committee and the Inquiry itself.
7 8
Part F, Chapter 5 See the evidence of Charlotte Church, Sally and Bob Dowler, Mary-Ellen Field, Hugh Grant and Sienna Miller
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2.5
Notwithstanding the number of arrests which have been made to date,9 it is still not clear just how widespread the practice of phone hacking was, or the extent to which it may have extended beyond one title; and, in the light of the limitations which necessarily impact on this aspect of the Inquiry because of the ongoing investigation and impending prosecutions, it is simply not possible to be definitive. The evidence of Paul McMullan, Sharon Marshall and James Hipwell points to phone hacking being a common and known practice at the NoTW and elsewhere. In relation to other titles, the degree of knowledge, acquiescence and turning of the metaphorical blind eye may be difficult to assess quantitatively on the basis of the evidence the Inquiry has received (although a fuller analysis of this issue will be conducted below);10 in qualitative terms, however, valuable evidence was obtained from witnesses such as Piers Morgan, Heather Mills, Jeremy Paxman and Dominic Mohan. Although the Regulation of Investigatory Powers Act 2000 (RIPA) contains no defence of acting in the public interest, the Inquiry has examined the extent to which it could be argued that the hacking of voicemails was carried out in pursuit of stories which could properly and fairly be characterised as being in the public interest. There is no evidence that this is so: to such extent as the evidence has been ventilated, the hacking of voicemails was systematically deployed to garner pieces of gossip and tittle-tattle about the lives of celebrities and those otherwise in the public eye whether as victims of crime, politicians or potential sources for stories; in other words, to intrude into their privacy without any conceivable justification that could truly be argued to be in the public interest. Whereas in other contexts it has been argued by the press, or sections of the press, that there is a public interest in freedom of speech itself, and that an editor should be permitted to decide where the ethical balance falls, no such argument has been aired in this particular context. Put at its very lowest, the Inquiry will need to consider whether, at least until 2006, there existed a culture within the press of indifference to the unlawfulness of the practice of phone hacking (or a lack of understanding of its unlawfulness, which itself is difficult to justify) and to its unethical nature. It will also be necessary to consider whether the evidence received is sufficient to reach conclusions in respect of the use of phone hacking at titles other than the NoTW. Blagging
2.6
f
2.7
2.8
Aside from the evidence generated by Operation Motorman,11 a number of witnesses told the Inquiry how their privacy had been breached in contravention of the Editors Code and also potentially section 55 of the Data Protection Act 1998, through the technique known as blagging. A flavour of this evidence may be given by furnishing a number of examples. In her witness statement12 JK Rowling stated that, during the course of 1998, she received a telephone call purportedly from the Post Office. The caller explained that they had a package that the Post Office wanted to deliver but that they did not have Ms Rowlings address. On the face of it, this was a remarkable claim and, on being pressed to justify it by Ms Rowling, the caller swiftly hung up. It is difficult to avoid the inference that this was a journalist seeking personal information. Ms Rowlings husband-to-be appears to have received similar treatment by the press in 2000.13 He was telephoned by a person claiming to be from the tax office seeking information regarding his address and earnings, and this was duly disclosed.
Part E, Chapter 5 Part F, Chapter 6 11 Part E, Chapter 4 12 p25, para 53, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-JK-Rowling2. pdf 13 p26, para 54, ibid
10
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The following day this information was published by a Scottish newspaper and the paparazzi duly descended on Ms Rowlings future husbands home. The inference that the caller was a journalist is here even stronger. 2.9 HJK14 gave a similar account of being the likely victim of this technique.15 Again, there was a telephone call from someone claiming to be from the Royal Mail, but, on this occasion, the assertion was made that the address on a package had been ripped off and all that was left was the intended recipients mobile phone number. HJK provided his/her address and later that month received an unwelcome visit from a journalist determined to find out whether he/she was in a relationship with X. The journalist was adamant as to the reliability of his sources, and subsequently proposed that HJK should come to an arrangement with him regarding the disclosure of information. HJK refused to do so. Overall, and in a similar manner to phone hacking, the Inquiry will need to consider whether there was a culture of indifference within the press as to the lawfulness of blagging (or a lack of understanding as to its unlawfulness), and to its unethical nature. Email hacking 2.11 The present state of affairs in relation to Operation Tuleta is set out elsewhere.16 Given its current status it is difficult to reach any conclusions of a generic nature in relation to email hacking, save to observe that it remains possible that a considerable quantity of criminality will be exposed in due course. Bribery and corruption 2.12 Again, the present state of affairs in relation to Operation Elveden is set out elsewhere.17 As of 31 October 2012 (Deputy Assistant Commissioner Sue Akers fourth witness statement) a total of 52 individuals had been arrested by officers working on Operation Elveden; of these, 27 were current and former journalists (including journalists from The Sun; the Daily Mirror and its sister paper, the Sunday Mirror; and the Daily Star Sunday).18 In an important piece of evidence, DAC Akers pointed out that offences of this nature were suspected to have been committed in at least three separate newspaper groups right up to early 2012.19 The fact that these arrests have occurred does not of course prove that an unlawful and unethical practice existed within the press of inducing, or seeking to induce, public officials to disclose confidential information about individuals or organisations; given the test required to justify arrest in the first place, it merely raises reasonable grounds to suspect that various offences may have been committed. Further, the ongoing criminal investigation hampers the ability of the Inquiry to explore the available evidence. Recognising these constraining factors, these developments cannot be dismissed as irrelevant.
2.10
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14 15
Witness anonymised under section 19 of the Inquiries Act 2005 to protect his or her Article 8 rights p2, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-HJK.pdf 16 Part E, Chapter 6, sub-section 2 above 17 ibid 18 pp5-8, paras 14-23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Fourth-Witness-Statement-ofDAC-Sue-Akers.pdf 19 pp6-8, paras 22-24, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Third-Witness-Statement-ofDAC-Sue-Akers.pdf. It must be emphasised that suspicion is no more than that. Every suspect remains innocent unless and until a criminal court determines otherwise
475
Surveillance, subterfuge and similar intrusive methods 2.14 A number of witnesses, as well as those contributing submissions on the Inquiry website, have described the use of covert surveillance or intrusive subterfuge by journalists or their independent contractors as a means of uncovering stories. This testimony covers a range of different techniques: by way of example, the deployment of private detectives to carry out what might be described as traditional surveillance of subjects; the recording of telephone conversations with subjects, sometimes coupled with the giving of assurances which are not kept; and the use of long-lens photography. At the very least, the issue arises of whether journalists give any, or any adequate, consideration to such surveillance being likely to generate relevant information in the public interest. The evidence of journalists Sharon Marshall and Paul McMullan, which appeared to confirm the widespread use of such techniques by parts of the press, must be treated with a degree of caution. But it must also be considered in light of other evidence heard by the Inquiry. That evidence included the logbooks of private investigators Derek Webb20 and Matt Sprake21 which showed newspaper titles having commissioned covert and sometimes extended surveillance on hundreds of individuals, most of them so called celebrities, over a number of years. Mr Sprakes evidence that ethical questions were for the newspapers which commissioned his work rather than for him emphasised the importance of newspaper oversight of third parties. Evidence from targets of intrusive press techniques also supported the evidence of Ms Marshall and Mr McMullan. The inquiry heard of the gross intrusions into the privacy of lawyers Charlotte Harris and Mark Lewis by News International. It also heard of the paranoia caused by the surveillance on, and/or threats received by, politicians Tom Watson MP and Chris Bryant MP. Other witnesses, including Steve Coogan, gave evidence of the use by the press of duplicity and subterfuge to acquire stories that could not possibly be justified by the public interest. The Report will need to consider the extent to which these practices and others were sporadic and limited or widespread and/or cultural within parts of the press.
2.15
2.16
f
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Unlawful or unethical treatment of individuals

Harassment 2.18 A number of witnesses testified to a range of practices, including the use of intrusive photography, pursuit by photographers whether on foot or in vehicles, door-stepping and staking out. Here again the Inquiry will need to consider whether a culture existed within the press, or a section of the press, which encouraged or condoned these practices; or, insofar as these practices were perpetrated by independent contractors, which failed to ensure that sufficient steps were taken to ascertain whether information, photographs and data were acquired in a context in which an individual was subject to harassment. Amongst the most cogent evidence of harassment of this nature was that given by the actress Sienna Miller. She gave a powerful account of acts of dangerous driving, and of being harassed, verbally abused and spat at by freelance photographers, until, that is, a court order protected her from such conduct in the future:22
2.19
20 21
p4, para 9, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Derek-Webb.pdf pp3-10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Matthew-Sprake. pdf Mr Sprake may prefer to call himself a photographer, but in substance he was a private investigator equipped with a camera 22 p24, lines 12-18, Sienna Miller, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-24-November-2011.pdf
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I would often find myself I was 21 at midnight running down a dark street on my own with ten big men chasing me and the fact that they had cameras in their hands meant that that was legal, but if you take away the cameras, what have you got? Youve got a pack of men chasing a woman and obviously thats a very intimidating situation to be in. 2.20 Ms Marshall in Tabloid Girl has written about the efforts that both she and her colleagues went to secure a story; common practices included the aggressive door-stepping of individuals. In one notable instance she described her efforts to door-step the broadcast journalist, Jeremy Paxman, by putting the same question to him 14 times,23 in an attempt to report on rumours of an extramarital affair.24 She described other occasions in which, whilst in pursuit of a story, she harried individuals at their home and refused to comply with requests to desist in her attempts to obtain a quote or break a story.25 Ms Marshalls memoirs (which she sought to dilute in her evidence by talking about the use of top-spin) record a pattern of behaviour which is also described by a number of witnesses. Ms Miller, Sheryl Gascoigne and the McCanns gave consistent evidence of high-speed car chases by journalists and press photographers. Ms Gascoigne explained how, following her marriage to the footballer Paul Gascoigne, she was subjected to intense press scrutiny that sought to depict her as a money grabber and the cause of her husbands issues with addiction and mental illness. This scrutiny went beyond coverage of her public appearances and extended to the sustained harassment of her in and around her home. At times it took extraordinary forms. One journalist followed Ms Gascoigne and her children from their home in Hertfordshire to the Bluewater shopping centre in Kent.26 In very different contexts, Christopher Jefferies and Kate and Gerry McCann described their experiences of sustained scrutiny and intrusion following the well-publicised events which attracted press interest. All three witnesses described how journalists and press photographers camped outside their homes, sometimes for days on end, making it impossible for them to go about their daily lives or indeed live comfortably or securely in the family home.27 In his witness statement Dr McCann told the Inquiry how at times his car was mobbed by journalists and photographers as he, or his wife, tried to drive with their family from their home. He recalled that journalists and press photographers banged on the car windows and shouted at the family even though their young children were not only visible but were also clearly distressed by such behaviour.28 Intrusion into grief or shock 2.24 A number of witnesses told the Inquiry of occasions when journalists and press photographers intruded into moments of grief, shock and similar personal difficulty, in the face of clause 5 of the Editors Code and the wish of the witnesses to be left in peace. For example, Anne Diamond, the broadcast journalist and presenter, described how following the loss of her infant
2.21
2.22
2.23
Ms Marshall claims that this was replicating Mr Paxmans interview of a well-known politician in the 1970s Marshall, S, Tabloid Girl, pp51-52 25 ibid, passim 26 p6, paras 23-24, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-SherylGascoigne.pdf 27 For broadly convergent accounts by other witnesses see: p8, para 24, http://www.levesoninquiry.org.uk/ wp-content/uploads/2011/11/Witness-Statement-of-Charlotte-Church.pdf; pp3-6, paras 11-20, http://www. levesoninquiry.org.uk/wp-content/uploads/2011/11/Supplemental-Witness-Statement-of-Hugh-Grant.pdf; see p5, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-JK-Rowling2.pdf 28 p8, paras 47-48, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-GeraldPatrick-McCann.pdf
24
23
477
son through cot death, she wrote to all the editors of the national newspapers asking them to stay away from the funeral. However, she told the Inquiry that she saw a photographer in the vicinity of the church, and that a photograph of her and her husband was then published on the front page of The Sun above a bogus story entitled Annes plea. The editor of The Sun rejected Ms Diamonds husbands request not to publish the photograph29 and, following what she described as emotional blackmail, the family subsequently succumbed to pressure placed on them by the paper to join forces with The Sun to raise funds in aid of cot death research, rival papers carrying spoiler stories shortly thereafter.30 Thus, what should have been an intensely private moment of personal anguish was rendered all the more difficult and distressing. 2.25 Ms Diamonds evidence on this topic related to events which occurred nearly 20 years ago, but not dissimilar evidence was given by Professor Baroness Sheila Hollins whose daughter Abigail was the victim of a brutal knife attack in April 2005. She told the Inquiry how a journalist tricked her way into the home of Baroness Hollins terminally ill mother and refused to leave until she was given a photograph of Abigail; eventually the police had to be called to secure her departure.31 Similar acts of press intrusion and insensitivity included attempts to photograph Abigail at her grandmothers funeral,32 the taking and publishing of photographs of the whole family during a trip to Lourdes,33 and surveillance of the entrance to Abigails home for a number of weeks. When one of the journalists in question was approached, he is alleged to have said that he was doing nothing wrong.34 Discrimination and the treatment of women and minorities 2.26 The evidence bearing on this topic is addressed in Section 3 below when discussing the nature of the harm caused to public discourse by unacceptable press practices. The issue for consideration below35 is whether an unethical culture, and concomitant practices, have existed within the press in relation to the discrimination and the treatment of women and minorities, in particular by demonstrating and fostering prejudice, unfairness and lack of respect and dignity, and failing to avoid prejudicial or pejorative reference to individuals race, colour, religion, transgender, gender, sexual orientation or disability.
Inaccuracy and inaccessibility

2.27 Many witnesses have complained of stories about them being inaccurate or misleading (see, for the most egregious examples, the evidence of Christopher Jefferies and the McCanns); some have gone further to allege that evidence and quotations are deliberately fabricated in order to substantiate a story, add colour to it, or to pursue a particular line. Furthermore, organisations such as Full Fact have drawn to the Inquirys attention many examples of allegedly knowingly inaccurate or misleading reporting in areas such as asylum, immigration and climate change.
p73, lines 6-15, Anne Diamond, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-28-November-20111.pdf 30 pp73-75, lines 16-18, Anne Diamond, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-28-November-20111.pdf 31 p14, lines 15-23, Professor Baroness Hollins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/ Transcript-of-Afternoon-Hearing-2-February-2012.pdf 32 p2, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Baroness-Hollins. pdf 33 p2, para 9, ibid 34 p2, para 10, ibid 35 Part F, Chapter 6
29
478
2.28
The point has already been made above36 that it is in the nature of journalism that mistakes will be made: indeed, that is an unavoidable aspect of human nature itself. Deliberate falsification (or reckless reporting) of material and evidence is, of course, another matter altogether. The Inquiry will need to determine whether culture and practices exist within the press which fall short of the standards of accuracy which can reasonably be expected to be in the public interest. As part and parcel of this overall assessment, consideration will need to be given to whether, in particular, insufficient standards of care have been applied to avoiding the publication of inaccurate, misleading or distorted information, including pictures; and of whether misleading or inaccurate headlines have been deployed, knowingly or otherwise, with a view to attracting purchases. Justice cannot be done to all the multifarious complaints of inaccuracy which the Inquiry received. Instead, for present purposes the focus will be on the evidence of a number of journalists. Both Richard Peppiatt and Sharon Marshall pointed to a propensity in some parts of the press towards a form of lazy journalism where quotes were made up to back a particular line in a story,37 or where entire stories were built around fabricated quotations.38 Both were also clear that in the newsrooms in which they worked this practice was neither limited to a small number of journalists nor deprecated. Rather, the practice was widespread, managers were aware of it and even offered cash incentives to staff.39 It should be noted that this evidence has been strenuously denied by the papers concerned and that its quality wholly depends on the assessment the Inquiry makes as to their credibility and reliability as witnesses. Similar evidence was provided to the Inquiry by Chris Atkins, the director of Starsuckers, a documentary on the willingness of tabloid newspapers to run stories supplied by third parties with little or no basis in truth. Mr Atkins described supplying one newspaper with a fabricated story about a particular celebritys hair catching on fire at a party. In addition to running the story without making due efforts to check its authenticity, the paper further embellished the story by inventing a pithy conclusion: the paper wrote that another person at the party had put the fire out by punching the woman in her barnet.40 Evidence of falsification and inaccuracy presented to the Inquiry goes beyond the fabrication of single or even small numbers of facts associated with a story or with a witness. Hugh Grant gave evidence about the publication in the Sunday Express of an entire article supposedly written by him; in fact, he had had nothing to do with it.41 In a revealing exchange with Robert Jay QC, Dawn Neesom, the editor of the Daily Star, said this:42 Q. There might be a kernel of truth in the story, but in order to make it more appetising and entertaining to its readers, which obviously you are plugged into A. Yes, of course.
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Part F, Chapter 2 pp2-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Richard-Peppiatt.pdf; and Marshall, S, Tabloid Girl, p227-228 38 pp2-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Richard-Peppiatt.pdf; and Marshall, S, Tabloid Girl, p201 39 pp2-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Richard-Peppiatt.pdf 40 p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Chris-Atkins1.pdf 41 pp9-10, lines 24-17, Hugh Grant, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-21-November-2011.pdf 42 P41, lines 17-23, Dawn Neesom, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-12-January-2012.pdf
37
36
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Q. you spin, embroider and weave around the edges of the story. Does that happen? A. Its I wouldnt quite put it in those words, but as I say, its written in a style that we know works for our readers. 2.33 On a separate but related topic, a considerable number of witnesses and commentators have complained about the use of misleading and inaccurate headlines, often it seems knowingly used in order to attract custom. By way of example only, a number of such instances were put to Ms Neesom,43 and at least in one case she deployed the somewhat euphemistic adjectives dramatic and eye-catching to characterise the inaccurate headline used. She also accepted in this context, and perhaps in others, that newspapers do on occasion cross lines.44 As with all these complaints of unethical conduct, an assessment will need to be made below45 as to whether this particular problem is sporadic on the one hand or illustrative of a cultural strand within press practice on the other. Aside from these complaints of inaccuracy, the Inquiry has also received a body of evidence which, on analysis, may be characterised as amounting to a generic complaint of it being difficult, if not impossible, for readers to assess for themselves the evidential basis for what is apparently being put forward as fact. This evidence may be categorised as follows: that there has been an insufficiently clear distinction between comment, conjecture and fact, as required by clause 1 of the Editors Code; that insufficient information has been provided in relation to the sources of material published, on occasion giving rise to the suspicion if not the inference that the source did not exist; and, that insufficient care has been taken in relation to the special public interest in the understanding of material relating to public health, medical and other scientific matters. It is fully understood that each of these three categories gives rise to its own set of problems. Newspapers are, of course, entitled to speculate and to offer their own opinions, and the definition of what is fact is capable of being controversial, depending on the context. Furthermore, as a number of Core Participants have pointed out, with reference to legal authority, the distinction between fact and opinion in the specific context of the law of defamation is itself one of judgment: each does not require a separate, self-contained article or section of the newspaper, provided that it is reasonably clear to the reader from the tone and language used which is which. However, the complaint that has frequently been made is that, even with this element of latitude, fact and opinion are often so co-mingled that the reader is misled. Clause 1 of the Editors Code correctly recognises the importance of this distinction, particularly in circumstances where the reader is placing trust in the newspaper as a reliable purveyor of news as fact. Many have complained that clause 1 is more honoured in the breach than in the observance, and the validity and strength of this complaint will therefore need to be assessed. The issue of journalistic sources is more controversial, not least because clause 10 of the Editors Code places a moral obligation on journalists to protect their confidential sources. If this obligation were to be interpreted as being absolute, in the sense of being incapable of yielding to countervailing public interest considerations, then clause 10 itself would be exceptionable as going further than the protections accorded to journalists under Article 10 of the ECHR and the law of contempt. In any event, there is a wider concern here, namely that journalists may not always act ethically when invoking what protections they should properly enjoy. The evidence heard from Richard Peppiatt, Alastair Campbell, Hugh Grant and Magnus
2.34
2.35
f
2.36
2.37
43 44
pp52-58, lines 16-22 and pp62-67, lines 25-14, Dawn Neesom, ibid pp56-57, lines 17-1, Dawn Neesom, ibid 45 Part F, Chapter 6
480
Boyd raised the strong suspicion, even if it did not provide conclusive evidence, that some journalists habitually refer to sources even where the latter do not exist or where they have never said that which is attributed to them. But readers will never know where the truth lies, and will never acquire the means of finding out, because abuses of the system are extremely difficult to prove. The anonymous source (and one who truly requires anonymity as the price for giving up the story) can of course be an extremely valuable tool in the hands of the ethical and scrupulous journalist, but the possibilities for abuse are legion. An assessment will need to be made as to the extent to which the important principle of the anonymous source is abused, even if there is no obvious solution to that abuse. 2.38 The third category of complaint under this rubric is one articulated by a number of special interest groups in relation to scientific, medical and public health reporting: not simply is the concern one of inaccuracy, it also covers a failure to provide sufficient information to facilitate public understanding of what can often be complex and multi-faceted issues, where there may be no right answer. The complaint has been variously expressed: as one of imbalance; or one of unreliability; and, in clear-cut instances, as one of frank inaccuracy. Again, it is appreciated that complex issues have to be set out in a manner comprehensible to readers, and that newspapers often succeed in distilling and presenting these in an admirably user-friendly fashion. The issue which arises, though, is whether there exists a strand of unacceptable practice within the press which needs to be recognised and addressed.
Treatment of critics and complainants

General discouragement of public criticism 2.39 Numerous individuals in public life have complained in evidence to the Inquiry that they have been afraid or unwilling to confront the power of the press, or putting the matter another way, failings in the culture, practices and ethics of the press owing to concerns about personal attack and vilification. The issue for consideration is not whether these fears are honestly held (given the weight of convergent evidence, this could not seriously be disputed) but rather whether the press has by its conduct caused, fostered or permitted such an atmosphere to exist and be perpetuated whereby such fears have naturally spread. The corpus of evidence relevant to this issue is vast, but for present purposes it can be considered in three parts. First, the Inquiry heard evidence of overt intimidation of those who had criticised the press. For example, after writing critical articles about the Daily Star in particular, and the tabloid press in general, Richard Peppiatt received threatening phone calls and text messages saying that he was a marked man until the day you die. Similarly, while Hugh Grant was criticising tabloid press ethics while appearing on Question Time, the mother of his child was called and told to Tell Hugh Grant to shut the fuck up. Second, a significant number of the witnesses who testified during the first two weeks of Module One gave evidence of their fears of, or actual retaliation, by the press in response to complaints. JK Rowling made the point very compellingly in these terms:46 I would like to emphasise that what Im about to say does not apply to the whole of the British press, but it is my experience with certain sectors of the British press. If you lock horns with them in this way, if you protest or you make a complaint, then you can expect some form of retribution fairly quickly, and I thought the fact that in this case a picture of my child was put into the papers, so very quickly after Id asked them not to print my address, I thought that was spiteful, actually. Just spiteful.
46
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2.41
p68, lines 14-23, JK Rowling, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-24-November-20112.pdf
481
2.42
Her experience was consistent with a body of evidence received by the Inquiry suggesting that a practice has existed within the press of obtaining or publishing material about individuals or organisations with whom they have been in dispute or disagreement, in circumstances where it is legitimate to conclude that the aim was to pay back or punish for the disagreement by causing distress, embarrassment or discomfort, rather than because the article had a public interest for the readership. Two possible examples of this practice may be provided at this stage although each will be discussed in greater detail below.47 The first concerns what may be described as real-time evidence generated by or during the course of the Inquiry: the Daily Mail accused Hugh Grant of a mendacious smear after he had given evidence to the Inquiry when he speculated that his voicemail had been hacked by or on the instructions of Daily Mail journalists.48 Second, a very similar sort of allegation was made by The Sun against Gordon Brown MP in relation to his claims of how the paper had obtained details of his sons medical condition.49 The terminology used by the paper was that Mr Browns allegation had been false and a smear.50 The very obvious parallels between the two stories are notable, and an assessment is made below51 of the extent to which the press response in those examples was fair and/or to what extent it reflected a wider culture of aggressive defence. Third, examples were provided of aggressive press attacks on decision makers who brought proposals, or made decisions, perceived to be adverse to parts of the press. Vitriolic attacks by The Sun on female critics of Page 3 were prime examples. A further example was the press response (and not just the NoTW) to Max Mosleys victory in his privacy action before Mr Justice Eady, which often appeared high in critical volume but low on reasoned and measured analysis. Some editors resorted to ad hominem attack, characterising the judge as being arrogant and immoral.52 Adverse comment about judges, and in relation to judicial decisions, can be entirely legitimate and represent the proper exercise of the right to challenge: I am not, for one moment, seeking to suggest otherwise. In this case, however, as was pointed out in the Culture, Media and Sport Select Committee Report on Press Standards, Privacy and Libel,53 the criticism of the ruling was too often based on a frank misunderstanding of the judicial role in applying the well-established principles set out in Article 8 of the ECHR as explained by the Strasbourg court. In any event, it is worth pointing out that if, Mr Justice Eady had erred in this regard, it was open to News International to appeal his decision to the Court of Appeal: it did not do so. Had there been good grounds of appeal, it is implausible that News International would not have sought to exercise its rights. The point goes further: quite apart from the extent to which titles do, in fact, write critically about those who have challenged them (all in the name of the exercise of free speech), the climate is such that that there is an undeniable perception that this is precisely what will
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2.45
47 48
Part F, Chapter 5 pp85-94, lines 5-21, Paul Dacre, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-6-February-20121.pdf, pp89-125, lines 20-11, Paul Dacre, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/02/Transcript-of-Afternoon-Hearing-9-February-20121.pdf; p9, line 14, Hugh Grant, http:// www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Afternoon-Hearing-21-November-2011. pdf; pp30-65, lines 2-16, Liz Hartley, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-11-January-2012.pdf 49 pp26-34, lines 5-12, Gordon Brown, https://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-11-June-2012.pdf; p8, https://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/WitnessStatement-of-Gordon-Brown-MP.pdf 50 p34, lines 19-25, Rebakah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-11-May-2012.pdf 51 Part F, Chapter 5 52 Speech to the Society of Editors 9 November 2008, http://www.pressgazette.co.uk/story.asp?storycode=42394 53 paras 68-76, http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/362i.pdf
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happen. Witnesses were reluctant to give evidence because of the fear of press retribution; some overcame that expression of fear but others did not. I do not make any finding or reach any conclusion based upon what is not part of the evidence but the same inference may be drawn from the unwillingness of journalists to speak out (which resulted in the necessity to hear evidence anonymously through the National Union of Journalists). The fear of journalists was not merely that the relevant title would not employ them: it was that a consequence of speaking out would be that they would no longer be able to obtain any employment in the national press. This feature alone raises real concerns about the culture and practices of the press, in closing ranks and refusing to accept and recognise that legitimate debate about its own role and methods of working is not to be shut down but encouraged. Failure to take reasonable steps to pre-notify 2.46 Article 8 of the ECHR does not place an obligation on newspapers to pre-notify the subjects of intended stories as a matter of course54 and it is easily understood why some stories cannot be the subject of pre-notification. However, concerns have been expressed during the course of the Inquiry that, in some of those cases where pre-notification did not occur, culture and practices have existed within a section of the press of deliberate decisions not to take reasonable steps to pre-notify the subjects of news articles in advance, without there being a good reason not to do so. The principal aim of this was to unfairly deny the subject of the article the possibility of verifying or challenging it, or to ensure that the story is not lost to a competitor. A number of journalists and editors testified to a reluctance to pre-notify in certain situations; the evidence relating to Max Mosleys privacy action and the publication of the Kate McCann diaries provides a powerful insight into the key drivers of press conduct in this type of situation. Each of these cases is considered as an individual example below,55 but the absence of pre-notification is not examined as a problem to be addressed generally. All the evidence suggested that a failure to pre-notify was the very rare exception rather than a recurring practice or culture within the press. Failures to take reasonable steps to remedy 2.47 Numerous witnesses gave evidence to the Inquiry of the difficulties they have faced in seeking an opportunity to reply to inaccuracies in stories (notwithstanding clause 2 of the Editors Code) and in securing corrections or apologies, either at all or published with suitable prominence. Given the weight of evidence bearing on this issue (which is considered in detail below),56 it may well be difficult for anyone to deny the existence of a problem;57 it will, however, be necessary to examine whether its manifestation may fairly be characterised as illustrative of a cultural failing in the press or a section of the press.
3. the harm
3.1 Overall, it is possible to group these complaints of unethical practices by the press under two general headings. First, there are a series of complaints which, however formulated, amount in essence to an allegation that the press have failed to respect the rights and personal autonomy of individuals in circumstances where there is no, or no sufficient, public interest justification for that failure. Second, there are complaints of inaccuracy in press reporting, either in relation to what individuals have or have not done, or in relation to what might be described as matters of general public interest.
54 55
Mosley v UK 2011 (Application No 48009/08) Part F Chapter 5 56 Part F, Chapter 6 and Part J, Chapter 5 57 pp56-57, lines 23-5, Sir Christopher Meyer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-31-January-2012.pdf
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3.2
All the ramifications of unethical conduct by the press need fully to be understood. Some of these may be obvious: defamatory reporting in relation to individuals is capable of destroying reputations although an action in libel goes some way to restore the position. Breaches of privacy may also do the same, and the fact that a story happens to be true (although it should never have been published) may lead to damage which cannot be repaired. This consequence is not inevitable because a breach of privacy which does not result in publication of any story may have only very limited (if any) adverse consequences: the private information may only be shared between a handful of journalists who themselves decide to keep it private. However, this prospect aside, some of the consequences of unethical conduct by the press are less obvious and therefore require exposition. Furthermore, consideration needs to be given to the broader, and perhaps deeper, consequences for a mature democracy respectful of the rights and freedoms of individuals of inaccurate and unjustifiably intrusive press reporting. This section of the Report will begin to examine these issues.
Consequences of intrusive reporting

Phone hacking 3.3 While phone hacking itself is a silent crime inasmuch as the victim will usually be unaware of, or not even suspect, the covert assault on his or her privacy, its consequences both direct and indirect have often been serious and wide-ranging, as the evidence submitted to the Inquiry and separately generated by the phone hacking litigation has demonstrated. The Inquiry has heard how the details of private lives, known only to the witnesses testifying (in other words, the targets of voicemail hacking) and their most trusted confidants and friends, became the subject of articles in the press.58 Further, evidence was also received that, as a consequence of voicemail hacking, journalists and press photographers were able to record moments that were intensely private, such as relationship breakdown,59 or family grief, without either the knowledge or input of the individuals concerned. Sienna Miller explained how she was the subject of many articles either speculating on or reporting the state of her relationship with the actor Jude Law. In many cases, the information that had formed the basis of these articles had been known only to Ms Miller, Mr Law and a very small number of confidants who had not shared the information further.60 Ms Miller gave a graphic description of the fall-out from the voicemail hacking which News International has, of course, admitted took place. This included the corrosive loss of trust in aspects of family life, in relationships and in friendships, Ms Miller assuming, understandably, that her inner circle was the source of stories in the press.61 She described herself as torn between feeling completely paranoid that either someone close to [her] [a trusted family member or friend] was selling this information to the media or that someone was somehow hacking [her] telephone. On one occasion she sat down with close family members and friends in one room and accused them of leaking stories to the press. Ms Miller explained that she felt that every area of her life was under constant surveillance; she felt violated, paranoid and anxious. Other witnesses have told the Inquiry how they have lost friends and confidants as a consequence of the paranoia and mistrust engendered by phone-hacking. For example, Mary-Ellen Field described the damage done to her reputation and livelihood as the consequence of what she
3.4
3.5
58 59
pp2-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Sienna-Miller.pdf p3, ibid 60 p3, ibid 61 pp2-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Sienna-Miller.pdf; p6, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Mary-Ellen-Field2.pdf; p10, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Charlotte-Church.pdf
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believed to be the hacking of Elle Macphersons voicemail. Given the publication of a number of articles about Ms MacPherson which set out in detail confidential information concerning her personal and private life, of which Ms Field had direct knowledge, Ms MacPherson assumed that Ms Field must have been the source of those stories. Ms Fields refusal to acknowledge responsibility led to accusations of illness and then alcoholism for which she subsequently underwent treatment. Finally it was decided that Ms Field was incapable of carrying out her employment to the required standard and she was dismissed from her position. This led to financial difficulties and the loss of friendship.62 Ms Field has also made clear how difficult it has been to restore her reputation once such damage had been done.63 Other intrusive conduct 3.6 The Inquiry has heard how the disclosure in the press of embarrassing or personal details not only impacts on the self-esteem and reputation of the person involved, but also affects others around them as well. For example, the spouses and children of witnesses have been subjected to bullying and abuse as a consequence of stories written about them. Garry Flitcroft described the abuse directed at his children at school following the publication of stories in the press about him.64 He detailed how abuse by rival fans was so hurtful and offensive that his father could no longer watch him play football; he also believes that this ultimately contributed to his fathers suicide.65 Witnesses have also spoken about the distress caused to spouses and partners by the aggressive pursuit of kiss and tell stories and the knock-on effects of disclosures of infidelity. In a number of cases the disclosure of marital infidelity is believed to have led or contributed to a suicide attempt, or had a deleterious impact on the health of vulnerable members of the family. Charlotte Church said that her mother found articles published by the News of the World about her fathers infidelity, without forewarning, so distressing that it led to an attempt take her own life.66 The Inquiry has heard similar testimony from Max Mosley, who has expressed the belief that the constant, unflattering and unpleasant coverage of him was a contributing factor in the suicide of his son.67
3.7
3.8
Consequences of inaccurate reporting

3.9 The potential damage done by inaccurate reporting can extend well beyond the intrinsic harm attendant on the distortion of fact. Witnesses have explained that it can cause much greater distress, anguish and pain. Taking perhaps the most extreme and unsettling example, Margaret Watson has set out her belief that inaccurate and partial reporting of the murder of her daughter, Diane, contributed significantly to the suicide of her son, Alan, who was unable to cope with the unsubstantiated allegations levelled at his dead sister.68 This evidence chimes with a number of submissions and witness statements received by the Inquiry from ordinary
62
p7, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Mary-Ellen-Field2.pdf News International has sought summary judgment on Ms Fields claim against it in the Chancery Division. It is believed that the basis of the application is not that Ms Fields version of events is necessarily incorrect, but that there is no evidence that her voicemail, as opposed to that of Ms Macpherson, was hacked. This gives rise to a number of legal arguments not relevant for the purposes of the Inquiry 64 p8, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Garry-Flitcroft.pdf 65 p8 ibid 66 p9, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Charlotte-Church.pdf 67 p13, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Max-Mosley.pdf 68 pp4-6, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Margaret-Watson. pdf
63
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members of the public who have reported their experiences of inaccurate reporting, and subsequent refusal by the press to engage with attempts to correct those inaccuracies. In a number of cases, that coverage has concerned the suicide of a family member. 3.10 Evidence of factual misreporting does not merely relate to suicide but also to the reporting on cases of murder. For example, the Director of Support After Murder and Manslaughter in Northern Ireland (SAMM NI), Pam Surphlis, described the routine inaccurate reporting by newspapers of murders committed in the Province. These inaccuracies related to the family details, age and background of the victims, and overall sensationalising of the murders, with damaging consequences for the families of the victims.69 In her oral evidence Mrs Surphlis referred to the newspaper coverage of the murder of a 15 year old boy in which the victim was described as a heroin addict, when in fact he was diabetic.70 She noted that once it goes in, whether right or wrong, it becomes fact.71 Mrs Surphlis also described the press coverage following the murder of her father and sister in 1993. Her father, who was a faith healer, was described as a witchcraft clergyman.72 Further, she gave the example of her sister, who in coverage of her death was always represented in a picture of her wedding dress even though she had endured years of marital abuse, notwithstanding that Mrs Surphlis had provided a different photograph.73 It goes without saying that reporting of this nature is particularly distressing to the family and friends of the deceased. The cases of the McCanns and Christopher Jefferies are especially egregious examples of defamatory and sensationalised reporting causing, in their different ways, personal anguish and distress. These examples are treated in more detail below.74
3.11 3.12
f
3.13
Impact on public discourse

The Inquiry has received submissions and evidence from various campaign organisations or pressure groups, think tanks, community representative groups, professional practitioners, trade bodies and academic institutions complaining of the impact of inaccurate and at times discriminatory and inflammatory reporting on public discourse. This is not a criticism of the right of the press to be partial: it is a complaint specifically directed to inaccuracy. This problem is aggravated by the unwillingness of the PCC to accept complaints from interest groups unless there is an identified victim of the reporting willing to complain. For example, evidence was received from ENGAGE, an organisation set up to promote improved awareness and standards of reporting in the British media of Muslims, as well as to encourage greater political participation and civic engagement of Muslims living in Britain.75 ENGAGE provided examples of what it described as inaccurate, unfair or discriminatory reporting in some parts of the British press.76 In particular, ENGAGE expressed concern at what it suggested was a tendency to present reporting of fringe and extremist elements as
3.14
69 70
pp11-12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-SAMM-NI.pdf p75, lines 11-18, Pam Surphlis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-8-February-2012.pdf 71 p75, lines 17-18, Pam Surphlis, ibid 72 p83, line 4, Pam Surphlis, ibid 73 p77, lines 17-24, Pam Surphlis, ibid 74 Part F, Chapter 5 75 ENGAGE website, www.iengage.org.uk 76 p9, lines 8-14, Inayat Bungawala, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-24-January-2012.pdf; p2, s3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/ First-Submission-by-Engage.pdf
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representative of the viewpoints of British Muslims as a whole.77 Examples of headlines which tended to reinforce that impression, but were without basis in fact, included Poppies banned in terror hotspots and Muslim only public loos. Reference was also made to a front page headline (Muslim plot to kill the Pope), published in the Daily Express in September 2010, which was later admitted to have no basis in fact.78 Although the paper published an apology and correction after a complaint had been made by ENGAGE, Mr Bungawala on behalf of that organisation pointed out that it was a single sentence buried under a news item on page nine.79 Tellingly, he explained that the size and placing of the correction does not mitigate the damage to community relations caused by a front page article of this nature.80 3.15 Similar concerns at the damage capable of being caused to community relations and potentially vulnerable individuals have been raised by other organisations, in particular those representing migrant and refugee communities. Such organisations include The Runnymede Trust, the Refugee Council and the Migrant and Refugee Community Forum. In written evidence submitted to the Inquiry, both the Refugee Council and Migrant and Refugee Communities Forum suggest that some parts of the press seek deliberately (or, at least, recklessly) to conflate statistics for asylum and immigration to imply a growing wave of asylum seekers coming to the UK, despite evidence that the number of asylum seekers has fallen significantly since 2002.81 82 This view is also shared by the Joint Council for the Welfare of Immigrants, which contends that the motive may be a political one.83 The Migrant and Refugee Communities Forum draws attention to a report by the Cardiff University School of Journalism, Whats The Story (2003), which noted that asylum debates tended to focus heavily on statistics and figures which were un-sourced.84 In his book, Democracy under Attack, Malcolm Dean of Sheffield University suggested that certain strands of press reporting on asylum and immigration (and often the strand which may have been only loosely based in fact) have played a role in influencing Government policy on these issues.85 The submissions received in this area went a little further than simply criticising inaccuracies in reporting; they also claimed that there was a tendency in parts of the press to discriminate against certain minorities and to inflame tensions or exacerbate difference. The Refugee Council suggested that some titles were less active than others86 in engaging with organisations who work with the relevant communities when seeking comments for articles on asylum and immigration: consequently, negative content is less likely to be balanced with positive stories.87 ENGAGE drew attention to a report by the Cardiff School of Journalism, Media and Cultural Studies which concluded that, between 2000 2008, references in the press to radical Muslims outnumbered references to moderate Muslims by 17 to one.88
3.16
3.17
3.18
77 78
p32, s1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Submission-by-Engage.pdf p3, s5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/First-Submission-by-Engage.pdf 79 p3, s5, ibid 80 p5, s2-3, ibid 81 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Submission-by-Refugee-Council.pdf 82 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-Migrant-and-RefugeeCommunities-Forum.pdf 83 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Submission-by-Joint-Council-for-the-Welfareof-Immigrants.pdf 84 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-Migrant-and-RefugeeCommunities-Forum.pdf 85 Dean, M, Democracy under Attack 86 p5, para 4.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Submission-by-Refugee-Council.pdf 87 ibid 88 Moore K, Lewis P, Lewis J, Images of Islam in the UK: The Representation of British Muslims in the National Print News Media 2000-2008: http://www.irr.org.uk/pdf/media_muslims.pdf
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3.19
The Runnymede Trust emphasised its concerns in relation to the impact of inflammatory reporting by reference to an article published in the NoTW in 2003, which purported to describe the cost of moving a refugee family. It ran under the headline: Asylum Seekers Free 220 Taxi with a sub heading, and guess what YOURE paying the fare. Concerns with this article include the publication of a photograph of the family in question in which the faces of the children were clearly visible (in breach of the Editors Code of Practice), the failure adequately to disguise the location of the familys new property (it was identifiable by door numbering and signage), the tone of the article, which included leading questions, WHAT DO YOU THINK? Does it make you angry? in capital letters, and the failure of the article to make clear that train tickets for the family were more costly than the fare for the taxi. Concerns at the accuracy (as well as tone and content) of reporting in some parts of the press in relation to minority groups have also been raised elsewhere.89 In her evidence to the Inquiry, Helen Belcher on behalf of Trans Media Watch described what she regards as the frequently pejorative nature of reporting in some parts of the British press on transgender issues.90 The use of before names as well as photographs of the individuals in question not only causes obvious distress but can place them at risk.91 Ms Belcher also claimed that the tone of much reporting was derogatory and intended to cause ridicule.92 She referred specifically to one article in The Sun which ran under the headline: Sex swap mechanic goes nuts at medics.93 Apart from the inherently offensive nature of such language, Ms Belchers complaint was that it contributed to the shaping of public attitudes towards trans people. Responding to this evidence from Trans Media Watch,94 Dominic Mohan, the editor of The Sun, accepted that some reporting on these issues had been a bit insensitive, but claimed that it had improved.95 The title had worked hard with the Mermaid Trust, an organisation that supports transgender people, to improve the quality of its reporting and, indeed, had received praise from some quarters.96 Shortly after Helen Belcher had given evidence to the Inquiry, The Sun ran two further stories on transgender issues: one concerned coverage of a transsexual man who had given birth; the second to a five year old who had been born male but identified as a girl.97 In a further written submission to the Inquiry, Trans Media Watch suggested that both stories were sensationalised and lacked wider context, and that real privacy concerns around the identification of vulnerable people were ignored.98 Concerns at the damage that can be done by sensationalised reporting were also raised by Professionals Against Child Abuse (PACA), an organisation that represents the professionals who work in child care and social services. In its submission to the Inquiry, PACA set out its
3.20
3.21
3.22
For example, National AIDS Trust; UK Drug Policy Commission; Youth Media Agency p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-Trans-Media-Watch.pdf 91 pp12-14, paras 17 and 21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-TransMedia-Watch.pdf 92 p46, lines 7-19, Helen Belcher, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-8-February-2012.pdf 93 p48, Helen Belcher, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-AfternoonHearing-8-February-2012.pdf 94 Mr Mohans second appearance before the Inquiry was in fact the day before Ms Belcher testified. However, he had been given advance notice of her written submission 95 p128, lines 11-17, Dominic Mohan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-7-February-2012.pdf 96 pp128-129, lines 18-4, Dominic Mohan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcriptof-Afternoon-Hearing-7-February-2012.pdf 97 p1-2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Supplemental-Submission-by-TransmediaWatch1.pdf 98 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Supplemental-Submission-by-TransmediaWatch1.pdf
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belief that sensationalised and sometimes inaccurate reporting of failings in social services were putting at risk the lives of vulnerable young people.99 PACA suggests that sensationalist reporting is damaging the profession through the popular vilification of individuals, and is impacting on retention and recruitment across the childrens care sector.100 The PACA submission refers to work undertaken by the Association of Directors of Childrens Services (ADCS), which notes the rise of child protection vacancies; and, following a survey of users, found that a third of respondents believed the effectiveness of advice being offered by health professionals has been adversely affected.101 A submission received from the Royal College of Psychiatrists also reflects similar concerns about the impact of press reporting on the profession and on recruitment and retention.102 3.23 In its submission the Royal College of Psychiatrists also expressed concern at the impact that the sensationalising of crime can have both on the victims but also on the rehabilitation of the perpetrators and, in particular, young offenders.103 Likewise, the Youth Media Agency has suggested that the sensationalised reporting of youth crime and, specifically, the use of what it describes as an overwhelmingly negative vernacular in reporting of issues relating to young people risks harming their aspirations and opportunities.104 Citing the coverage of the August 2011 riots by some newspapers as an example of the sensationalising of the role of young people in topical events, this organisation noted that just 26% of rioters were identified as aged 10-17, a statistic which was by no means clear from the coverage in some papers.105 The role of the press in shaping public attitudes to rape and violence against women has been criticised in evidence submitted by End Violence Against Women Coalition (EVAWC) and EAVES Housing. The latters submission cites research that it had conducted on the press reporting and statistical realities of rape.106 It argues that in the British press there is a disproportionate coverage of the comparatively rare stranger rape stories and instances of falsely reported rapes, but reporting on the most common form of rape, which is committed by a person known to the victim, is infrequent.107 It suggests that the imbalance discourages victims to speak up and report their experiences, believing they do not fall within the real rape template.108 Similarly, the EVAWC submission suggests that much press reporting on rape serves to perpetuate a number of societal myths around rape that are damaging both to victims and the criminal justice system as a whole. EVAWC notes reporting on a 2009 study which found that promiscuous men were more likely to commit rape.109 However, press coverage of that study, particularly in the Daily Telegraph, suggested that the research claimed that provocatively
3.24
3.25
p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Submission-by-Professionals-Against-ChildAbuse.pdf 100 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-2-to-submission-by-Professionals-againstChild-Abuse.pdf 101 ibid 102 pp1-2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Royal-College-ofPsychiatrists.pdf 103 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Royal-College-ofPsychiatrists.pdf 104 p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Submission-by-Youth-Media-Agency4.pdf 105 p3, ibid 106 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Heather-Harvey.pdf 107 p12, http://www.eaves4women.co.uk/Documents/Recent_Reports/Just%20Representation_press_reporting_the_ reality_of_rape.pdf 108 p12-13, ibid 109 p23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/End-Violence-Against-Women-CoalitionSubmission.pdf
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dressed women were more likely to be sexually assaulted.110 Although the headline was removed from the Telegraph website following complaints from EVAWC and other womens groups, EVAWC are concerned that the damage had been done. 3.26 These complaints of the trivialisation of violence towards women in some sections of the press are echoed in evidence received by the Inquiry from OBJECT. It argues that the frequent juxtaposition in the tabloid press of images and text that depict women as sex objects with stories of violence towards women trivialises that subject matter.111 In support of this proposition, OBJECT has submitted a number of articles published in The Sun, The Daily Star and The Sport in which this juxtaposition is evident. By way of example, OBJECT has drawn the attention of the Inquiry to a front page headline in The Sun which read: Death threats to Harry girl. That article was illustrated with a photograph of the young woman in question in her underwear. The Inquiry has also received a submission from Beat, a campaign group which provides support for those tackling eating disorders. In its submission Beat expresses concern at what it alleges is the use of inappropriate images of severely emaciated women and men in some parts of the press to illustrate stories on anorexia nervosa and other eating disorders.112 Beat contends that such images can cause harm to people either suffering or recovering from eating disorders,113 as well as damage to the public awareness of such disorders by creating a false image of sufferers. That said, Beat also acknowledged recent and substantial improvements in the accuracy and tone of press reporting on these.114 It is worth repeating that both freedom of speech and freedom of the press permit wide latitude to editors and journalists to publish the stories they consider appropriate in the way that they wish.115 The Editors Code of Practice, however, requires care to be taken not to publish inaccurate, misleading or distorted information (Clause 1(i)) and also requires the press to avoid prejudicial or pejorative reference to an individuals race, colour, religion, gender, sexual orientation or to any physical or mental illness or disability (Clause 17(i)). That is the standard that the press has set for itself. The evidence touched on here, and addressed further below,116 includes reporting which falls at different points along a spectrum: some may be contentious, opinionated and partial, while still complying with the standard set; others may be inaccurate, prejudicial and discriminatory, and fall clearly on the wrong side of that standard. What is clear is that a critical mass of articles which breach the standard can have seriously deleterious effects on public discourse and community relations.
3.27
3.28
Medical and scientific research

3.29 The Inquiry has also received a number of submissions from organisations working in medical and scientific research setting out concerns at what they perceive as the detrimental impact of the quality and accuracy of some reporting on issues relating to science and health policy. The Science Media Centre, through its director Fiona Fox, gave oral evidence to the Inquiry, and written submissions have been received from organisations such as the Wellcome Trust, Sense about Science, and the Cardiff University Brain Imaging Centre. Perhaps unsurprisingly,
p23, ibid p2, para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-statement-of-Anna-vanHeeswijk.pdf 112 p1, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Submission-by-BEAT.pdf 113 p1, paras 3-4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Submission-by-BEAT.pdf 114 p1, para 1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Submission-by-BEAT.pdf 115 see also Flood v Times Newspapers [2012] UKSC 11 116 Part F, Chapter 6
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all these organisations cite press reporting on the MMR vaccination following the publication of a case study in The Lancet in 1998 as an example of how journalism that they allege was both inaccurate and unbalanced led to a media generated health scare.117 Both the Wellcome Trust and Sense About Science have explained that in the immediate aftermath of the most intense period of coverage there was an estimated fall in vaccination rates of 61% in some areas of London,118 as well as a much lower take-up of the vaccination overall.119 This reduction is reported to have had a real impact on the risk that incidence of the diseases will increase with potentially serious consequences to those affected. 3.30 Similar, but more controversial, concerns have been raised by organisations in relation to the reporting of issues as diverse as climate change and drug addiction.120 It is unnecessary to do more than touch on these: the relevant submissions are available on the Inquiry website for public scrutiny. It goes without saying that the Inquiry has not undertaken the task of forming its own expert scientific judgment on this material and, in any event, it is unnecessary that it should do so. This body of evidence emphasises the need for balanced and responsible reporting on matters of public interest and, in particular, reporting that reflects the balance of scientific and/or medical opinion on any specific issue. This need arises because the press is regarded as a reliable and responsible source of information; if it was not so regarded (and the press itself would hardly want it so), this issue would not arise. If, for example, the overwhelming preponderance of informed medical opinion is to the effect that a vaccine is safe, any reporting of suggestive evidence to the contrary effect should recognise and fairly characterise the nature and quality of that evidence, and accord proper recognition to where the clear consensus of opinion lies. This is not to accord undue weight to the views of the scientific and medical establishment; rather, it is to accord due recognition to the strength of the available evidence to ensure that the position is not misrepresented. As the MMR story made clear, the failure to do so can have a widespread and harmful impact.
3.31
Inaccuracy and harm: a wider perspective

3.32 Overall, there is a broader point which flows from the status and role of the press in a mature democracy as a reliable, authoritative and accurate purveyor of news and information. The press is trusted by its readers to adhere to high standards in terms of getting things right. The importance of differentiating between fact and opinion is that the public must be in a position to understand what is fact (and therefore to be relied on as such) and what is opinion (and therefore to be understood as precisely that). The public interest in facts being accurate is that readers may well be misled if they are not, their knowledge about the world may well be faulty as a result, and their judgments based on that knowledge may well be imperfect. The wider harm to the public interest of inaccurate journalism should be seen in that light. There is, of course, no bright line for the way that accurate facts are described, or for the choice of accurate facts that are reported and it is recognised that journalists do not have
3.33
p2, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Submission-by-Wellcome-TrustCancer-Research-UK.pdf 118 p2, para 7, ibid 119 p2, para 2.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-Sense-about-Science. pdf 120 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Fiona-Fox.pdf; http://www. levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-Carbon-Brief.pdf; http://www.levesoninquiry.org. uk/wp-content/uploads/2012/02/Submission-by-UK-Drug-Policy-Commission.pdf
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the same standards of impartiality that affect broadcasters. The challenge, in reality, is to the extent to which the Editors Code (or any agreed code) is followed not only in the letter but in the full spirit (see the Preamble to the Code) and the unwillingness of the press to be prepared to address legitimate complaints in that regard.
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Chapter 4 Some praCtiCeS at the NewS of the world

1. Introduction
1.1 As Robert Jay QC said in opening the Inquiry:1 In most institutions, cultural problems of this nature will usually emanate from high up within the organisation, but this will not always be the case. They will not always be the product of a deliberate policy decision made by those with power within the organisation to make them. Sometimes the existence of a culture derives from the operation of more subtle and complex forces, from historical trends, from what is condoned and not stamped upon, leading to insidious evolution and perpetuation, from complacency leading to arrogance and purblindness. There is clearly a range of possibilities. 1.2 There is an extent to which News International (NI) and the rest of the press have sought to draw a line between the practices that are alleged to have taken place at the News of the World (the NoTW) and the newsrooms of all other newspapers. Having argued originally that phone hacking was limited to one rogue reporter, one may be forgiven for thinking that the company and sections of the industry are now arguing that it was limited to one rogue title. On account of the ongoing criminal prosecutions2 it is not possible for Part One of this Inquiry to investigate the allegations of illegal behaviour that surround the NoTW, and neither is it a matter for Part One to reach firm conclusions as to whether similar illegal behaviour has been engaged in elsewhere in given specified titles. The goal of Part One of the Inquiry is to discern the broad contours of the culture, practices and ethics of the press and reach conclusions on the extent to which those meet public expectations and support the public interest. Given the extent of the allegations against the NoTW, and the widespread view that the NoTW was not typical of the rest of national newspapers, I have focused in this Chapter of the Report on the culture at the NoTW. Elsewhere, I consider whether what may be described as the wider culture of the press was and is reflected in or by the culture of the NoTW (or not). The criminal investigations and the many civil actions brought against the NoTW in relation to phone hacking mean there is a vast fund of information about alleged illegal practices in the hands of both NI, the police and in the High Court. However, the ongoing criminal investigations mean that the Inquiry has not been able to delve into any of this evidence and has been constrained in the areas of questioning that might have been pursued with many of those who were employed by the NoTW. Further, NI has drawn attention to the fact that they have not attempted to put forward a positive case in relation to the NoTW and has argued, therefore, that in the context of the Inquiry the NoTW is an undefended party.3 The NoTW is, indeed, in a unique position. The title was closed down in July 2011 by NI in response to the public distaste for what had been revealed about the widespread use
1.3
1.4
1
p19, lines 14-25, Robert Jay QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-14-November-2011.pdf 2 paras 1.38-1.40, Part A, the Introduction 3 This submission has not been published on the Inquiry website, but was shared with the Core Participants to the Inquiry
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of phone hacking as a technique at the paper, and in particular the alleged targeting of ordinary people and the victims of crime such as Milly Dowler. As previously explained, in respect of Operations Weeting, Elveden and Tuleta, NI has provided substantial quantities of information to the police relating to NoTW operations. A number of former NoTW journalists and executives have been arrested and charged, both in relation to phone hacking and other offences. Although the Inquiry has taken evidence from many of those involved it was not possible to ask questions about any issue that is the subject of criminal investigation, with the result that the picture presented is partial. This is a necessary consequence of what I have called the mantra4 but, in any event, I am not seeking to present a detailed account of how things happened in the NoTW newsroom. 1.5 Rather, I am aiming to sketch out an impression of what was considered important at the NoTW, what the priorities were, how people behaved and what the prevailing attitudes were to ethical and legal constraints, the rights of individuals and the Editors Code. The picture set out here is gathered from the evidence of a number of people who have worked at the newspaper over last ten or so years. None has been able to give a full account, and given the frank inconsistencies between some of the accounts that I have received (taken together with other reasons such as my assessment of them as witnesses) I am driven to conclude that not everything I have heard has been accurate or, in some cases, truthful. That said, I believe that the resulting picture is sufficiently robust to stand as a recognisable portrait of how the organisation operated over that period, without seeking to concentrate on, or draw conclusions about, the alleged illegal behaviour that is the subject of current or potential police investigations.
F 2. Influence on culture at the News of the World

2.1 This chapter will consider a number of different aspects of culture, practices and ethics at the NoTW, namely: (a) the impact of those in the most senior positions on the rest of the organisation: the chain of events surrounding the prosecution of Glenn Mulcaire and Clive Goodman and the civil litigation, in particular Mr Gordon Taylors claim, provide an important and powerful insight into accountability and responsibility within the upper echelons of the NoTW. These issues have already been covered in considerable detail above,5 and I reiterate here those findings and assessments; the culture in the newsroom: how responsibility is handled at working level and the behaviour of the senior team towards their staff; the pressures on journalists and editors: including how they inform actions and can influence the culture of the organisation; the attitude within the newsroom towards individuals who were the subjects of potential stories: including what attitudes to privacy, as well as methods of persuading people to co-operate, can tell us about culture; approaches to compliance, including the approach to data protection, with specific reference to Operation Motorman, the approach to legal compliance, dealing with complaints and attitudes to accuracy; and
(b) (c) (d)
(e)
4 5
para. 1.38-1.39, in Part A for an explanation of the term Part E Chapter 4
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Chapter 4 | Some Practices at the News of the World
(f)
finally, the relationship between the paper and the public, with reference to how the paper considers the wider public interest and its approach to public scrutiny.
Setting the tone from the top

2.2 In relation to the NoTW, the relevant influences on the culture and operation of the newspaper appear to be the ultimate owner of the title, the NI management, the editorial and executive team at the NoTW, the exigencies of operating as a Sunday title and the pervading culture and practices of the UK press and UK journalism. What follows attempts to describe the effect of some of these different influences. If the culture is set from the top of an organisation then, in seeking to understand the culture at the NoTW, it is essential to look at the approach taken by the ultimate owner. Rupert Murdoch, speaking no doubt in his capacity as Chairman of News Corp, told the Inquiry:6 I do try very hard to set an example of ethical behaviour and make it quite clear that I expect it. One can describe that in a number of ways. But do I do it via an aura or charisma? I dont think so. Talking generally about the role of his newspapers he said: It was always to tell the truth, certainly to interest the public, to get their attention, but always to tell the truth. He said that he felt that the public were the best arbiters of what should be in newspapers.7 2.4 In describing the specific brand of the NoTW, Mr Murdoch said:8 Its a campaigning newspaper.certainly it was interested in celebrities, just as the public is, and a much greater investment went into covering the weekend soccer.. Coverage of celebrities, yes. Salacious gossip? Meaning I take gossip as meaning unfounded stories about celebrities: no. I certainly hope not. 2.5 Mr James Murdoch described the brand of the NoTW as:9 an investigative newspaper with exposs and the like, wasnt only concerned with celebrities and salacious gossip, but also uncovering real wrongdoing, scandals, campaigning and so on and so forth. James Murdoch told the Inquiry that the culture at the NoTW when he joined as Chief Executive was very different from that at BSkyB. He said that he wanted it to be more collaborative.10
2.3
p28, lines 22-25, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-25-April-2012.pdf 7 p32, lines 12-22, Rupert Murdoch, ibid 8 p44, lines 21-21, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-26-April-2012.pdf 9 p10, lines 12-16, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-24-April-2012.pdf 10 p6, lines 5-8, James Murdoch, ibid
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Code enforcement 2.6 When Colin Myler arrived at the NoTW he reviewed the protocols and systems in place and introduced changes where he thought they were necessary to improve the governance within the NoTW.11 This included an amendment to the standard employment contract to make it:12 ...abundantly clear that the employee understands and accepts that failure to comply with the requirement, which was PCC, criminal law, will lead to disciplinary proceedings, which may result in summary dismissal. However, Mr Myler went on to say that during his time as editor there were no instances where failure to comply with the Code led to disciplinary proceedings.13 He was able to recall one case that led to an oral warning and one that led to a written warning, but no others.14 This is particularly surprising in the light of the adverse adjudications, mediated complaints and defamation actions settled during the period (as to which see paragraph 2.33 below) most, if not all, of which must, almost by definition, have breached the Code in some way.
The culture in the newsroom

2.7 In looking at the culture of an organisation, it is important to consider the relationships between the organisation and its staff, how responsibility was handled at working level and, more particularly, what the NoTW was like to work for. The Inquiry heard a number of different perspectives on what really mattered at the NoTW. Paul McMullan, former deputy features editor, described the raison dtre of the NoTW as chasing circulation and nothing else.15 He spoke repeatedly and passionately about the fact that NoTW had the highest circulation of the national papers and that the readers appeared to welcome the sort of stories that he wrote: 16 But the reality was it was bought in its millions. This is what the people of Britain want. I was simply serving their need, their what they wanted to read. In one of the most provocative statements made to the Inquiry, Mr McMullan said that: 17 in a bizarre way, I felt slightly proud that Id written something that created a riot and got a paediatrician beaten up, or whatever was the case, as if he was delighted to feel (or glorified in the fact) that he had written an article that had moved people to action, even if the action itself had been utterly misguided and wrong. 2.9 Mazher Mahmood, an investigative journalist who has specialised in undercover exposures and stings, advanced a different view. He explained that he was motivated by public duty and exposing wrongdoing, so much so that not all his investigations had been with a view to
2.8
p13, lines 17-20, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-14-November-2011.pdf 12 p16, lines 21-25, Colin Myler, ibid 13 p18 lines 13-18, Colin Myler, ibid 14 p21, lines 5-13, Colin Myler, ibid 15 p43, line 1, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-29-November-2011.pdf 16 p43, lines 10-12, Paul McMullan, ibid 17 p41, lines 6-8, Paul McMullan, ibid
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eventual publication in the newspaper.18 In discussion of a Court of Appeal finding that his real priorities were as a journalist wanting to publish a story, Mr Mahmood said:19 Of course, our motive is to publish an article in the newspaper. Im not a police officer, Im not a social worker; Im a journalist. 2.10 An alternative view to that expressed by Mr Mahmood of what was driving people in the NoTW newsroom was provided by Stuart Hoare, on the basis of the discussions he had had with his late brother, Sean, a journalist at the newspaper, suggesting that the main aim was to deliver a story and deliver it as quickly as possible: 20 it seems, you know, as though no one was in control. As long as they delivered an article, whether it could stand up or not didnt really matter, but as long as they delivered something, and if they delivered something early on in the week, then all the better because they can go and do whatever they want to do for the rest of the week. It was a very strange world that they operated in. 2.11 It is difficult to assess the reliability of the evidence bearing on these differing perspectives, for at least two reasons. First, it has to be recognised that Mr McMullans evidence needs to be treated with very real caution given his tendency to exaggerate and sensationalise. He was not an attractive witness, although ultimately I conclude that his evidence did contain a substantial kernel of truth, once the elaboration is removed. Secondly, and notwithstanding my reservations about certain aspects of Mr Mahmoods evidence which I address elsewhere, I am prepared to accept that he personally felt that he was discharging some sort a public function rather than merely generating commercial gain for himself and his employer. That said, the evidence of Messrs Hoare and McMullan does not stand alone and I have reached the conclusion that in broad and general terms, exaggeration aside, it does serve to identify at least one of the key drivers of culture at the NoTW.
Pressures on journalists
2.12 It seems clear, therefore, that a drive for circulation increased the pressure on those working at the NoTW. The Inquiry heard from a number of former employees of the newspaper who were in complete agreement that the newsroom at NoTW was a very pressurised environment and that reporters were under pressure to deliver stories, preferably exclusive stories, regularly. Mr McMullan said that the consequence of not getting sufficient bylines was that you would get fired.21 Neville Thurlbeck (who had occupied a number of senior positions as a journalist on the NoTW) told the Inquiry:22 there was a kind of an unofficial recognition that bylines were a reasonable performance indicator, and if your byline count was low, then obviously your job would be in jeopardy.
pp33-34, lines 24-2, Mazher Mahmood, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Morning-Hearing-12-December-2011.pdf 19 pp36-37, lines 19-6, Mazher Mahmood, ibid 20 p13, lines 12-19, Stuart Hoare, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-19-December-2011.pdf 21 p32, lines 9-25, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-29-November-2011.pdf 22 p17, lines 7-10, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-12-December-20111.pdf
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2.13
Other journalists said the same thing. Daniel Sanderson, a former journalist at the paper, said that the environment of the newsroom was highly pressured and that you had to be available all the time.23 Matt Driscoll, another former journalist who left the newspaper suffering from stress, said that there were lots of pressures on a news staffer at the NoTW to perform and get stories. He mentioned the pressures to get a story, to sell the paper, and to get a big front page exclusive.24 Mr Driscoll also recounted his doctors assessment of the pressure applied to journalists which was in terms that:25 journalists work under an incredible amount of pressure and stress, and it was his opinion that you get used to that level of stress. You just think thats normal. You know, the high sort of fast lane of Fleet Street does take its toll. You travel around the world, you work at a great pace, so if something doesnt go quite right, you can quite easily get tipped over the edge. Youre used to a high level of stress, but youre almost at saturation point.
2.14
F
2.15
This picture of a newsroom under immense pressure was supported by anonymous evidence received from the National Union of Journalists (NUJ). As discussed below, such was the concern about the risk of repercussions for journalists giving evidence to the Inquiry that an application was made by the NUJ that I should be prepared to receive evidence anonymously. I acceded but, inevitably, treat the resulting evidence far more cautiously as a consequence. One journalist wrote that there was tremendous pressure at the NoTW, that everyone talked about the byline count and reporters had to do what they needed to get the story.26 Another said The NoTW was an incredibly tough and unforgiving workplace and described seeing three or four members of staff collapse in the office in consequence, at least in part, from stress, as well as himself or herself having suffered from severe stress.27 Sharon Marshall described the NoTW as a very tough working environment where you literally would not know what the person next to you was doing.28 Whilst the picture of the NoTW as a tough and demanding, often stressful, working environment was not challenged by any of the evidence before the Inquiry, there was no such agreement on whether this toughness extended to bullying. Some have argued very clearly that that there was a bullying culture at the NoTW. Mr Driscoll told the Inquiry of his dismissal from the NoTW and the subsequent Employment Tribunal hearing. The Tribunal found that then editor of the NoTW, Andy Coulson, had presided over a culture of bullying 29 as well as specifying particular instances of behaviour by the editor that it considered to constitute bullying.30 The Tribunal further found that the disciplinary proceedings leading up to Mr Driscolls dismissal had been a pretext for the then editors desire to get shot of Mr Driscoll.31 The Tribunal felt
pp89-90, lines 24-12, Daniel Sanderson, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Morning-Hearing-15-December-20111.pdf 24 pp27-28, lines 23-5, Matt Driscoll, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-19-December-2011.pdf 25 p39, lines 6-17, Matt Driscoll, ibid 26 p1, para 1.1, Michelle Stanistreet, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/MS-Exhibit-11. pdf 27 p5, para 2.1, Michelle Stanistreet, ibid 28 p43, lines 21-24, Sharon Marshall, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-20-December-2011.pdf 29 p3, Matt Driscoll, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Afternoon-Hearing19-December-2011.pdf 30 p52, lines 2-8, Matt Driscoll, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-19-December-2011.pdf 31 pp52-53, lines 20-3, Matt Driscoll, ibid
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that in conducting the disciplinary process the senior management team were going through a cynical process of giving an appearance of fairness towards Mr Driscoll.32 2.16 The Tribunals findings were not the subject of any appeal by NI to the Employment Appeal Tribunal, notwithstanding the very substantial award of compensation to Mr Driscoll. However, it cannot be overlooked that Mr Coulson did not give evidence before the Employment Tribunal, despite the fact that he has subsequently said that he wished to do so, and that he has sought to challenge the findings of fact made by the Tribunal. Whatever his account now, I am not prepared to permit Mr Coulson or NI to re-litigate issues which, if they were live, could and (in my view) should have been argued before the Employment Tribunal at the appropriate time. Ian Edmondson was the news editor at the NoTW for much of the relevant period. He agreed that there was a culture of bullying, saying that it emanated from the editor. He said this was true even for senior executives such as himself: Its not a democracy at a newspaper. Autocratic.33 A number of the journalists providing evidence anonymously through the NUJ echoed this perception, including one who described repeated bullying of themselves and colleagues,34 and another who described what amounted to bullying of Clive Goodman.35 A third described a systematic regime of bullying at the NoTW.36 These journalists describe their experience of being bullied and seeing others bullied in graphic detail. Steve Turner, of the British Association of Journalists gave evidence of at least three cases, other than Mr Driscoll, of bullying at the NoTW in each of which:37 ...the journalist was unreasonably subjected to disciplinary proceedings, realised that the newspaper felt his face did not fit any more and that they were trying to drive him out, and asked him if a severance package was available to resolve the matter. 2.18 Others disagreed. Mr Sanderson was clear that he did not recognise the picture painted by other witnesses of a bullying culture at the title.38 Another, Dan Wootton (who worked in Features before becoming TV editor and then Showbiz editor) was confident that he had experienced no bullying culture at the NoTW, although he ascribed this to his having worked on the Features desk and to different parts of the paper having different cultures.39 Rupert Murdoch said that he was not aware of any allegations of bullying at NoTW or within NI, stating they always strike me as a very happy crowd,40 but made it clear that the type of conduct found to have occurred in the Driscoll case had no place in NI newsrooms.41
2.17
32 33
p54, lines 3-7,Matt Driscoll, ibid pp76-77, lines 25- 6, Ian Edmondson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-9-February-2012.pdf 34 p3, para 1.14, Michelle Stanistreet, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/MS-Exhibit-11. pdf 35 p5, para 2.2, Michelle Stanistreet, ibid 36 p9, para 4.19, Michelle Stanistreet, ibid 37 p14, lines 20-25, Steve Turner, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-20-December-2011.pdf 38 p90, lines 16-17, Daniel Sanderson, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-15-December-20111.pdf 39 p26, lines 23-25, Dan Wootton, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-6-February-2012.pdf 40 p97, lines 5-9, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-26-April-2012.pdf 41 p1, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Second-ws-of-Keith-Rupert-Murdochsigned-22.05.12.pdf
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2.19
NI cautions the Inquiry about reaching any conclusion about a culture of bullying based on the allegations of a single individual or even a handful of individuals.42 However, Mr Myler explained that when he became editor, he ran a staff survey asking about the working environment. The responses were clear that they had a long way to go to meet the aspirations of the staff. Mr Myler went on to say that his response included holding seminars for the heads of departments on how to welcome challenge and to avoid bullying. Mr Myler indicated that the subsequent years survey results were much improved, putting the NoTW ahead of the rest of NI.43 This lends some weight to the concerns of others that a bullying culture did, at least to an extent and prior to 2009, exist in the NoTW, as well as indicating that some steps were taken to address it. It must be recognised that not all the evidence offered can be taken at face value and, in particular, as I have said, I must be very careful about placing too much reliance on the evidence of anonymous journalists unless it is converges with other reliable evidence. However, in the light of the body of consistent evidence which the Inquiry has received, and of Mr Mylers evidence (which is not challenged by anybody) there can be little doubt that the NoTW was a tough working environment, that the staff collectively felt that challenge from superiors was not welcomed, and that bullying was a problem. The evidence which Mr Driscoll gave to the Employment Tribunal, repeated to me, along with the confirmation of witnesses (both identified and anonymous) satisfies me that, at least on occasion, individuals were, indeed, victimised and bullied. Whilst Mr Myler took steps to address the culture that he obviously perceived as being harmful, there was no evidence that any individuals responsible for bullying, or creating a climate at the paper which was unhealthy and oppressive, were disciplined in any way or that the victims were offered any support. In any event, whether the pressures to perform amounted to bullying or not, it has been suggested by a number of witnesses that these pressures, both to deliver a story and to deliver sufficient evidence to make it legally defensible, may have led journalists to use whatever means were necessary, even if that meant stepping beyond the Editors Code or the law. Mr McMullan described the attitude of a previous editor, Piers Morgan, as I want that story at all costs and I dont care what you have to do to get that story.44 He recounted a specific incident alleging that Mr Morgan, against the advice of Rebekah Brooks, had actively encouraged him to steal a photograph from a private house: 45 quite apart from the unsatisfactory nature of parts of Mr McMullans evidence, that allegation was not put to Mr Morgan and I make no finding about it. On the other hand, James Hanning (deputy editor of the Independent on Sunday) reported Sean Hoare suggesting that his impression was that getting stories that could be printed was more important than professional standards.46 Mr Driscoll told the Inquiry that there was pressure to go along with using unethical or illegal methods to stand up a story:47
2.20
F
2.21
2.22
This submission has not been published on the Inquiry website, but was shared with the Core Participants to the Inquiry 43 pp17-18, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-AfternoonHearing-14-November-2011.pdf 44 p35, lines 25-4, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-29-November-2011.pdf 45 p70, lines 15-21, Paul McMullan, ibid 46 p39, lines 6-16, James Hanning, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-19-December-2011.pdf 47 p19, lines 14-21, Matt Driscoll, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-19-December-2011.pdf
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it would be a very brave journalistto suddenly say Im not happy with these techniques that are being used...Anyone on that floor who complained too much would find themselves pushed out, certainly. Mr Driscoll went on to say:48 there was a pressure to use, as it now turns out, almost any means necessary to make sure that a story was 100 per cent true. 2.23 Mr Edmondson described an environment where anyone in the newsroom had to comply with an instruction from the editor, even when the editors instruction might be morally or ethically questionable. He said that an instruction from Mr Myler (denied by Mr Myler) that he misled Clarence Mitchell, the PR assistant to the McCann family, about the NoTWs position in relation to Dr Kate McCanns diaries was a particularly egregious example of an instruction effectively to deceive someone, but that there had been other occasions.49 Mr Hoare described how he believed that his brother, Sean, had felt pressure to drink and take drugs in order to be able to do his job effectively, as he relied on mixing socially within the entertainment world.50 Mr Hanning also described how Mr Hoare had felt that there was great pressure to perform and that he was put under increasing pressure when things were going less well.51 Again, this general picture is reflected in the anonymous evidence given through the NUJ. One such witness said if youve got people who are hacking phones and producing great stories, the honest reporter is thinking theyre not in the same league, that somethings wrong with them.52 Another complained of pressure to deliver too quickly:53 Thered be no time to make calls and get things right..There was [one time] when I had to make up a quote it was only once.I felt terrible. But I didnt have a choice and I had to get the piece done. A third said:54 I never made stuff up but the pressure on people was enormous. 2.26 Other witnesses were clear that they had not felt under pressure to behave improperly in pursuit of stories or evidence. Mr Thurlbeck spoke of the enormous lengths to which they went to satisfy the lawyers as to factual accuracy, asserting that only proper means
2.24
2.25
pp19-20, lines 25-15, Matt Driscoll, ibid p70, lines 11-16, Ian Edmondson, ; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-9-February-2012.pdf; the diary incident will be examined further in Part F Chapter 5 section below 50 p23, lines 2-17, Stuart Hoare, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-19-December-2011.pdf 51 pp40-42, lines 21-3, James Hanning, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-19-December-2011.pdf 52 p1, para 1.2, Michelle Stanistreet, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/MS-Exhibit-11. pdf 53 p4, para 1.17, Michelle Stanistreet, ibid 54 p11, para 4.27, Michelle Stanistreet, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/MSExhibit-11.pdf
49
48
501
were used to achieve that aim.55 Mr Sanderson said that he had no experience of working in uncomfortable situations, or of being forced to behave against the Editors Code.56
Approach to discipline
2.27 It is interesting to consider the NoTWs approach to staff who committed breaches of the Editors Code or been found to have broken the law. Mr Myler explained that it was the practice that a journalist who failed to meet PCC Code standards would receive a written reprimand, though he could only recall one example of this happening from his four year tenure as editor.57 According to Mr Myler, this was sometimes also the case in relation to lapses that did not lead to a PCC complaint.58 When Mr Thurlbeck was found by the High Court to have sent emails to potential interviewees which could be said to be tantamount to blackmail,59 no action was taken against him by the NoTW in connection with the incident; neither does it appear that there was even a reevaluation of the propriety of what had been done.60 I shall return to the issue of these emails at a later stage of this review of the culture at the NoTW. The treatment of Clive Goodman, as set out above,61 was also instructive. Mr Goodman had been found guilty of a criminal offence and served a prison sentence for it. This is clearly grounds for dismissal under the News International Disciplinary Policy. Indeed, [c]onviction for a criminal offence which may bring News International into disrepute is given as an example of gross misconduct which could lead to dismissal without notice or payment in lieu of notice.62 However, as Mr Crone explained, Mr Goodman was given indications that he would be able to return to the NoTW.63 In the event that, did not happen and Mr Goodman was dismissed, but he did secure in the region of 250,000 in payments and legal expenses in circumstances where one would have thought that his strict legal entitlement, regardless of any technical want of fairness by the company in its dismissal procedures, were nugatory or non-existent.64 There are different possible interpretations of the rationale for why there was any possibility or suggestion that Mr Goodman might have been taken back to work at the NoTW. One, put forward by Mr Goodman himself in his unfair dismissal claim, was that management recognised that Mr Goodman was operating within normal and accepted practice at the NoTW and it would be unfair for him to be dismissed as a result. Consequently it was appropriate, at least, for him to be compensated if he was not going to be able to keep his job. Another possible interpretation suggested was that executives at the newspaper felt a sense of
2.28
2.29
2.30
55
p66, lines 10-19, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-12-December-20111.pdf 56 p93, lines 19-24, Daniel Sanderson, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-15-December-20111.pdf 57 p21, lines 5-13, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-14-November-2011.pdf 58 p2, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Colin-Myler1.pdf 59 para 87, http://www.bailii.org/ew/cases/EWHC/QB/2008/1777.html 60 p6, lines 15-21, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-12-December-20111.pdf 61 Part E Chapter 4 62 pp1-2, NI Disciplinary Policy and Procedure MOD100014850-1 (in pending read in list) 63 p92, lines 9-18, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-13-December-20111.pdf 64 p103, lines 3-8, Tom Chapman, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-14-November-2011.pdf
502
paternal responsibility for Mr Goodman and his family and that they did not want them to be too heavily penalised for one mistake when set against a long and (largely) honourable career. A further interpretation is that, given his knowledge of inappropriate activity at the NoTW, by keeping him on the staff, Mr Goodman could be persuaded to keep such matters confidential. Mr Crone has denied that there was any keep your mouth shut element to the indications given to Mr Goodman that he might have a job at the NoTW after his release from prison.65 2.31 Any one of these arguments might also explain the willingness of the NoTW to reach a substantial settlement with Mr Goodman once he had been dismissed. Jon Chapman, former head of legal and corporate affairs at NI, told the Inquiry that the NoTW settled with Mr Goodman because they did not want to face the reputational damage of allegations being repeated in an Employment Tribunal.66 Mr Chapmans contention was that the allegations were unsubstantiated but nonetheless damaging. There would be an equal rationale for persuading Mr Goodman not to repeat his allegations if they were, in fact, substantiated. What is particularly striking are the differences between the treatment of Mr Thurlbeck and Mr Goodman, on the one hand, and Mr Driscoll on the other. Whilst Mr Goodman was dismissed, it took some considerable while for that conclusion to be reached. No formal action was taken against Mr Thurlbeck whatsoever, and any informal reprimand was offered only long after the event. Both of these cases involved unlawful (or potentially tantamount to unlawful) behaviour and breaches of the Code. By contrast Mr Driscoll had broken neither the Code nor the internal rules of the NoTW and was dismissed as rapidly and with as little personal consideration or compensation as possible.67 Looked at more broadly, the Inquiry has seen no evidence that the policy set out by Mr Myler, that breaches of the Editors Code would result in a written reprimand, was implemented or enforced. NI has not provided any examples of such written reprimands, despite at least 17 upheld PCC complaints against the NoTW, including five since 2007,68 and 19 defamation actions since 2005 including 12 settled.69 Mr Myler cited four cases in which the PCC adjudicated against the NoTW while he was editor.70 The Inquiry has been given no evidence of disciplinary action having been taken in response to those breaches of the PCC Code despite Mr Mylers assertion that it would have done so. Some five people were dismissed from NoTW in the period from 2005-2011 for misconduct, three of them in 2011, and no information is provided about what constituted misconduct in these cases. The example of Mr Driscoll demonstrates that this will not always relate to a breach of the Code. Some NoTW journalists were clear that the Code was distributed to staff and they were made aware of their obligation to follow it. Dan Wootton confirmed that he attended a PCC seminar
2.32
2.33
2.34
65
p92, lines 23-25, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-13-December-20111.pdf 66 p105, Tom Chapman, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-MorningHearing-14-November-2011.pdf 67 p103, lines 3-8, Matt Driscoll, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-19-December-2011.pdf 68 MST database of PCC statistics http://complaints.pccwatch.co.uk/search 69 data supplied by Linklaters 31 January 2012 70 p2, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Colin-Myler1.pdf
503
on the day that he joined the NoTW and was provided with a copy of the PCC Code that day, which he would carry with him at all times.71 Ms Marshall echoed this, saying:72 when you start at the News of the World, youre given a copy of the PCC code. Every journalist should know what the PCC code is. You wouldnt be reminded of it on a daily basis. You should know it. 2.35 Ms Marshall told the Inquiry that she had resigned from the NoTW because she had been asked by her manager to do something which she considered unethical: she was told to put a story to a subject in a way and at a time that she considered inappropriate. In the event she did not comply with the request and no story ran. Ms Marshall said that the editor and deputy editor had not been aware of this request until she resigned and that they had tried to persuade her to stay.73 However, she left, and the person responsible for the request had stayed in their job.74 Ms Marshall also told the Inquiry that she was not aware of anyone having been disciplined for an ethical breach.75 As previously observed, not all the evidence adduced as to the pressure on staff to use all means possible, whether or not they were ethical or legal, to get a story and stand it up can be taken at face value. I repeat that only limited weight or reliance can be placed on uncorroborated anonymous evidence, and the evidence of Mr McMullan, Mr Driscoll, Mr Edmondson and Mr Hanning is challenged by NI on various grounds of unreliability. On the other hand, whereas aspects of NIs challenges are, no doubt, well-founded, for reasons earlier explained, I have concluded that the evidence of these and other similar witnesses contains a substantial kernel of truth. It goes further. Mr Thurlbecks continued denials of the use of improper means at the NoTW ring hollow in the face of the conclusions of Mr Justice Eady that he had resorted to a tactic that could be considered tantamount to blackmail; the fact that, even now, he does not accept any lack of propriety on his part speaks volumes. The evidence of how the NoTW treated staff who had gone too far clearly suggests that while there may not have been overt pressure to breach the Code or break the law, there was an attitude that expected results and that did not actively discourage, or penalise those who went beyond the boundaries of what was proper.
2.36
2.37
3. Attitude towards individuals

3.1 The attitude within the newsroom towards individuals who were the subject of potential stories, including specifically attitudes to privacy, shines a bright light onto the culture of a newsroom. This sub-section of the Report covers ground which is also addressed on a more generic basis below,76 but it is convenient and appropriate to address here similar issues in the specific context of the NoTW. The Inquiry has seen two distinct attitudes towards the subjects of stories or potential stories. The first is that celebrities or subjects must be humoured and nurtured in order for stories
3.2
71
p25, lines 4-9, Dan Wootton, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-6-February-2012.pdf 72 p48, lines 1-5, Sharon Marshall, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-20-December-2011.pdf 73 pp52-54, lines 2-25, Sharon Marshall, ibid 74 p55, lines 15-16, Sharon Marshall, ibid 75 p48, lines 6-17, Sharon Marshall, ibid 76 Part F, Chapter 6
504
to continue to flow; and the second, as for example in the case of Max Mosley, considers individuals as commodities, and their interests solely from the perspective of legal risk to the company. There are three aspects of the treatment of individuals by the NoTW that I examine here: (a) (b) (c) the approach to privacy, including the attitudes to Article 8 rights, use of intrusion and surveillance; pressure put on people to co-operate; and deception, including blagging, and other investigative techniques.
Privacy 3.3 The Inquiry heard that, whereas libel had always been an issue for newspapers, concerns about privacy were more recent. Mr Crone said that privacy considerations had become more important as case law on privacy developed, dating that from approximately 2002/3.77 He gave evidence that privacy incrementally became more important as a result. Mr Myler described how, coming back to the UK in 2007 after five years in the United States, the privacy landscape was unrecognisable:78 As a result of challenges and the change in the law, as it were, and verdicts, it was becoming very challenging to meet the requirements that the courts had laid down. This, he said, led him to approach privacy issues with a cautious frame of mind.79 Mr Thurlbeck said that privacy had become an important issue since 2008.80 Before then, he said, there was less regard to privacy issues although there was always an awareness that there had to be an element of justification behind it.81 It is notable that, in the case of both Mr Crone and Mr Myler, this increased caution with respect to privacy was driven by the development of law surrounding privacy, not by the requirements of the Editors Code or any general ethical considerations or changes in what the reading public were willing to support. 3.4 The Inquiry heard evidence from a number of NoTW staff in relation to both the general approach to privacy and to specific incidents involving a breach of privacy. Mr McMullan was at the extreme end of the lack of respect for privacy, informing the Inquiry:82 In 21 years of invading peoples privacy Ive never actually come across anyone whos been doing any good. The only people I think need privacy are people who do bad things. Privacy is the space bad people need to do bad things in. Privacy is particularly good for paedophiles, and if you keep that in mind, privacy is for paedos, fundamental, no one else needs it, privacy is evil. It brings out the worst qualities in people. It brings out hypocrisy. It allows them to do bad things.
pp63-64, lines 23-12, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-13-December-20111.pdf: he had in mind in particular Campbell v MGN Ltd, decided by the House of Lords on 6 May 2004. 78 p34, lines 3-4, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-14-December-2011.pdf 79 pp34-35, lines 1-9, Colin Myler, ibid 80 pp67-68, lines 23-3, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Morning-Hearing-12-December-2011.pdf 81 p69, lines 10-18, Neville Thurlbeck, ibid 82 pp90-91, lines 23-9, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-29-November-2011.pdf
77
505
3.5
Mr McMullan argued that he saw no distinction between the public interest and what the public was interested in.83 This line of argument led him to suggest that the level of sales of the NoTW demonstrated that its stories were essentially in the public interest.84 He specifically recounted a story, in which he had been involved, that led to the subject ultimately killing herself. He recalled this story with regret, but continued to believe that there was no need for controls on privacy because the public did not seem to have a problem with the coverage:85 because the News of the World readership didnt decline after that. It didnt put anyone off buying it.
3.6
Mr Mahmood argued that someone holding public office should have no right to privacy. By contrast, he suggested that in the case of those not holding office, any intrusion into privacy would need to be justified, for example on the grounds of exposing hypocrisy.86 Mr Thurlbeck described a newsroom in which the question of whether privacy was being intruded into, and the justification for any such intrusion, was the subject of lengthy debates with the editor:87 It was something we talked about literally every day..we did everything we could to ensure that we didnt step over those boundary marks.
3.7
3.8
F
3.9
Mr Sanderson said that in every story he would consider privacy, the public interest and whether he was adhering to the Editors Code. However, he was unable to point to any consideration of breach of privacy in relation to the acquisition of the diaries of Dr McCann, appearing to feel that the matter would be satisfactorily covered by obtaining the consent of the McCanns to any proposed publication.88 Describing the attitude of executives to privacy, Mr Crone said that he was sometimes asked to advice on what attitude a court might take in relation to the privacy aspects of a case:89 I would express the view that they were probably going to get into trouble over it. That wasnt always accepted in terms of we wont publish it, no. He explained that the executives view of the public interest in publishing was not always in line with his (Mr Crones) assessment of what a court would find.90
3.10
Mr Wallis said that the NoTW had a policy until the early 2000s to make a 4 oclock Saturday afternoon telephone call to the subject of an expos, but that that was now impossible.91 He explained:92
83 84
p39, lines 16-18, Paul McMullan, ibid p40, lines 9-15, Paul McMullan, ibid 85 p94, lines 14-20, Paul McMullan, ibid 86 pp55-56, lines 13-18, Mazer Mahmood, ibid 87 p67, lines 8-21, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-12-December-2011.pdf 88 p78, lines 2-20, Daniel Sanderson, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-15-December-20111.pdf 89 p66, lines 3-15, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-13-December-20111.pdf 90 ibid 91 p76, lines 15-23, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-12-December-20111.pdf 92 p77, lines 4-17, Neil Wallis, ibid
506
As the success of late-night Saturday injunctions increased, for reasons that were subject to debate and some discussion in the media and in the legal profession, it became clear that whatever the rights and wrongs of a case, it was becoming much more easy easier for a judge to grant an injunction. If you if that injunction was granted, that means (a) that you all that hard work had to go on hold, and (b) it stopped becoming yours, because it then became out to the rest of the world. Because if you fought the injunction, it would be heard on a nice comfortable Thursday or Friday morning in the High Court and you, as a Sunday newspaper, have your story all over the daily newspapers. 3.11 There are very real tensions between what the Inquiry has been told, for the most part, about the general approach to privacy, which suggested a careful consideration of the issues raised, and the actual decisions taken, and rationale for those decisions, in specific cases. A prime example of this is the publication of the story about Mr Mosley. It is not necessary to set out in detail the facts of the Mosley case, which can be found in the judgment of Mr Justice Eady in Max Mosley v News Group Newspapers.93 In short, the NoTW published a series of stories alleging that Mr Mosley, the then head of the Federation Internationale de lAutomobile (FIA), had taken part in a Nazi themed orgy. The newspaper also published online a video of Mr Mosley engaged in sado-masochistic sex, alleging this be evidence of the Nazi orgy. In fact, the allegation of a Nazi theme was held by the court to have no basis in fact, but was no doubt an attractive headline for the newspaper and its readership on account of the fact that Mr Mosley is the son of former British Union of Fascists leader Oswald Mosley. The revelations in the NoTW were incredibly damaging to Mr Mosley and his family and amounted to a gross breach of his private life. In this case, Mr Thurlbeck could not remember with any precision when the public interest in breaching Mr Mosleys privacy was considered. He was clear that he had no such conversation with the editor, Mr Myler, but did think he had discussed the issue with the news editor both when he started to research the story and throughout. Despite his earlier characterisation of regular and lengthy debates with the editor on privacy issues (see paragraph 3.7 above), when asked whether he thought it appropriate to discuss the public interest in invading Mr Mosleys privacy with the editor, Mr Thurlbeck said:94 In the normal course of events I would talk to the news editor. 3.13 Mr Thurlbeck was clear that decisions on prior notification of the subjects of stories was a matter for the news desk. He said:95 I would always wait for an instruction from the news desk before revealing our handand on this occasion I wasnt told, therefore I assumed we werent putting the allegations to him.. 3.14 The editor, Mr Myler, and legal advisor, Mr Crone, did remember considering privacy issues in relation to Mr Mosley. Mr Crones view at the time was that if Mr Mosley was told in advance about the story there was a good chance that a pre-publication injunction would be granted. For this reason, and to guard against leaks, he advised against notifying Mr Mosley.96 Mr
3.12
[2008] EWHC 1777 (QB), http://www.bailii.org/ew/cases/EWHC/QB/2008/1777.html pp82-84, lines 1-25, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Morning-Hearing-12-December-2011.pdf 95 p85, lines 17-25, Neville Thurlbeck, ibid 96 p70, lines 1-5, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-AfternoonHearing-13-December-20111.pdf
94
93
507
Myler agreed that he believed that had Mr Mosley applied for an injunction he was likely to have been successful.97 3.15 Mr Crone said that he was not asked to advise on whether the video should be put on the website. He said, I thought it was pushing it to put up the video, but at no time did he advise that it should not be put up, or that it should be taken down.98 It seems clear that there was no systematic consideration of the propriety of invading Mr Mosleys privacy (or that of the other parties to the event), other than in the context of how to ensure that Mr Mosley was not put in a position to exercise his right to privacy by seeking an injunction to prevent publication. Mr Thurlbeck noted that one of the risks of an injunction application was that during the period of any interim injunction the story might leak out and the paper would lose its commercial advantage from the story.99 In the event, when Mr Mosley brought a claim for breach of privacy, Mr Justice Eady found that there was no public interest justification for the breach of Mr Mosleys privacy. He also found that the decisions to publish the story and the online video were indicative of casual and cavalier editorial judgments. In awarding Mr Mosley 60,000 damages, he noted that no amount of damages can fully compensate the Claimant for the damage done. He is hardly exaggerating when he says that his life was ruined. 100 A similar example of a casual and cavalier approach to privacy is offered by the handling of the diaries of Dr Kate McCann by the NoTW, discussed in detail below.101 In short, the NoTW had come into possession of the personal diaries of Dr McCann, via a Portuguese journalist who had, himself, acquired them from the Portuguese police. It chose to publish highly personal excerpts from the diaries without the consent of Dr McCann. Paragraph 3.8 above explains that Mr Sanderson, the NoTW journalist who acquired the diaries, confirmed to the Inquiry that he applied no consideration of privacy when acquiring them. His understanding was that the diaries would not be published without the consent of the McCanns; he appeared not to realise that the acquisition of the diaries alone involved a substantial breach of Dr McCanns privacy, even without the intention to publish. The Inquiry heard two conflicting accounts of the approach taken by the NoTW to gaining the consent of the McCanns to publish. First, Mr Myler told the Inquiry that he had instructed Mr Edmondson to make it clear to the McCanns PR assistant, Clarence Mitchell, that the NoTW had the whole diary and that they were planning to publish extracts of it. He asserted that Mr Edmondson led him to believe that this had been done.102 Mr Edmondson, by contrast, gave evidence that he had had express instructions from Mr Myler to do no such thing.103 Instead, he said he was instructed to have a conversation with Mr Mitchell that was woolly and ambiguous. He was told not to reveal that the NoTW had
3.16
3.17
F
3.18
3.19
3.20
p37, lines 3-7, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-14-November-2011.pdf 98 pp84-86, lines 8-1, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-13-December-20111.pdf 99 p22, lines 8-13, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-12-December-20111.pdf 100 para 236, http://www.bailii.org/ew/cases/EWHC/QB/2008/1777.html 101 Part F, Chapter 5 102 p89, lines 20-24, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-14-November-2011.pdf 103 pp66-67, lines 23-7, Ian Edmondson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcriptof-Morning-Hearing-9-February-2012.pdf
97
508
the diaries in its possession, and not to reveal that they intended to publish extracts from the diaries, but to indicate that something would be published and to seek consent for the publication. This tactic of not giving full disclosure was to avoid the McCanns preventing publication by direct approach to Mr Myler, or by seeking an injunction.104 For the reasons I set out in greater detail below,105 I accept Mr Edmondsons account. 3.21 It seems clear from these examples that, despite some evidence to the contrary, the NoTW was not particularly exercised by issues of privacy, particularly in the context of big stories. While Mr Crone was able to advise on what approach a court might take, such advice was used at least as much to determine strategy for evading legal intervention such as injunctions as to inform a principled decision on how to proceed. This is another manifestation of what may be identified as a general theme running through the culture, practices and ethics of the press, not merely prevalent at the NoTW but also elsewhere: the focus was only on legal risk, not on ethical risk (and, one might add, the dictates of ethical journalism) and the rights of the individual.
4. Intrusion
Phone hacking
4.1 As explained earlier, it is not the business of this part of the Inquiry to arrive at conclusions on what may be described as a high level of granularity in relation to the facts relating to phone hacking. Although much, if not all, is likely to emerge during the course of criminal proceedings, further or detailed analysis can only be undertaken once the criminal investigation and any subsequent prosecutions are complete. The activities of private investigator Glenn Mulcaire and former royal editor of the NoTW, Clive Goodman in the period between November 2005 and June 2006 were the subject of criminal proceedings in which both pleaded guilty; they were sentenced by Mr Justice Gross in January 2007. These proceedings are discussed in detail earlier in the Report.106 The sentencing of Mr Mulcaire and Mr Goodman set in train a number of civil claims brought by victims of alleged phone hacking against News Group Newspapers (NGN) and Mr Mulcaire. For example, on hearing of the conviction of Mr Mulcaire and Mr Goodman, the lawyer acting for Gordon Taylor, Mark Lewis, believed that information published about Mr Taylor had been obtained through illegal methods and advised his client to bring a civil claim. At this time, Mr Lewis explained in his evidence that it was believed there was a handful, in the region of 10 or 12 of victims of phone hacking.107 It is now clear that the numbers of potential victims has swelled well beyond this figure. In her evidence to the Inquiry Deputy Assistant Commissioner Sue Akers identified that there were potentially 6,349 victims that could be identified from the Mulcaire material, in respect of which 4,375 names were linked to phone numbers.108 Of those, 829 people were regarded by the police as being likely victims of phone hacking.109
4.2
4.3
4.4
p68, lines 19-22, Ian Edmondson, ibid Part F, Chapter 5 106 Part E, Chapter 2 107 p25, lines 8-13, Mark Lewis, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-23-November-20111.pdf 108 p5, lines 21-25, Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-MorningHearing-6-February-2012.pdf 109 p6, lines 14-23, Sue Akers, ibid
105
104
509
4.5
The admissions of the NoTW in the range of civil claims brought in the wake of the convictions of Messrs Mulcaire and Goodman are important in establishing the extent of phone hacking at the title. On 12 May 2011 NGN admitted liability for the entirety of Sienna Millers claim110 and, through a statement in open court read on 7 June 2011, it accepted that confidential and private information had been obtained by the unlawful access of her voicemail messages, that confidential and private information had been published as a result, and that there had been an invasion of her privacy, breaches of confidence and a campaign of harassment for over 12 months.111 NGN accepted that these activities should not have taken place and that the articles should not have been published.112 NI has provided to the Inquiry a list of further admissions made in other proceedings: these include that Glenn Mulcaire had gained access to voicemails, and in some of the claims it is admitted that use was made of confidential information, obtained by accessing voicemails, in published articles. Rupert Murdoch gave evidence that, in the 72 civil cases that had been settled by 17 April 2012, NGN had assessed whether or not it was likely that voicemail interception occurred and accepted liability in principle only where it was appropriate to do so.113 The admissions by NoTW that voicemails have been unlawfully accessed, and the discovered information subsequently published, is significant. There can be no justification for the conduct admitted by NGN Ltd: wholly unsurprisingly, no public interest argument was advanced in any of the claims. It is probably uncontroversial to state that phone hacking at the NoTW was not limited to Clive Goodman, but that there were an unknown number of others who were involved. Some evidence on this matter was given by Paul McMullan, Stuart Hoare and James Hanning. As I have already noted, Mr McMullan was not an attractive witness and was prone to exaggeration. Furthermore, the evidence given by Mr Hoare and Mr Hanning was hearsay evidence only, reporting conversations with Stuart Hoares late brother Sean. In addition, Sean Hoare had suffered from both drug and alcohol addiction problems whilst working for the NoTW, and he left the paper under circumstances which were not entirely happy.114 These matters have obvious implications for the confidence that can be placed on their evidence. However, notwithstanding these considerable caveats, I am prepared to place some weight on this evidence, given its consistency with the evidence which has emerged in particular from the civil claims, from the MPS, and from victims of phone hacking. Mr McMullan described the interception of telephone calls as a device that journalists had used for a long time. He said that, before 2000, the use of scanners to intercept conversations and obtain stories was widespread among journalists.115 He went on to say that intercepting voicemail messages was a school yard trick that was in common use among the general population.116 He recalled a trade in PIN numbers and said that he had personally swapped
4.6
4.7
4.8
4.9
p4, para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Sienna-Miller. pdf 111 http://www.atkinsthomson.com/07.06.2011%20-%20Sienna%20Miller%20Statement%20in%20Open%20Court.pdf 112 ibid 113 p45, para 194, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-KeithRupert-Murdoch2.pdf 114 p6, lines 8-13, Stuart Hoare, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-19-December-2011.pdf 115 p47, lines 14-18, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-29-November-2011.pdf 116 pp50-51, lines 19-24, Paul McMullan, ibid
110
510
the number of Sylvester Stallones mother for that of David Beckham.117 He said that the technique of hacking into voicemail messages was not uncommon among journalists on the NoTW118 although, in fairness to the NoTW but without necessarily accepting it as other than unsupported assertion, I should note that he also said that he:119 ...thought the News of the World was one of the least bad offenders. The others were much worse. 4.10 It is a matter of regret that Mr McMullan went further than was appropriate in his evidence, given the need to safeguard any future criminal proceedings and, for obvious legal reasons, his assertions of wider knowledge were not further pursued. It is perhaps a true measure and reflection on the man that Mr McMullan, alone among the witnesses who had appeared in front of the Inquiry, continued to maintain that:120 ...phone hacking is a perfectly acceptable tool, given the sacrifices that we make, if all we are trying to do is to get to the truth. 4.11 Mr Hoare, giving evidence of conversations he had had with his brother Sean, who died in July 2011, said that he had been told by his brother that phone hacking was a daily routine at the NoTW and, possibly to a lesser extent, at The Sun. In line with Mr McMullans view, Sean Hoare told his brother that the practice had been taken to the NoTW from The Sun.121 Mr Hanning said Sean Hoare had told him that he himself had hacked phones, on numerous occasions, whilst working at the NoTW;122 he gained the impression from his conversations with Mr Hoare a number of other employees of NoTW had engaged in phone hacking. Mr Hanning related a story told to him by Sean Hoare of a senior executive taking a call from a celebrity, who gave him her PAs phone number in case he needed to get in touch, and then passing the number immediately to a colleague so that it could be hacked.123 Another example he gave was purchasing the news list (that is to say the list of stories that are to be run) from another paper. Mr Hanning said that he had been told that this was a system which involved Mr Hoare and a colleague taking 400 in cash from the NoTW, paying 200 to their source and keeping 100 each.124 Mr Hoare told the Inquiry that his brother had described to him a process whereby a specific colleague would be able to obtain the location of a person from their cell phone number.125 It is speculated that one possible source for this information was the Police Service, although in practice it must also be possible that such information might ultimately come from the mobile phone operator who has access both to user data and cell site information. Mr Crone confirmed to the Inquiry that he provided advice on the legality of phone hacking in 2004, but due to legal professional privilege he would not say to whom he gave the advice or in
4.12
4.13
4.14
p49, lines 14-18, Paul McMullan, ibid p49, lines 10-16, Paul McMullan, ibid 119 p61, lines 22-23, Paul McMullan, ibid 120 p44, lines 18-21, Paul McMullan, ibid 121 p9, lines 9-21, Stuart Hoare, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-19-December-2011.pdf 122 p34, lines 7-12, James Hanning, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-19-December-2011.pdf 123 pp35-36, lines 21-7, James Hanning, ibid 124 pp37-38, lines 23- 8, Stuart Hoare, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-19-December-2011.pdf 125 pp15-17, lines 8-5, Stuart Hoare, ibid
118
117
511
what context.126 Without attempting to draw any conclusions about how many journalists or executives were engaged in, or aware of, phone hacking, it does seem clear, to use the words of Mr Silverleaf QC (albeit also having regard to additional evidence that was not available to him in June 2008), that there was a culture of illegal information access deployed at NGN in order to produce stories for publication. It is inconceivable that this was not symptomatic of a broader culture at the paper which regarded the imperative of getting information for stories as more important than respecting the rights of any individuals concerned or, indeed, compliance with the Editors Code or the law.
Surveillance and the use of private investigators

4.15 There were three private investigators who have been identified as working for, or carrying out a significant amount of work for the NoTW. These are Glenn Mulcaire, Derek Webb and Steve Whittamore. They had different specialisations. For evident legal reasons this Report will not look in any detail at the employment of Mr Mulcaire by the NoTW. Whereas Mr Mulcaire was very much associated with phone hacking, Mr Whittamores metier was to obtain personal data, such as phone numbers, addresses and vehicle registration details. Mr Webb, by contrast, was an expert in surveillance and was used solely for that purpose. The Inquiry has not heard evidence of any other individual private investigators working for the NoTW but cannot assume that there were only three. Mr Webb told the Inquiry that he heard rumours about other private investigators working between 2003 and 2007 but that, beyond 2009, he was not aware of any private investigators other than himself working for the newspaper.127 Mr Whittamore provided services across very many national titles, and other media organisations, which demonstrates that the use of private investigators to obtain access to personal data was, at least until 2006, routine as a journalistic practice. According to the Information Commissioners report What Price Privacy Now, the ICO identified 228 transactions linked to the NoTW, through 23 journalists. This put the NoTW as the 5th highest user of Mr Whittamores services by volume of transactions and the 6th highest user by number of commissioning journalists.128 Mr McMullan told the Inquiry that the use of private investigators was too extensive. He said that in some weeks the NoTW paid Steve Whittamore 4,000.129 Operation Motorman and its implications in this context are covered in detail elsewhere in this Report,130 and the issue of how the NoTW reacted to the disclosure of Mr Whittamores activities is covered later in this section. For these purposes it is sufficient to note that use of Mr Whittamore to obtain personal data, whether legitimately or otherwise, was routine at least until 2006. No evidence has been presented to suggest that the NoTW continued to use private investigators to obtain personal data in this way subsequently, in particular after Mr Mylers arrival as editor.
4.16
4.17
pp32-36, lines 3-22, Tom Crone http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-13-December-20111.pdf 127 p126, lines12-25, Derek Webb, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-19-December-2011.pdf 128 Information Commissioners Office, What Price Privacy?, p9 http://www.ico.gov.uk/upload/documents/library/ corporate/research_and_reports/ico-wppnow-0602.pdf 129 p78, lines 6-13, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-29-November-2011.pdf 130 Part E, Chapter 3
126
512
4.18
I turn now to Mr Webb. According to Mr Crone, it was and is a standard part of journalistic practice to watch the subjects of stories.131 Mr Webb was recruited to work for the NoTW in 2003 by Mr Thurlbeck, whom he had met whilst working as a police officer, in order to provide surveillance services.132 Mr Webb provided these services for the NoTW from 17 December 2003 until 20 November 2007, and then again from 20 March 2009 until the title closed in 2011.133 During that time Mr Webb placed approximately 150 different people under surveillance on instructions from the NoTW.134 When Mr Webb started working for the NoTW he obtained a private investigators licence (although that was not required by the paper),135 dubbed himself Silent Shadow and invoiced the company for each shift worked.136 He was given certain ground rules:137 They said that I do not go on private land, any private property, do not go hunting through rubbish bins and do not take pictures of photographs of children or follow children connected to families. So if the child walks up the road, dont follow the child. His instructions sometimes did include following relations or contacts of celebrities,138 for instance in the hope that they would lead him to the celebrity in question.139
4.19
4.20
Throughout the period that he worked for the NoTW Mr Webb worked full time for them, carrying out surveillance on a mix of around 85% celebrities, politicians and sports stars, with the remaining 15% being people suspected of drug offences, addictions or crime.140 From the work log Mr Webb provided to the Inquiry, it is clear that the majority in the first category were celebrities, and most of the instructions would be tips about sexual relationships, affairs and intimate relationships.141 Mr Webb was clear that the number and nature of his assignments did not change at all in 2007 when Mr Myler took over as editor of the NoTW.142 Mr Thurlbeck, who told the Inquiry that he had tasked Mr Webb with many dozens of assignments,143 suggested the assignments were a mix of investigations into intimate relationships, drug taking or fraternising with undesirables.144 However, Mr Webb said that people suspected of fraternising with criminals formed no part of the surveillance that he undertook,145 and the work log provided by Mr Webb indicated that surveillance with a view to revealing criminal behaviour was very rare indeed.
4.21
p58, lines 18-9, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-14-November-2011.pdf 132 p1, paras 2-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Derek-Webb. pdf 133 p1, para 2, ibid 134 p99, lines 19-22, Derek Webb, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-15-December-20111.pdf 135 p103, lines 10-16, Derek Webb, ibid 136 p102, lines 13-25, Derek Webb, ibid 137 p133, lines 19-25, Derek Webb, ibid 138 p141, lines 18-25, Derek Webb, ibid 139 p130, lines 18-24, Derek Webb, ibid 140 pp134-135, lines 19-7, Derek Webb, ibid 141 p135, lines 13-19, Derek Webb, ibid 142 p111, lines 4-11, Derek Webb, ibid 143 p27, lines 20-23, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-12-December-20111.pdf 144 p29, lines 1-4, Neville Thurlbeck, ibid 145 p136, lines 1-4, Derek Webb, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-15-December-20111.pdf
131
513
4.22
Mr Webb was tasked by different journalists working for the news desk who would call or email with instructions.146 Mr Thurlbeck told the Inquiry that all the assignments given to Mr Webb would be the result of some specific intelligence as ...it was too expensive to go on fishing expeditions . and its just not something we would do..147 This was confirmed by Mr Webb.148 Mr Thurlbeck explained that there would be consideration of whether the alleged behaviour was worth reporting as being in the public interest before Mr Webb would be tasked. These discussions and decisions were not, however, recorded,149 and Mr Webb was not himself ever involved in any discussion of the public interest which justified the surveillance.150 Mr Edmondson explained that, in relation to affairs, the consideration would largely be around whether the person was:151 projecting themselves in media as wholesome, faithful, would never cheat on their wife, and then doing something else in private.
4.23
4.24
The ambiguity and subjectivity surrounding the terminology projecting themselves should of course be noted, and in any event Mr Edmondson drew a distinction between how carefully these questions were considered before and after Mr Mosleys successful action against the NoTW.152 Mr Webb told the Inquiry that he was never involved in, or told of, any public interest considerations. Perusing the work log provided by Mr Webb, it would be very surprising indeed if all, or even the majority, of the instances of surveillance of celebrities and sports stars (generally in order to reveal intimate relationships) was so justified. Although not expressly mentioned in his evidence, it is clear from other evidence the Inquiry has received that, in 2007, Mr Myler brought in a new rule strictly limiting the use of private detectives.153 Despite this apparent change in policy there appears to have been no immediate change of any sort with regard to Mr Webbs employment: the nature and quantity of his work remained the same.154 He did, however, stop working for the NoTW between November 2007 and January 2009 when he was charged with aiding and abetting misconduct in public office. Mr Crone told him that he would have to stop working for the NoTW if he was charged, but that he could come back to work if he was acquitted or if the charges were dropped.155
4.25
pp109-110, lines 11-10, Derek Webb, ibid p30, lines 5-9, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-12-December-20111.pdf 148 p129, lines 3-4, Derek Webb, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-15-December-20111.pdf 149 p32, lines 4-19, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-12-December-20111.pdf 150 p123, lines 17-19, Derek Webb, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-15-December-20111.pdf 151 p55, lines 1-11, Ian Edmondson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-9-February-2012.pdf 152 p56, lines 15-19, Ian Edmondson, ibid 153 pp58-65, lines 6-18, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Afternoon-Hearing-14-December-2011.pdf; p3, para 23, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/12/Witness-Statement-of-Colin-Myler1.pdf; some interpreted the restrictions as a complete ban on the use of private investigators: see p59, lines 8-12, Ian Edmondson, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/02/Transcript-of-Morning-Hearing-9-February-2012.pdf 154 p111, lines 4-25; pp114-115, lines 9-2, Derek Webb, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/12/Transcript-of-Afternoon-Hearing-15-December-20111.pdf 155 pp115-119, lines 19-4, Derek Webb, ibid
147
146
514
4.26
In the event, the charges were dropped and Mr Webb went back to the NoTW. At that point, he was told by Mr Thurlbeck that he would have to make some changes to the arrangements for his employment. Specifically, he was asked to change his company name from Shadow Watch (to which he had changed it earlier from Silent Shadow) to Derek Webb Media, he was asked to surrender his PI licence (which had, in fact, lapsed while he was not working for the NoTW) and he was asked to get himself an NUJ card. He complied with all these requests.156 Mr Webb was told that these changes were: in relation to the Clive Goodman affairthat they didnt want to be tied up with private investigators.157 Mr Webb was clear that he had no journalistic experience and that he never wrote an article for the paper. He nonetheless was able to acquire an NUJ card.158 This process of trying to pretend that Mr Webb was a journalist was a particularly extraordinary one. It was quite clear from Mr Webbs evidence that his role never changed and at no time did he consider himself to be doing the work of a journalist. However, clearly some executives at the NoTW felt it would be more appropriate for him to appear to be a journalist, hence the instructions relayed to him by Mr Thurlbeck. Mr Edmondson said that surveillance was something that a journalist or photographer would be expected to do,159 but accepted that persuading Mr Webb to join the NUJ in order to be able to employ him, despite the introduction by Mr Myler of significant restrictions on using private investigators, was just a sham.160 Mr Edmondson further told the Inquiry that Mr Myler, Stuart Kuttner and Mr Crone were all aware of this pretence.161 Mr Myler said that he regarded Mr Webb as a private investigator when he became aware of him in 2007 after his arrest.162 Mr Myler said that once the charges against Mr Webb had been dropped, Mr Edmondson had approached him and asked if he would be more comfortable employing Mr Webb if he was a member of the NUJ. Mr Myler agreed, as: it made him more aware of the responsibilities of working for the News of the World. 163 Mr Myler did not suggest that this process made Mr Webb a journalist.164 He was confident that appropriate oversight and processes were in place to ensure that Mr Webb was not doing anything that was not lawful and legitimate.165 Mr Crone, however, told the Inquiry that he thought Mr Webb was a freelance journalist.166 His evidence on this point may be doubted: Mr Webbs evidence was that, in 2007, he had discussed his criminal charge with Mr Crone in detail and Mr Crone had personally arranged the compromise agreement with Mr Webb when he was forced to leave his employment because of the charge, which directly related to his activities as a private investigator.167
4.27
4.28
4.29
pp119-120, lines 25-13, Derek Webb, ibid pp120-121, lines 24-2, Derek Webb, ibid 158 pp121-122, lines 13-6, Derek Webb, ibid 159 p57, lines 2-13, Ian Edmondson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-9-February-2012.pdf 160 pp60-61, lines 23-1, Ian Edmondson, ibid 161 p61, lines 2,19, Ian Edmondson, ibid 162 p65, line 19-21, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-14-November-2011.pdf 163 p66, line 3-14, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-14-November-2011.pdf 164 p66, lines 11-13, Colin Myler, ibid 165 pp68-69, lines 24-15, Colin Myler, ibid 166 p52, lines 3-6, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-13-December-20111.pdf 167 pp117-118, lines 2313, Derek Webb, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Afternoon-Hearing-15-December-20111.pdf
157
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4.30
There were two particular cases of surveillance which stood out from Mr Webbs evidence: both were notable because they involved opponents or campaigners against the NoTWs involvement in phone hacking. The first example was the surveillance of Mark Lewis and Charlotte Harris, lawyers representing claimants in the civil claims brought against NoTW in respect of phone hacking. Mr Webb was tasked to follow each lawyer in order to try to discover whether they were having an affair. The surveillance task (which involved, for part of the time, the surveillance of the wrong person) lasted a week. The rationale for the surveillance of Ms Harris and Mr Lewis was the concern, shared by Julian Pike at Farrers, solicitors then acting for NoTW, and Mr Crone, that they were not respecting confidentiality agreements relating to phone hacking settlements and that this was detrimental to NGNs position. They further concluded that the right course of action was to try to prevent Ms Harris and Mr Lewis from acting in subsequent cases. One of the tools in this campaign was to be surveillance, to identify the nature of the relationship between the two solicitors that might lend circumstantial support to the allegation that they were exchanging confidential information.168 Mr Pike said that he was aware that the NoTW had put Ms Harris and Mr Lewis under surveillance. He defended the decision to do so, saying that he would do the same again in the same circumstances.169 He claimed not to know that the surveillance was not being carried out by a journalist.170 Mr Crone asserted that he did not commission private investigators to watch Ms Harris and Mr Lewis, but instead had agreed that Mr Webb would be asked to ascertain the nature of the relationship between them.171 Mr Edmondson told the Inquiry that the surveillance of Ms Harris made him uncomfortable because it was not something which was likely ever to lead to a publishable story.172 He said that he raised this with Mr Crone and that:173 Tom Crones response was that he accepted that, namely that it was unlikely material for inclusion in the newspaper as a story, but told me that the main reason to investigate was that it could provide the newspaper with good leverage against the two individuals.
4.31
4.32
4.33
4.34
Mr Crone continued to maintain, despite being the only witness before the Inquiry to believe it, that Mr Webb was employed as a freelance journalist,174 though he did accept that in undertaking the specific task of surveillance of Mr Lewis and Ms Harris he was doing something for the legal department.175 This whole saga reflects poorly on all involved. The use of covert surveillance against solicitors representing the opposition in damaging litigation is dubious at best, particularly when it
4.35
pp3-4, para 5-8, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-JulianPike1.pdf 169 p18, lines 11-14, Julian Pike, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-13-December-20111.pdf 170 pp3-4, lines 24-6, Julian Pike, ibid 171 p57, lines 4-11, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-14-November-2011.pdf 172 p62, lines 3-8, Ian Edmondson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-9-February-2012.pdf 173 pp62-63, lines 25-4, Ian Edmondson, ibid 174 pp57-63, lines 15-15, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-14-November-2011.pdf 175 p63, lines 19-21, Tom Crone, ibid
168
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seems clear that the surveillance was commissioned in order to put pressure on the solicitors to withdraw from the litigation. It is a case of attacking the man and not the ball. Mr Crone must, ultimately, take final responsibility. Despite his efforts to persuade the Inquiry to the contrary, in my judgment he well knew that Mr Webb was not carrying out proper journalistic functions. Additionally, it was primarily his decision to engage Mr Webb to conduct discreet surveillance of Mr Lewis and Ms Harris in circumstances where there was no conceivable journalistic or other justification to do so: this was clearly in breach of their Article 8 rights. 4.36 The second notable example of NoTW surveillance is equally dubious. Tom Watson MP, arguably the most energetic of the anti-hacking MPs, and a member of the Culture Media and Sport (CMS) Select Committee was placed under surveillance during the investigation by the CMS Committee of phone hacking. As far as Derek Webb was concerned he was asked to try to prove an alleged affair (there was no affair).176 The surveillance seems to have been part of an orchestrated attempt to put pressure on Mr Watson to step back from the hacking issue. Around the same time as the surveillance was commissioned, Lord Mandelson confirmed that Rebekah Brooks had asked him for Mr Watson and others on the Select Committee to be pulled off the hacking issue.177 It now appears that Mr Watson may not have been the only member of the Select Committee targeted for surveillance. On 3 May 2012, when reviewing Mr Watsons book,178 Mr Thurlbeck (describing what he had told Mr Watson in confidence and which Mr Watson had recorded in the book) wrote in the New Statesman:179 So the public now knows that, at the height of the hacking scandal, News of the World reporters were despatched to spy round the clock on the members of the culture, media and sport committee. The objective was to find as much embarrassing sleaze on as many members as possible in order to blackmail them into backing off from its highly forensic inquiry into phone-hacking. It was a plan hatched not by the News of the World but by several executives at News International up the corridor in Deepcarpetland, as the area staffed by managers and pen-pushers was known. And it failed because the reporters had grave reservations, so dithered and procrastinated. It wasnt journalism, it was corporate espionage. Ten days later, the plot was cancelled. 4.38 Mr Thurlbecks article must be treated with some caution. When requiring him to provide a statement, the Inquiry made it clear that it wished to be informed about other aspects of the culture, practices and ethics at the NoTW and then specifically asked about his awareness of the surveillance carried out by Mr Webb (although the question was clearly not limited to Mr Webb). His answer was that Mr Webb had been engaged by the majority of the reporters on the NoTW (including him) to undertake what journalists do on all newspapers have been doing for more than a century, namely to observe human behaviour and report on it and that, so far as he was aware, Mr Webb had not been instructed to do anything illegal.180 He did not provide this obviously extremely significant information (set out in the piece in the New Statesman) about the culture and practices within the paper. Neither did he volunteer
4.37
pp39-40, lines 23-8, Tom Watson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-22-May-2012.pdf 177 p60, lines 8-14, Lord Mandelson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-21-May-20121.pdf 178 Watson, T & Hickman, A, Dial M for Murdoch 179 www.newstatesman.com/politics/uk-politics/2012/05/review 180 p9, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-NevilleThurlbeck6.pdf
176
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it when he gave evidence on 12 December 2011. In view of my concern about the way in which this account emerged, I make no finding about it; if true, however, it reveals a very disturbing state of affairs and is suggestive of an untouchable mentality. I share the concern expressed by the CMS Select Committee about the fact that NI was undertaking discreet surveillance of members of that Committee, a matter for which Mr James Murdoch has quite rightly fulsomely apologised.181 4.39 I do not pass direct comment on the other assignments Mr Webb undertook between 2007 and 2011, save to note that any public interest justification for the surveillance of the many celebrities and sports stars contained in Mr Webbs work log is likely to have been extremely thin in the vast majority of cases. It appears more likely that covert surveillance, like phone hacking, was considered by some within the NoTW to be an ordinary technique for news gathering, rather than an exceptional technique to be used where justified by the public interest in the underlying story.
Persuasion and harassment

4.40 It is a fact of life that not everybody is always keen to cooperate with the press, particularly when details of their own private lives or the private lives of their friends or family are involved. Journalists have therefore developed methods of persuading them to talk. A specific example arises in relation to the NoTW and has already been touched on. This relates to the approach of Mr Thurlbeck to the women involved in the Max Mosley case. The facts of the matter are that, following publication of the original story on 30 March 2008, Mr Thurlbeck sent emails to two of the women involved in the story in the following terms:182 Hope youre well. Im Neville Thurlbeck, the chief reporter of the News of the World, the journalist who wrote the story about Max Mosleys party with you and your girls on Friday. Please take a breath before you get angry with me! I did ensure that all your faces were blocked out to spare you any grief and soon the story will become history, as life and the news agenda move on very quickly. There is a substantial sum of money available to you or any of the girls in return for an exclusive interview with us. The interview can be done anonymously and your face can be blacked out too. So its pretty straightforward. Shall we meet/talk? 4.41 The following day he sent the two women another email:183 Im just about to send you a series of pictures which will form the basis of our article this week. We want to reveal the identities of the girls involved in the orgy with Max, as this is the only follow up we have to the story. Our preferred story, however, would be you speaking to us directly about your dealings with Max and for that we would be extremely grateful. In return for this, we would grant you full anonymity, pixelate your faces in all photographs and secure a substantial sum of money for you. This puts you firmly in the driving seat and allows you much greater control ... 4.42 As is clear, the women in question were given Hobsons choice: cooperate with the NoTW or face public humiliation.
p43, http://www.parliament.uk/documents/commons-committees/culture-media-sport/Uncorrected_transcript_ CMSC_10_November_11_James_Murdoch.pdf 182 para 81, http://www.bailii.org/ew/cases/EWHC/QB/2008/1777.html 183 ibid
181
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4.43
Mr Thurlbeck gave evidence that, although his name was on these emails, they were dictated to him184 by Ian Edmondson.185 He was seemingly reluctant to name Mr Edmondson (he initially described him as a man on the news desk; Mr Edmondson was in fact the news editor) and agreed that he had given this account before Mr Justice Eady in the civil case brought by Mr Mosley. Mr Edmondson, on the other hand, said that he had no memory of the emails, or of emails of that nature being sent. He said they were drafted in language he would not use.186 Mr Edmondsons evidence was somewhat equivocal. He was clear that he would have expected an approach to be made to the two women seeking their cooperation in a follow-up article. However, he asserted that he would not, in any circumstances, have allied himself with this type of approach to any witness.187 In truth, it does not matter which account is accurate. If either Mr Thurlbeck or Mr Edmondson was concerned about what was happening, that itself should have triggered some mechanism for review. This was not some small story on one of the back pages: what was being discussed was going to affect peoples lives. Mr Thurlbeck concedes that they were sent by him, in his name and willingly.188 It follows, therefore, that Mr Thurlbeck must accept responsibility for them and not merely as the cipher for someone else. He was after all the chief reporter at the paper and a journalist of very considerable experience. As I have already observed, in his judgment in the Mosley case, Mr Justice Eady likened the emails to blackmail. He commented on Mr Thurlbecks inability to see that point and cited the following cross examination from the trial:189 Q Lets be direct about this. There is a clear threat here that if they dont cooperate they will expose them in the News of the World? A No, I dont accept that. I think there was a clear choice here but there was no attempt to threaten them. ... Q Lets get this straight. If the blackmailer says to the victim, Either you pay up or Ill put your picture in the newspaper hes offering him a very fair choice? A No. Q Theres no threat? A No, because Im asking for something here. Your example states that Im asking for something in return for issuing a threat. Q Yes, indeed you are. A No, Im offering to give them something. Im offering to pay them money for an anonymous interview. Im offering to pay them, not to take anything from them, so in that sense Im not blackmailing them at all. That thought never crossed my mind. Im offering them a choice.
4.44
4.45
p92, lines 10-24, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-12-December-2011.pdf 185 p93, lines 20-21, Neville Thurlbeck, ibid 186 p45, lines 2-23, Ian Edmondson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-9-February-2012.pdf 187 p51, lines 18-21, Ian Edmondson, ibid 188 p92, lines 23-24, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-12-December-2011.pdf 189 para 87, http://www.bailii.org/ew/cases/EWHC/QB/2008/1777.html
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4.46
In his evidence to the Inquiry, it seemed that Mr Thurlbeck still could not see the point and was untroubled that a High Court judge took a different view to his. Further, he appeared to suggest that all others at the NoTW shared his view. He said:190 The point that Mr Justice Eady makes is that it could be interpreted as being blackmail. I dont interpret it that way, and we didnt at the News of the World. Nobody at the News of the World nobody, from the editor down has discussed or accused me of blackmailing these girls. Now, if I had, I would have expected Mr Myler, who was a very fair-minded man, to have reprimanded me severely. We didnt have a conversation about it because it simply was not the case.
4.47
Mr Thurlbeck further explained that this was normal practice:191 People would often be reluctant to help a newspaper because of their identities coming out, and often deals would be done to protect their identities. We would say, Look, if you talk to us anonymously, then we can write a story about this. This happens all the time. [.] This is the course of a normal journalistic practice, if you like, offering people a degree of anonymity in return for evidence that could support a story.
4.48
F
4.49
To the CMS Select Committee in 2009, Mr Crone denied both that Mr Thurlbecks behaviour could constitute blackmail and that the judge had considered that it might do so.192 Despite Mr Crones approach in front of the Committee, he took a different line when he gave evidence to the Inquiry. When asked if he accepted that the emails amounted to blackmail he replied:193 They were pretty close, I think. Mr Myler accepted, both in the High Court and to the Inquiry, that he could see that the emails probably could not be interpreted other than as a threat and that he was surprised by them.194 Mr Justice Eady concluded from the failure of Mr Myler to take any disciplinary action at all against Mr Thurlbeck that:195 it would appear that Mr Myler did not consider there was anything at all objectionable about Mr Thurlbecks approach to the two women, as he did not query it at any stage. This discloses a remarkable state of affairs.
4.50
Mr Myler accepted this criticism.196 He contradicted Mr Thurlbecks assertion that no one had discussed the matter with him, saying that he had, in fact, admonished Mr Thurlbeck197 and, by implication, had also raised the issue with Mr Edmondson,198 making it clear that care needed to be taken. He told the Inquiry that writing in that way was unnecessary and
p4, lines 1-10, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-12-December-20111.pdf 191 pp92-97, lines 21-8, Neville Thurlbeck, ibid 192 http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/9072101.htm 193 p75, lines 1-3, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-13-December-20111.pdf 194 p44, lines 17-24, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-14-November-2011.pdf 195 para 86, http://www.bailii.org/ew/cases/EWHC/QB/2008/1777.html 196 p47, lines 14-24, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-14-November-2011.pdf 197 p45, lines 1-3, Colin Myler, ibid 198 p46, lines 3-5, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-14-November-2011.pdf
190
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totally inappropriate.199 Mr Edmondson told the Inquiry that, on reading the emails now, he thought they were a threat.200 4.51 I observe that Mr Mylers evidence to the Inquiry is inconsistent with his evidence to Mr Justice Eady,201 to the effect that he did not at any stage raise any concerns with Mr Thurlbeck. It is likely that what he said to Mr Justice Eady (when the relevant matters were fresh in his mind) was correct but, again, the importance of this episode is what it says about the culture at the NoTW, the practice of journalism at the paper and the lack of attention paid to the rights of those who not merely might be affected but undoubtedly would be seriously affected by what was published. Rupert Murdochs evidence on this issue was also revealing. Although he made it clear that at the time of giving his evidence he had not acquainted himself with the detail of Mr Justice Eadys judgment, Mr Murdochs initial reaction to the judges assessment was:202 No, its not my position at all. I respect him and I accept what he says, Im just simply saying that a journalist doing a favour for someone in returning [sic] for a favour back is pretty much everyday practice. When probed on this issue he claimed I dont know if she was offered money but it happens, and subsequently said:203 And I may well agree with every word if I read it [i.e. the judgment of Eady J]. But its a common thing in life, way beyond journalism, for people to say, Ill scratch your back if you scratch my back. 4.53 Mr Murdoch did go away and read the judgment; he subsequently wrote to the Inquiry clarifying his evidence on this issue and explaining that it was not his intention to appear to take issue with the judges conclusions. However, although Mr Murdoch would no doubt not wish to countenance the deployment of tactics tantamount to blackmail, his more general observations about the doing of favours and back-scratching are extremely revealing as to the culture, practices and ethics of the press more generally, and far more so than simply in the circumstances which he was then discussing. It is also revealing that the judgment of Mr Justice Eady had not been brought to Mr Murdochs attention prior to his giving evidence to the Inquiry, or that he had chosen not to read it. It was, after all, a judgment in which the NoTW had been found to be guilty not only of practices tantamount to blackmail, but also of casual and cavalier journalism. It was costly for the NoTW and, according to many of the NoTW witnesses, it had led to a change in approach to privacy generally. That Mr Murdoch was not apparently familiar with it says something about the degree to which his organisation engages with the ethical direction of its newspapers. From the foregoing, it is difficult to reach any other conclusion than that Mr Thurlbeck, and possibly Mr Edmondson, regarded the approach taken in these emails as an entirely standard way to behave. Mr Thurlbeck was supported in this view by the complete lack of negative feedback from Mr Myler or any other senior colleague. The apparent change of heart of both Mr Myler and Mr Crone is noted, but the volte face comes far too late. On this basis, it seems
4.52
4.54
p48, lines 3-11, Colin Myler, ibid p52, lines 20-22, Ian Edmondson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-9-February-2012.pdf 201 para 86, http://www.bailii.org/ew/cases/EWHC/QB/2008/1777.html 202 pp49-50, lines 23-1, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcriptof-Morning-Hearing-26-April-2012.pdf 203 p51, lines 12-15, Rupert Murdoch, ibid
200
199
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entirely probable that the approach taken in these emails was not so very unusual, that the attitude was condoned within the NoTW and that subsequent retractions have been driven as much by the public exposure of the tactic as by any genuine belief that such an approach was inappropriate. The conclusion of the CMS Committee on this point bears repeating:204 A culture in which the threats made to Women A and B could be seen as defensible is to be deplored. The fact that News of the World executives still do not fully accept the inappropriateness of what took place is extremely worrying. 4.55 The example of the emails sent to the women in the Mosley case is an extreme instance of a technique described by the actor and comedian, Steve Coogan:205 The technique they often use is these women are often vulnerable and not canny enough to understand the techniques of the press, and I know anecdotally that they what they do is they say, Were going to run a story about you. Its going to be very unsympathetic. Were going to make you look tawdry. They say this to the girl, Were going to make you look tawdry and awful and sluttish, but if you talk to us, you can make the story all positive and friendly and nice and well make you look lovely and well give you some money as well. 4.56 Mr Coogan was himself treated in a similar way. He was called by a journalist from the NoTW and told that, if he would confirm certain aspects of a story, in return the journalist would guarantee that the more lurid details would be omitted.206 In the event, Mr Coogan confirmed the story, and the NoTW in turn proceeded to publish the whole story, including the lurid details they had promised not to print. Mr Coogan indicated that this was not the action of a rogue reporter, but had been sanctioned, or even organised, by the subsequent editor, Mr Coulson.207 In a rather different twist, Mr Driscoll told the Inquiry what happened in relation to the case of the medical records of a Premier League football manager, where information obtained by blagging was not used in a published story but was instead used to put pressure on the individual to cooperate with the paper on subsequent stories. Mr Driscoll said:208 I know there was a phone call to that football manager to tell him exactly what we knew and that he was very upset about it, and he made his thoughts known about that and said that there was no way he wanted that story to appear in public. And this is another technique on the News of the World, if you want to call it a technique, that information is a tradable commodity, and it was put to [blank] that we wouldnt use this information and in the end it was mentioned to him that we would keep it quiet and we would keep it out the public domain, and because of that, he then started cooperating with the paper. 4.58 Given that the information appears to have been accessed unlawfully, and its publication is likely to have been an actionable misuse of private information, the fact that the newspaper sought to bargain with the private medical information reveals a remarkable degree of
F
4.57
para 55, CMS Report on Press Standards Privacy and Libel ibid; pp19-20, lines 17-2, Steve Coogan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Transcript-of-Afternoon-Hearing-22-November-20111.pdf 206 p18, lines 2-9, Steve Coogan, ibid 207 p18, lines 14-21, Steve Coogan, ibid 208 p15, lines 14-25, Matt Driscoll, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-19-December-2011.pdf
205
204
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audacity and a disregard for both the privacy of the individual and the confidentiality of the information.
Deceit
4.59 Evidence to the Inquiry has revealed that it was absolutely standard practice across the industry, and certainly within the NoTW, to record all conversations without telling people that they were being recorded.209 A number of witnesses gave evidence that it was standard practice at NoTW to make tape recordings of any conversations with sources.210 Mr Thurlbeck said:211 you would have to equip yourself, obviously, with recording devices to record their admissions and write about it in the newspaper without fear of being sued for libel. Mr Edmondson argued that this was entirely proper because people might otherwise not speak frankly.212 The implication seemed to be that people may not be prepared to go so far, knowing that they were being recorded, as they would if they did not know. Whilst there may not be anything wrong with this practice (and a true record of what was said can have very real value), it does at least raise questions about trust between journalists and their sources (and in instances where the recording is not of a conversation with a source but someone like Clarence Mitchell the questions arise all the more acutely). Suffice to say, there are circumstances in which it might be considered to be low level deceit. 4.60 It is not entirely clear that this is a practice permitted by the Editors Code. Paragraph 10 of the Code states: i) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held private information without consent. ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means. 4.61 The first limb of paragraph 10 appears primarily to relate to interception of a communication that does not otherwise involve the journalist, although this is not explicit. The second limb is more about a failure on the part of the journalist to be honest with those he or she is dealing with. In this context it is, at least, arguable that recording conversations without notifying the other party is a form of subterfuge. At any rate, it is not unreasonable to suppose that some consideration as to whether it is appropriate to do so should be undertaken in each case, rather than the routine recording of people without their knowledge or permission.
p2, para 1.16, Michelle Stanistreet, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/MS-Exhibit-11. pdf 210 p65, lines 15-20, Ian Edmondson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcriptof-Morning-Hearing-9-February-2012.pdf; p43, lines 15-21, Paul McMullan, http://www.levesoninquiry.org.uk/wpcontent/uploads/2011/11/Transcript-of-Afternoon-Hearing-29-November-2011.pdf 211 p63, lines 10-13, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-12-December-2011.pdf 212 p65, lines 15-20, Ian Edmondson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-9-February-2012.pdf
209
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4.62
This practice of covert recording sometimes goes further. An example is the video recording that Mr Thurlbeck persuaded his source to make of Mr Mosley. He explained that this was done for legal reasons:213 It was important for Michelle to video the orgy to ensure that we had sufficient evidence should Mr Mosley threaten to sue the News of the World for libel. But the NoTW did not simply put the recording in a cupboard until it was needed for the inevitable libel or privacy case. Instead, they put it on their website, leading to some of the privacy issues discussed above.
Blagging
4.63 Another technique that qualifies as deceit is what has been called blagging. Mr McMullan described the process of blagging on these terms:214 A blag might be: Hello, I am Mr Xs accountant, could you please fax the bill, and then you get a list of all the phone numbers that hes just rung and then you ring them all up and you find the mistress hes just rung. 4.64 Mr McMullan was clear that his belief was that this sort of activity was common at the NoTW.215 He explained why:216 Its very hard to get a story. You just dont go up to a paedophile priest and say, Hello, good sermon, and are you a priest because you like abusing choir boys? It doesnt happen. You dont say, Hello, I work for the News of the World. You have to go to the nth degree to get to the truth. Mr McMullan provided a specific example of a blag in which he was involved, securing access to a database of convicted paedophiles under false pretences and:217 basically plundered about 50 paedophiles who had raped and abused children and had served a sentence. 4.65 The circumstances described by Mr McMullan blagging in order to uncover a paedophile ring could be an example of investigative journalism in the public interest, depending on whose the database it was: blagging the information from the police or, for example, the probation service, in order to name and shame raises different issues. Given that s55 of the Data Protection Act 1998 contains a public interest defence, some kind of blags are likely to be both lawful and compliant with ethical codes, provided there is sufficient prima facie evidence to justify the blag in the first place. It is important to underline that I am not suggesting that deception is not a potentially legitimate tool within the armoury of a journalist: it will all depend on the circumstances. The concern will always be the circumstances in which and the purposes for which the deceit
4.66
p75, lines 16-19, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-12-December-2011.pdf 214 p68, lines 5-16, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-29-November-2011.pdf 215 ibid 216 pp46-47, lines 25-9, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-29-November-2011.pdf 217 p38, lines 15-25, ibid
213
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is used. There is a real public interest in exposing crime or serious impropriety, protecting public health and safety and, depending on the circumstances, preventing the public from being misled. In those cases, journalists may well have to be devious to obtain the story and nobody is likely to criticise them for behaving in that way. The issue is the abuse of that technique simply in order to pursue stories or people without any public interest justification of any sort. 4.67 The evidence from Operation Motorman,218 challenges the suggestion that blagging was used, in the majority of cases, in the public interest. To the contrary, there is clear prima facie evidence that there was no public interest in much of the information that many of the blags obtained. At the NoTW blagging was not only used to get material that would eventually form the basis of a published story. Blagging was also used as a technique to obtain the codes required to engage in other forms of illicit access to information. Mr McMullan, when asked if he had paid officials at phone companies, said:219 The people we employed were more into blagging to try and trick people out of their PIN codes and that kind of thing, rather than actually paying someone who worked at Vodafone or whatever. 4.69 Another example was given by Mr Driscoll, who described failing to track down details of the medical condition of a prominent football manager by old-fashioned means, to be subsequently called by his sports editor and told: the story is true. I have his medical records with me at the moment.220 Mr Driscoll described what he had been told about how the medical records were obtained:221 I was told its through a blagging technique. I was told that will sometimes youd get a situation where if an investigator sent a fax to a GP or a hospital saying, Im his specialist, I need these details, it was incredible how many times that would just get sent straight back. There were different techniques to obtain them and I was told they werent obtained through any illegal source but it was from through blagging at the time. 4.70 Mr Driscoll said that this blagging was not done by the news editor himself, but that:222 there were specialist people on the News of The World who did that sort of stuff special people on the news desk or features desk that he went to. 4.71 Mr Driscoll said that he was not personally happy with using blagging of this sort to get information,223 but he did not raise these concerns with the sports editor or any other senior executive at the paper because he was afraid it would damage his career:224
4.68
Part E Chapter 3 pp77-78, lines 20-2, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-29-November-2011.pdf 220 pp13-14, lines 8-8, Matt Driscoll, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-19-December-2011.pdf 221 p14, lines 13-22, Matt Driscoll, ibid 222 p15, lines 1-9, Matt Driscoll, ibid 223 p17, lines 7-8, Matt Driscoll, ibid 224 p19, lines 14-21, Matt Driscoll, ibid
219
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it would be a very brave journalist, certainly in the early years of his career on the paper, to suddenly say, Im not happy with these techniques that are being used. Youd be basically making a decision over your career there. Anyone on that floor who complained too much would find themselves pushed out, certainly. 4.72 Mr Driscoll also provided another example when he was told that someone had persuaded the Football Association into revealing information about a drugs test by pretending to be from the football club of the individual concerned. This, he said, was a story which he had obtained from various sources, but it was the blagging phone call that satisfied the legal team that the story was true and therefore safe to print.225 He suggested that this imperative to ensure that a story was true before publishing it was generally the reason for resorting to such techniques.226 Mr Driscoll asserted that this was common practice at the NoTW and widely accepted by his colleagues.227 However, despite this assertion, he was clear that the two examples of blagging set out here were the only two of which he had personal knowledge during the years that he worked at NoTW.228 Mr Myler, Mr Wallis and Mr Thurlbeck all rejected Mr McMullans evidence on the widespread use and appropriateness of blagging, and indeed most of Mr McMullans evidence generally, saying that he painted a picture of the NoTW that they did not recognise.229 Mr Thurlbeck said:230 My experience of the News of the World is that it was a highly professional organisation. It was staffed by some of the best journalists on Fleet Street, who worked with great diligence and integrity, and continue to do so. I dont I was proud to work alongside all of my colleagues. I have enormous respect for all of them. You know, there may have been a small caucus of people who gave us a bad reputation now. 4.75 I come to no conclusion as to the size of the caucus of people who were responsible for the unethical practices identified in this Chapter, including blagging. However, I do conclude that blagging was utilised at the NoTW as a means to access private information, either by using third parties or by journalists themselves.
4.73
4.74
5. Investigative journalism
5.1 More substantial use of subterfuge and deceit is generally the preserve of investigative journalism, that is to say, when subterfuge and deceit are used the press generally term
p19, lines 12-25, Matt Driscoll, ibid pp19-20, lines 22-15, Matt Driscoll, ibid 227 p1, para 7-8, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-MatthewDriscoll.pdf 228 p20, lines 16-19, Matt Driscoll, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-19-December-2011.pdf 229 p27, lines 21-24, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-14-November-2011.pdf; pp17-18, lines 16-12, Neville ThurlbecK, http://www.levesoninquiry. org.uk/wp-content/uploads/2011/12/Transcript-of-Afternoon-Hearing-12-December-20111.pdf; p95, lines 170-19, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Afternoon-Hearing-12December-20111.pdf 230 pp15-16, lines 19-3, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Afternoon-Hearing-12-December-20111.pdf
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the result investigative journalism, regardless of whether that label is strictly merited. The Inquiry heard evidence from Mr Mahmood who carried out many hundreds of investigations whilst working for the NoTW and other titles. Mr Mahmood told the Inquiry that, before he embarked on an investigation, he would provide senior and legal staff with justification as to why the story was in the public interest and why any subterfuge was justified.231 The specific methods to be used were discussed with the legal team and he would stay in constant touch with them during an investigation.232 He explained that the approach at the NoTW was much more informal than he had been used to when working for The Sunday Times. There were, for example, no formal meetings or discussions, but nonetheless everything was discussed with Mr Crone.233 Mr Mahmood gave evidence that, we were extra cautious to comply with the PCC Code, and that there was keen scrutiny of whether a proposal for the use of subterfuge would pass the public interest test. The key factors they would take into account were the exposure of criminality, or moral wrongdoing or of hypocrisy234 and whether it would be possible to obtain the same information without using subterfuge.235
Disguise
5.2 Mr Mahmood described situations in which he had masqueraded in many guises in order to obtain information for stories. In some cases, for example, he had posed as a client for prostitutes in order to secure evidence of drug dealing:236 They were dealing drugs to clients. I mean, sure, the only way to infiltrate them was to pose as a client and then the offer would be made to us. On another well known occasion Mr Mahmood posed as a Sheikh, Mohammed al Kareem, in order to get his target to relax and be himself.237 The purpose of taking on these fake personalities was to make an offer for, or wait to be offered, illegal substances or to show a willingness to undertake unlawful or immoral actions in order to expose the commission of illegality.
Inducements
5.3 The NoTW did pay for information. Mr Mahmood said:238 We advertised it. I dont think theres anything wrong with that, as long as the individuals are not profiting from their crimes by doing so. I mean, if they were whistle-blowing and helping us expose drug rings and paedophile rings and expecting a fee for that, then I see nothing wrong with that.
pp5-6, lines 23-3, Mazher Mahmood, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Morning-Hearing-12-December-2011.pdf 232 pp6-7, lines 21-3, Mazher Mahmood, ibid 233 pp8-9, lines 17-6, Mazher Mahmood, ibid 234 pp11-12, lines 25-5, Mazher Mahmood, ibid 235 pp16-17, lines 22-4, Mazher Mahmood, ibid 236 p14, lines 12-14, Mazher Mahmood, ibid 237 pp26-27, lines 13-6, Mazher Mahmood, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Transcript-of-Morning-Hearing-12-December-2011.pdf 238 p20, lines 13-19, Mazher Mahmood, ibid
231
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The issues surrounding payment for information are dealt with in detail later in this report.239 In seeking to understand the culture of the NoTW it is sufficient to note that this was considered a standard practice. 5.4 Mr Mahmood was reluctant to explain his modus operandi to the Inquiry240 but it was clear that in many cases it involved offering the target some inducement to commit the act that he was seeking to expose. Mr Mahmood pointed out that, in the Fake Sheikh case, judges both in the UK and at the European Court of Justice had ruled that there was no entrapment. He was keen to emphasise that, in his opinion, he did not entrap people. He went further, asserting that he did not believe that it was possible to ensnare normally law-abiding people into behaving in an illegal fashion;241 he also said that the number of successful prosecutions following on from his stories was testament to the fact that his methods had been tested and considered appropriate time and again by the courts.242 Entrapment by a journalist is not ordinarily a defence to the commission of a crime. There are, however, ethical questions here as to the circumstances and extent to which it is right to encourage or entice someone into the commission of an offence that they would otherwise not have committed, at least on that specific occasion. Witnesses such as Alastair Campbell have drawn attention to this question, and have criticised Mr Mahmood for his modus operandi.243 Mr Mahmood was clear that there were circumstances in which he considered it ethical to break the law in order to get a story in the public interest. He used the example of purchasing child pornography in a case that led to the conviction of the supplier. He stressed that the overriding factor was the public interest and that he had never yet been prosecuted for drugs or other offences relating to work that he had done.244 When pressed on whether there was a level of criminal behaviour to which he would not go in order to expose criminality, he indicated that he would not go out and rob a bank just to show that banks could be robbed.245
5.5
5.6
6. Approach to compliance
Responsibility and accountability for compliance
6.1 The Inquiry was told by many witnesses that the editor was responsible for everything that happened at his or her newspaper, although they would not necessarily be aware of all that was going on. This was no different at the NoTW. However, there was very little clarity about who was responsible in practical day-to-day terms for compliance with legal and ethical requirements. Whilst individual journalists were clearly required by their employment contracts to comply with the terms of the Editors Code, and to comply with other company policies and procedures, it has not been possible to ascertain who, if anyone, had senior responsibility for ensuring legal and ethical compliance within the organisation.
Part F, Chapter 6 p30, lines 5-6, Mazher Mahmood, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-12-December-2011.pdf 241 p26, lines 1-9, Mazher Mahmood, ibid 242 p30, lines 14-16, Mazher Mahmood, ibid 243 pp69-72, lines 14-23, Alastair Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Transcript-of-Morning-Hearing-30-November-2011.pdf 244 p35, lines 13-24, Mazher Mahmood, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-12-December-2011.pdf 245 p36, lines 9-11, Mazher Mahmood, ibid
240
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6.2
Mr Crone, the legal manager at News Group Newspapers (NGN), told the Inquiry that he had no role in ensuring ethical (or, it would appear, even legal) behaviour within the company:246 Im not a guardian of ethics, really..my job was really to advise on legal risk, the law relating to a particular situation that the newspaper was in or was thinking of getting in. When pressed on the point he said, I dont know who would be identified as the person most involved with compliance and ethics.247 Mr Crone suggested that corporate compliance might be the responsibility of the Company Secretary248 or the Chief Executive.249
6.3
In fact, Mr Chapman, the Company Secretary, told the Inquiry that his compliance function would have related to the commercial side of the business. He differentiated this from the editorial function and said it was limited to commercial and business support functions such as HR, production, advertising and marketing.250 Mr Chapman felt that responsibility for compliance on the editorial side of the business would sit with the editorial legal team; in other words, with Mr Crone.251 Despite Mr Crones claim that ethical compliance might be a matter for Mr Chapman, when he became aware of serious ethical and legal lapses through his involvement in the legal challenge by Gordon Taylor, Mr Crone took only limited steps to alert those within the organisation who one might think should have been responsible for dealing with them. In particular, he said that he did not discuss the concerns about a culture of illegal access to information with Mr Chapman. As has already been discussed above,252 Mr Crone told the Inquiry that he did think that James Murdoch, the Chief Executive, was made aware of the situation in the Gordon Taylor case, including all seriously relevant parts of the opinion provided by Mr Silverleaf QC.253 He appeared to think that this represented bringing the matter to the attention of the right person. James Murdoch told the Inquiry that governance was for the editor254 (at this time Mr Myler). He said that he had sought, and was given, assurances that extensive training and procedures had been put in place and that the NoTW had been thoroughly investigated with respect to phone hacking, that no new evidence had been found and that the police had closed their case.255 For his part, Mr Myler accepted ultimate responsibility for governance at the paper but said that he sought to instil:256
6.4
6.5
p63, lines 19-22, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-13-December-20111.pdf 247 p43, lines 22-23, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-14-November-2011.pdf 248 p44, lines 6-8, Tom Crone, ibid 249 p43, lines 20-23, Tom Crone, ibid 250 p85, lines 8-14, Jon Chapman, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-14-November-2011.pdf 251 p45, lines 21-23, Jon Chapman, ibid 252 Part E, Chapter 4 253 p45, lines 12-16, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-14-November-2011.pdf 254 p22, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of-MorningHearing-24-April-2012.pdf 255 pp19-20, James Murdoch, ibid 256 p3, para 19, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Colin-Myler1. pdf
246
529
a culture of individual and collective responsibility for ensuring compliance with the PCC code and the law. 6.6 Mr Myler was editor of the NoTW from February 2007 until July 2011. Although he drew some distinction between the culture in place at the newspaper before his arrival and that which he sought to deliver, he also argued that there were protocols and systems in place before he arrived and that the members of senior staff clearly understood their roles and responsibilities.257 James Murdoch similarly took the view that there were senior legal managers in post who had a lot of experience,258 and that the oversight structures in place (Management Boards and audit processes) should have been sufficient to ensure good governance.259 Rupert Murdoch, having told the Inquiry that it was his clear understanding from Les Hinton, former Executive Chairman of NI, that Mr Myler had been put in place to find out what the hell was going on,260 appears to have made no effort to follow up the matter directly. He told the Inquiry that he took no steps to see whether Mr Myler was discharging his brief as he relied on Mr Hinton to oversee the process.261 Rupert Murdoch said that Mr Myler:262 never reported back that there was more hacking than wed been told. 6.8 The Inquiry is not in a position to allocate responsibility (or blame) as between these senior individuals. What is abundantly clear from the review of relevant events more fully covered above263 is that the processes and people in place at the NoTW were not sufficient to ensure good governance. On the basis of the admissions made in the civil claims alone it is clear that the newsroom at the NoTW had, to use Mr Crones words, lost its way 264 at least with regard to phone hacking.
6.7
Data protection Operation Motorman

6.9 As might be expected, the NoTW was clearly aware that the Data Protection Act 1998 (DPA) was relevant to them. Specifically, the Inquiry heard that Mr Crone was once asked to put together a note on what the law of data protection meant in relation to working journalists, and did so. He did not, however, remember offering advice on the matter on a regular or ongoing basis,265 although he did think that there might have been legal courses and other journalistic courses where data protection issues were addressed.266
p24, lines 17-20, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-14-November-2011.pdf 258 p6, lines 4-13, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-24-April-2012.pdf 259 pp7-8, James Murdoch, ibid 260 This is denied by Colin Myler: see the analysis of the issue in Part E, Chapter 4 above 261 p28, lines 13-20, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-26-April-2012.pdf 262 p24, lines 14-17, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-26-April-2012.pdf 263 Part E, Chapter 4 264 p53, line 15, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-MorningHearing-14-November-2011.pdf 265 p37, lines 8-14, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-13-December-20111.pdf 266 p42, lines 14-17, Tom Crone, ibid
257
530
6.10
The essential narrative of Operation Motorman is set out above,267 and need not be repeated here. The NoTW, in common with the rest of the newspaper industry, does not appear to have recognised these events as having any significance for its own processes, despite the clear implication that members of its staff might, to put it at its lowest, have been engaging Mr Whittamore to undertake unlawful activities. Mr Crone accepted that he was aware of the arrest of Mr Whittamore and the fact that some of the latters customers were NI employees, but confirmed that he had not been asked to provide any advice on the DPA in relation to Operation Motorman.268 Further, there was no formal investigation of the allegations coming out of Operation Motorman.269 Mr Myler, who arrived at the NoTW in 2007, explained that there was a NI policy in place that required compliance with data protection law and that as far as he knew it was complied with throughout his tenure as editor.270 Mr Pike, the solicitor acting for NI, accepted that he was aware of the Operation Motorman material in 2008 and the implication that it pointed to a wider use of illegal methods of collecting stories within the NoTW, which could support the case being made by Mr Taylor.271 This is all in line with the approach more widely taken by national newspapers, that Operation Motorman raised no particularly pressing questions for the newspaper industry, or individual titles, to address. In one respect therefore, the NoTW is subject to the same criticism applicable to other titles: the evidence emerging from Operation Motorman and from the ICOs reports demanded action, but the evidence suggests that almost nothing was done in response. However, the NoTW is subject to specific criticism as well. The arrests of Mr Goodman and Mr Mulcaire in August 2006 came after the Operation Motorman revelations and between the ICOs publication of What Price Privacy? and What Price Privacy Now? Their arrests and subsequent convictions need to be seen in that context. A responsible title exercising effective governance would have questioned the credibility of the one rogue reporter thesis in light of the ICOs evidence of a widespread and unlawful trade in private information, and would have demanded proper investigations into compliance with legal and ethical standards by its journalists.
6.11
6.12
Accuracy
6.13 The PCC Editors Code requires the press to take care not to publish inaccurate, misleading or distorted information. Most complaints to the PCC are about alleged breaches of this provision. Mr Driscoll was clear that stories were not fabricated at the NoTW. He said: Any suggestion of that, I think, is absolutely crazy because, you know, as I said, the litigation would be too severe. It would cost too much money. 272
6.14
Part E, Chapter 3 p38, lines 1-5, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-13-December-20111.pdf 269 p42, lines 23-25, Tom Crone, ibid 270 p62, lines 4-11, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-14-November-2011.pdf 271 pp41-42, lines 11-9, Julian Pike, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-13-December-2011.pdf 272 p21, lines 6-12, Matt Driscoll, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-19-December-2011.pdf
268
267
531
6.15
Mr Wootton explained that he would very rarely run stories without getting confirmation of their truth by notifying either the celebrity or his or her agent. Sometimes that would not be necessary because the story was already in the public domain. On very rare occasions he was requested by the editor or a senior executive not to put a call in.273 In these situations the decision not to provide a right of reply would normally be to avoid the risk of leaks.274 Mr Wootton said that in his experience a right of reply would only not be given if the newspaper or the editor was 100 per cent certain of the truth of a story.275 This emphasis on accuracy as an essential protection against libel action was echoed by evidence given by many witnesses to the Inquiry and it is clear that there is a serious legal imperative to get the facts right when the material to be published might be thought to be defamatory. However, it is far from clear that a similar passion for accuracy applies in respect of material that is unlikely to have legal ramifications if it is wrong. This issue is considered in more detail further on in the report.276 Once again, the Max Mosley story provides an admirable example of this issue. Mr Thurlbeck was criticised in Mr Justice Eadys judgment in relation to the preparation of a statement by the woman who provided the information about the party. Mr Thurlbeck had prepared a statement for her to sign, drawn from the many conversations she had had with him. She signed this statement without amendments but Mr Thurlbeck later amended it himself, without seeking a further signature from the woman, and used parts of the amended statement in the story. Mr Justice Eady doubted Mr Thurlbecks evidence on this issue.277 Mr Thurlbeck defended his actions on the grounds that:278 Mr Justice Eady is entitled to his opinion, but my all I would say is this, in defence of this particular story: we were absolutely certain we got the facts right and nobody has come forward to show me that what I said had happened did not happen...
6.16
6.17
F
6.18
Mr Thurlbeck is, of course, entitled personally to disagree with the conclusions of the court, but I repeat that the NoTW chose not to appeal the decision. Amending a signed statement and deploying it as the statement affirmed by the witness without making clear the fact that it had been changed takes a measure of justification; it is further illuminating that, by the time he gave evidence to the Inquiry, Mr Thurlbeck still had not adjusted his approach to issues on which the court had reached clear conclusions. The attribution of stories to individual journalists was another area where a degree of inaccuracy seemed acceptable. Mr Wootton told the Inquiry that:279 Where a desk head wrote a story, it was convention that the article would appear under another reporters name. However, in such circumstances, it could be that the first you knew of the article appearing under your name would be when you opened the paper and read it on a Sunday morning.
6.19
p32, lines 11-19, Dan Wootton, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-6-February-2012.pdf 274 p34, lines 17-18, Dan Wootton, ibid 275 pp35-36, lines 24-2, Dan Wootton, ibid 276 Part F, Chapter 6 277 paras 88-91, http://www.bailii.org/ew/cases/EWHC/QB/2008/1777.html 278 p14, lines 19-25, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-12-December-20111.pdf; 279 p8, para 7.3.4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DanWooton1.pdf
273
532
6.20
Mr Wootton said that although this was standard practice across newspapers, it did not happen very often and was always seen as positive thing for the journalist who was gifted the article.280 Conversely, it was also usual practice to put Mr Woottons byline on his column even on those occasions when it had been written by someone else because he had been away.281
Financial controls
6.21 A key aspect of corporate governance and compliance is financial control. There are three elements to consideration of this issue. First, the understanding of financial delegation and spending limits; secondly, controls on cash; and thirdly, the attitude to claiming of expenses. Spending limits 6.22 The Inquiry has been provided with little specific evidence relating to the financial delegation arrangements at the NoTW, but there is one point that appears worthy of note. Mr Crone told the Inquiry that he had delegated spending authority of 5,000. However, he routinely settled cases for more than 5,000 without any concerns arising, though he would usually consult the editor before doing so.282 Despite the formal 5,000 limit, Mr Crone was unable to give a view on whether he had actual authority to offer a settlement of 150,000, as he had done in the Mr Taylor case:283 I dont know the answer to that, but it certainly wouldnt have been the first time thats probably pretty high, but Id been over 100 a few times and no one had ever said to me afterwards, You didnt have authority to do that, internally. 6.23 This lack of clarity over the financial limits of senior executives within the organisation becomes a matter of serious concern when taken in conjunction with allegations of an attempt to keep more senior management in the dark over important issues. It is certainly arguable that Mr Myler and Mr Crone had no choice other than to raise the Gordon Taylor case with James Murdoch, simply because the cost of settling the case had got beyond what either of them could imagine they had authority to approve. Financial controls are normally set in order to ensure that decisions of a level of importance to an organisation are taken by people in commensurate positions of authority and responsibility. If the delegated authorities are able to be easily breached then the ability of senior management to exercise oversight and governance is obviously reduced. Issues of alleged cover up have been addressed elsewhere.284 Cash payments 6.24 One of the changes made by Mr Myler upon his arrival as editor was the introduction of new controls on cash payments, which required department heads to ensure that payments were legal and legitimate, or real payments to real people for stories that really exist.285 As
p38, lines 8-15, Dan Wootton, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-6-February-2012.pdf 281 p38, lines 23-25, Dan Wootton, ibid 282 p17, lines 4-15, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-14-November-2011.pdf 283 p18, lines 5-9, Tom Crone, ibid 284 In particular in Part E Chapter 4 285 pp25-26, lines 7-20, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-19-December-2011.pdf
280
533
a result of the new policies cash payments fell by around 89% from 2004/5 to 2007/8.286 Mr Myler estimated that the majority of this change was due to a change of staff and processes in the features department.287 This rather startling outcome suggests that, prior to Mr Mylers arrival, there was less than rigorous control of the use of cash. This is not an insignificant issue. Part of the NoTWs explanation as to how Mr Goodman had managed to task Mr Mulcaire without management being aware of what was going on was that he had paid Mulcaire cash outside of an otherwise legitimate contract. Whether or not that was true, the fact that the rules on cash expenses would allow it demonstrates, yet again, a lack of oversight and governance within the organisation that allowed inappropriate, or even illegal, behaviour to go unnoticed and unchecked. Expenses claims Finally on the issue of financial controls I turn to the claiming of expenses. Mr McMullan suggested that in order to bump up salaries staff were given a certain amount of leeway on expense claims. He suggested that he would generally claim between 15,000 and 20,000 of expenses in a year of which only 3,000 was legitimate.288 Mr McMullan further suggested that an expansive approach to expenses was expected, and even encouraged by management.289 This approach to expenses was broadly consistent with the account told by Ms Marshall in her book, Tabloid Girl, where she describes numerous examples of fabricated expense claims. In the book Ms Marshall describes the practices of journalists in relation to expenses as all very definitely illegal290 and justifies such practices on the grounds that they ...sort of made up for all the years of impossible tasks, lousy years and bollockings.291 In her oral evidence Ms Marshall explained that all the specific examples of expense fraud in the book were anecdotal, but that the general attitude in the newsroom was that outrageous expense claims were funny rather than to be frowned on. She pointed out were not ripping off the taxpayer.292 Although she back-tracked from most of the specific examples in the book, this expenses culture was one of the few areas where the basic thrust of Ms Marshalls evidence was consistent across both the book and her evidence to the Inquiry, and on that basis it is reasonable to conclude that it was true. Whilst Ms Marshalls evidence on the culture in respect of expenses was not directed specifically at the NoTW she suggested that this approach was common across all titles she had worked at. It should also be observed that Ms Marshalls general mantra in relation to assertions made in her book, namely that they amounted to topspin, was one I did not find particularly convincing in the context of her evidence as a whole. I allow for an element of exaggeration and gilding of the lily, but have come to the conclusion that her book contained a substantial kernel of truth, and her attempts to backtrack from it were not persuasive. Ms Marshalls evidence was flatly contradicted by Mr Thurlbeck, who said that Mr Kuttner, the managing editor, was a forensic examiner of newspaper expenses. Everything required a receipt and any questionable claims would be returned and an explanation required.293 The
6.25
6.26
6.27
p28, lines 7-18, Colin Myler, ibid p31, lines 9-21, Colin Myler, ibid 288 p98, lines 2-9, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-29-November-2011.pdf 289 p98, lines 12-19, Paul McMullan, ibid 290 Marshall, S, Tabloid Girl, p178 291 ibid, p182 292 pp101-103, lines 10-9, Sharon Marshall, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Transcript-of-Morning-Hearing-20-December-2011.pdf 293 pp25-26, lines 19-1, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Afternoon-Hearing-12-December-20111.pdf
287
286
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deputy editor, Mr Wallis supported Mr Thurlbecks assertions but, if that were the case, it is difficult to see why Mr Myler felt driven to change the system or the dramatic effect of that change.294 Bribery 6.28 Given the current police investigations into bribery of police and public officials, this Report cannot go into any detail on any specific allegations. However, some anecdotal evidence of little evidential value was offered. Mr McMullan said that he was aware of the NoTW paying police officers for information. He gave the Inquiry an example of taking a phone call from a royal bodyguard with information about where Princess Diana would be at a given time, indicating that the source might have been paid as much as 30,000 for such information because of the risks of providing it.295 More significantly, Deputy Assistant Commissioner Akers told the Inquiry that the police had material that identified an ex-NoTW journalist who may have paid police for information. The police have arrested a number of ex-senior managers for authorising and facilitating such payments.296 It is not possible to go further but it seems fair to conclude that there is, at least, a real possibility that there was a culture of payments at the NoTW for information of the type discussed, facilitated or overlooked by management control of financial authorisations.
6.29
Attitude to the PCC

6.30 A key issue in understanding the NoTWs approach to compliance is the attitude to the PCC. In this context I consider the PCC both as a body that enforces the Editors Code and in respect of its two considerations of the phone hacking issue. Taking enforcement of the Code first, I have already set out above that Mr Myler, when he became editor of the NoTW, made it clear that compliance with the law and the PCC code was mandatory, and that disciplinary procedures would follow for failure to comply. However, also as set out above, there is no evidence to show that failure to comply with the Code did result in any disciplinary action. A number of NoTW journalists told the Inquiry that individuals at the newspaper did take the PCC seriously,297 owing to the embarrassment to editors of an adverse adjudication. Specifically, Mr Wallis told the Inquiry 298 We didnt want to fall foul of either legal problems or the PCC. An editor is not going to survive very long if he has a series of legal judgments against him. An editor is not going to survive very long if he has a series of PCC adjudications against him. It costs money.
6.31
6.32
pp95-96, lines 20-11, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-12-December-20111.pdf 295 pp72-73, lines 17-17, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Afternoon-Hearing-29-November-2011.pdf 296 pp44-45, lines 22-5, Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/lev270212am.pdf 297 p18, lines 16-20, Mazher Mahmood, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Morning-Hearing-12-December-2011.pdf; p104, lines 3-5, Paul McMullan, http://www.levesoninquiry.org.uk/wpcontent/uploads/2011/11/Transcript-of-Afternoon-Hearing-29-November-2011.pdf 298 p83, lines 6-10, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-12-December-20111.pdf
294
535
He said that the senior executives constantly made it clear to journalists that they were not interested in the idea of breaking the law, breaching the PCC Code, risking libel claims or spending a lot of money on privacy law battles.299 6.33 It seems a reasonable conclusion from what has been set out in this Chapter that, although the NoTW may have had at all times appropriate policies in place to require journalists to comply with both the Editors Code and the criminal law, and although individual journalists may have considered it important to do so, there was no clear line of accountability for oversight or enforcement of those policies: compliance, if it occurred, was accidental, rather than the consequence of the implementation of sound systems of governance. It is not possible within the confines of Part One of this Inquiry to allocate blame to individuals; neither, however, at this stage is it appropriate to exonerate any one individual at a senior level of responsibility within the corporate hierarchy. It is at least possible that this systematic failure to hold anyone to account for breaches of the Code might have led to a sense among journalists at the NoTW that compliance was not, in fact, particularly highly rated and that breaches of the Code would go unpunished. If breaches of the Code lead to more, or better, stories, then systematic failure to penalise anyone for breaching the Code could be seen as indirect encouragement to do so. The fact that Mr Goodman was dismissed does at least suggest that the company was aware that it needed to appear to the outside world as though it took criminal activity seriously. The terms on which he parted from the company, however, and the discussions that preceded his departure, suggest that this was not altogether the case. The persistent failure of the company properly to investigate Mr Goodmans allegations that methods of unlawful interception were both widely in use and approved by management within the organisation was a significant failure of governance. I have already set out in earlier Sections of the Report the circumstances of the two PCC considerations of phone hacking and the NoTW response. It suffices to say that an organisation which, at the very least, overstated the assurance that it was prepared to provide to its regulatory body (even, or perhaps especially, a self-regulatory body) is not an organisation that takes compliance seriously. It is clear that at no time did it occur to management at the NoTW to seek to drill down to discover precisely what Mr Mulcaire had done for the large amount of money he was paid or to respond openly to the enquiries made by the PCC. The same point can be made about the attitude of NoTW executives to the Select Committee Inquiries.
6.34
F
6.35
Attitude to the courts

6.36 Finally, it is important to consider what the Inquiry has learned about the attitude of journalists and executives at the NoTW to the courts. It is notable that many of the NoTW witnesses, particularly Mr Thurlbeck, have maintained that, regardless of the judgment in the case, the story about Mr Mosley was in the public interest. The lack of respect for the judgment of Mr Justice Eady is perhaps exemplified by the fact that Mr Myler put the story forward for a scoop of the year award.300 Any disappointed litigant is entitled to feel that the judge got it wrong but the evidence gives no sense of re-appraisal of the position in the light of the judgment: there does not appear to have been any detailed reconsideration or point by point
p84, lines 13-18, Neil Wallis, ibid pp55-56, lines 20-23, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-14-November-2011.pdf
300
299
536
rebuttal of the reasoning of the judge, such as might permit senior management to conclude that a review of their approach to issues of the kind generated by the case was unnecessary. 6.37 Similarly, Mr Mahmood refused to accept criticisms of him made by Mr Justice Eady in relation to a story which exposed a plot to kidnap the children of David and Victoria Beckham.301 In such circumstances, it is perhaps unsurprising that Mr Crone testified that his advice to executives about the attitude that a court would be likely to take in any litigation was not always acted upon.302
7. Credibility of witnesses
7.1 NI has raised the point that the NoTW at any one time employed around 152 editorial staff, of whom only three have come forward to make allegations on the record of the issues covered in this Chapter of the Report. In addition, some five anonymous journalists have raised issues of concern about conduct at the NoTW. This is a tiny proportion of those who worked there. I accept this; I also accept that, with some exceptions, others who have given evidence who have worked at the NoTW have tended to disagree with the picture painted by Mr McMullan, Mr Driscoll and Mr Hoare. I have already pointed out that the evidence of these witnesses needs to be viewed with some caution. Furthermore, I am entirely content to accept that large parts of the NoTW, and many of the journalists, operated in a way that no-one has suggested was not entirely appropriate and in accordance with high standards. To some extent, those journalists are also victims having suffered damage to their individual reputations because of what has emerged from the NoTW over the last few years. Having said that, however, for reasons which I have already given I do not consider that the evidence of bad practice to which I have referred can be disregarded. The evidence of these three whistleblowers and of the anonymous journalists in relation both to the use of the dark arts and bullying possesses an internal consistency which provides considerable credibility, but it also coheres with other evidence, including the admissions made by the NoTW in civil proceedings, as well as evidence from victims of unethical press practices. For the purposes of this Report I do not have to take a view on precisely the extent to which any of these witnesses is providing a full and complete picture. Rather, I simply need to satisfy myself that there are cultural and ethical issues here which require addressing in the context of my finding that there is an essential kernel of truth within what each of these witnesses said. It is also the case, as detailed in this Chapter, that even ignoring the evidence of those whom NI submit cannot be relied upon, and focusing only on the evidence of witnesses such as Messrs Myler, Thurlbeck, Edmondson and Crone have given, very serious concerns arise about the governance at the NoTW, the attitude of management and staff to the right to privacy, the attitude of management and staff to the law and the attitude of management to public scrutiny.
7.2
7.3
The consequences
7.4
301
The possible criminal behaviour and its impact on the individuals involved are obviously very serious, but are not for this Report. What is, however, clear is that the financial implications
p51, lines 20-22, Mazher Mahmood, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-12-December-2011.pdf 302 p66, lines 3-15, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-13-December-20111.pdf
537
for NI and ultimately for News Corp have been significant, from the costs of the civil claim settlements, the costs of the closure of the NoTW, including lost revenue, the failure of the BSkyB takeover and the commercial opportunities that that presented, through to the reputational damage done to the image of News Corp across the globe and any ramifications that may have. It may never be possible to quantify those costs, and certainly it is not necessary for me to attempt to do so, but Rupert Murdoch told the Inquiry that the scandal had cost News Corp hundreds of millions.303 7.5 I conclude this Chapter of the Report with setting out the evidence of Mr Murdoch and his overall assessment of the phone hacking issue, both for the light it throws on that issue, and more generally:304 I think the senior executives were all informed, and I were all misinformed and shielded from anything that was going on there, and I do blame one or two people for that, who perhaps I shouldnt name, because for all I know they may be arrested yet, but theres no question in my mind that maybe even the editor, but certainly beyond that someone took charge of a cover-up, which we were victim to and I regret and, you know, Im getting ahead of myself now, perhaps, or getting ahead of you when I say that, you know, we did take steps after the conviction and the resignation of Mr Coulson. A new editor was appointed with specific instructions to find out what was going on. He did, I believe, put in two or three new sort of steps of regulation, if you like, but never reported back that there was more hacking than wed been told. Harbottle & Lewis were appointed, and given a file. Now, its argued that they were only given a very specific brief, but Ive got to say that I have not gone through that whole file that they were given of emails, but I have again tasted them and I cannot understand a law firm reading that and not ringing the chief executive of a company and saying, Hey, youve got some big problems.
p57, lines 19-20, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-26-April-2012.pdf 304 p24, lines 2-25, Rupert Murdoch, ibid
303
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Chapter 5 Some CaSe StudieS

1. Introduction
1.1 The previous Chapter explored the culture, practices and ethics prevailing at the News of the World (NoTW) before its demise. This, and the following Chapter, takes a broader view. They seek to examine the wider evidence submitted to the Inquiry in some detail, with a view to making a general assessment of the culture, practices and ethics of the press, in line with the Terms of Reference. It should be understood that it is not possible or desirable to cover all the evidence submitted to the Inquiry in the Report: some of it will be referred to simply by way of footnotes to the main text; other parts of the evidence will not be mentioned expressly at all. In this Chapter, before proceeding to examine the evidence as a whole,1 I examine in detail a number of individual examples of press reporting in recent years. Some of those examples will be well known to many reading this report and include the reporting of the disappearance of Amanda (Milly) Dowler, the disappearance of Madeleine McCann, the arrest of Christopher Jefferies on suspicion of murder and the publication of details of the medical condition of the former Prime Minister, the Rt Hon Gordon Browns son. The first three of those, at least, were chosen because they exemplified what might be described as the most egregious cases of unethical journalistic conduct. The final examples included in this Chapter are defined by the fact that they are contemporaneous with the Inquiry; they are stories which emerged during the course of, or subsequent to, the formal hearings, and may indicate that the risks identified in the following Chapter cannot be dismissed as historical. They include the Daily Mails attack on Hugh Grants mendacious smears, the press treatment of the family of Sebastian Bowles after his death, and the contrasting approach to the recent stories which impacted on the privacy of two members of the Royal Family. All (except the Royal examples) were subjected to detailed scrutiny during the course of the Inquiry. The theme common to them all, and which therefore merits their generic description as case studies, is their link to the next chapter of the Report containing the wider criticisms of the culture, practices and ethics of the press, and the emergence of patterns. In other words, each case study exemplifies at least one and often several of the attributes of and flaws in the press which have been addressed at length below;2 in this Chapter, however, they are not addressed from the perspective of the criticism but rather from the perspective of the victim, thereby providing some insight into the overall impact of the way in which the relevant story has been reported. Accordingly, the time taken to examine these cases is not for the purpose of levelling specific criticisms against individual titles and journalists (although I recognise that this might be a by-product of the exercise) but for the light they shine on the wider picture. It follows that the analysis of each case study will not be exhaustive; it will merely be sufficient to illuminate and buttress the generic conclusions that I have felt it appropriate to reach.
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What follows in this introductory section is a thumbnail sketch of each of these case studies, as a prelude to the more detailed analysis set out in subsequent chapters. The evidence relating to the reporting of the disappearance of Milly Dowler is examined as the first of these case studies. This Inquiry was set up in the light of the public reaction to the Guardians story published on 4 July 2011 that the voicemail of Milly Dowler was hacked into and tampered with by one or more journalists from the NoTW, such that a number of her voicemail messages were deleted, thereby giving her family false hope in her well being.3 The evidence relating to these allegations will need to be examined, not least because the Guardian later retracted that part of its story that asserted that one or more messages had been deleted. Of equal if not greater importance, however, is that Mr and Mrs Dowler were subjected to intrusive and insensitive press reporting at a time of intense personal distress. Such was the appetite in certain sections of the press to acquire information and photographs which would enable the story to be kept alive as one of ongoing human interest to readers, these sections of the press often overlooked the privacy rights and personal feelings of the Dowler family. Thus, the family came to be treated as little more than a commodity in which the press had an unrestricted interest. The Inquiry also heard at length from Dr Kate and Dr Gerry McCann, who, following the disappearance of their daughter Madeleine in Portugal in May 2007, were the victims of what may only be fairly described as serial defamations in a number of newspapers between September 2007 and January 2008. The McCanns were initially the subject of balanced and sensitive press reporting in the British press: not merely did the story attract the open-hearted sympathy of the public, owing to the way that it resonated on a number of obvious levels, but the parents took a strategic decision at a very early stage to engage with the press in order to avail the search for their daughter. By the summer of 2007, however, what had begun as a sympathetic approach by the press to an ongoing personal tragedy had altered; this change had been prompted by leaks from the Portuguese police to the local and British media representing their version or speculation of what might have happened to Madeleine. Some, but certainly by no means all, sections of the press in the UK decided to run with stories which alleged that the McCanns were in some way responsible for the disappearance of their daughter. One title prided itself in the fact that it was apparently fair minded because on one day it would print a hostile story while the next it would provide a more sympathetic portrayal. The defamatory reporting continued for approximately four months, the principal perpetrator asserting that the public appetite for the story was undiminished. Ultimately, it took the threat and then the reality of libel action to bring this spate of reporting to an end, and the McCanns received substantial damages and a front page apology in settlement of their claims. It was inevitable and entirely in the public interest that there be full reporting of stories about both Milly Dowler and Madeleine McCann. Like the Dowlers, however, the McCanns were also treated as if they were a commodity in which the public, and by extension the press, had an interest or stake that effectively trumped their individual rights to privacy, dignity or basic respect. The press believed that the publics legitimate interest in the story was insatiable, and that belief required it to sustain that interest by following every possible development or turn, however implausible or apparently defamatory. Also like the Dowlers, the McCanns were the victims of grossly intrusive reporting, prying photographers and an ongoing media
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http://www.guardian.co.uk/uk/2011/jul/04/milly-dowler-family-phone-hacking
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Chapter 5 | Some Case Studies
scrum which paid little or no regard to their personal space, their own personal distress and, in particular, the interests of Madeleines younger siblings. 1.11 There are two other aspects of the McCann case study which merits its inclusion as such. First, the PCC did nothing until it was too late, and the reasons for this inactivity need to be explored. Secondly, the NoTW published highly personal extracts from Dr Kate McCanns diary in September 2008 following a telephone conversation between its news editor and the McCanns spokesman, Clarence Mitchell, on 12 September. The Inquiry was provided with a transcript of that conversation at an early stage, but without knowing the full background it was difficult to discern the true purpose of the conversation and what was understood or agreed by or between the participants to it. However, when he came to give evidence, the news editor accepted that Mr Mitchell had been deliberately misled so that it would appear that he had given his consent to the publication of the extracts on behalf of Dr McCann whereas in truth he had not. Another individual who was the victim of unbalanced, prejudicial and wildly inaccurate press reporting was Christopher Jefferies, who was arrested on suspicion of being involved in the murder of Joanna Yeates on 30 December 2010. Mr Jefferies gave evidence to the Inquiry and, notwithstanding the remarkably measured and dispassionate terms in which it was given, testified to a series of egregiously defamatory and unfair articles in a number of national newspapers over the New Year period, which hinted, rumoured, speculated, suggested, or at times indicated that he was the perpetrator. Again, this is a very clear example of injudicious, sensationalised and intemperate reporting which was designed to feed what the newspapers concerned judged to be the curiosity and prurient interest of their readers; this was no doubt, supported by an (entirely erroneous) assessment that the police had got the right man. In the result, the police had not: Mr Jefferies was released, initially on police bail; subsequently, the perpetrator of Ms Yeates murder (who had provided information which purported to implicate Mr Jefferies) was arrested, charged and convicted at a trial which did not challenge responsibility for the killing. Mr Jefferies brought defamation actions against a number of newspapers, and the Attorney General successfully brought contempt proceedings against two. The next case study which will be examined concerns the story published in The Sun in 2006 regarding the illness of one of Mr Browns children. This story is of interest for a number of connected reasons. First, even without disclosing its source so as to permit his or her identification, The Sun has refused to explain how the story was sourced. The second reason concerns the absence of any public interest justification for publishing a story about the health (ie the private life) of a child; and the third is the circumstances in which the paper sought to obtain the consent of Mr and Mrs Brown to its publication. The evidence in this last respect has clear resonances with the evidence of Anne Diamond, the broadcast journalist and presenter, relating to the death of her infant son and her enforced association with The Suns cot death charitable appeal, and the evidence relating to the obtaining of Dr Kate McCanns consent, through a conversation with her agent, to the publication of extracts from her personal diary. There is much that could be discussed about the evidence that actor Hugh Grant provided and he would be the first to say that press treatment of those who have achieved what is called celebrity status should only be considered behind the complaints of people like the Dowlers, the McCanns and Mr Jefferies. He is included as a case study because of a detail in his evidence and the reaction that it provoked. He gave evidence to the Inquiry as to his belief that a story in The Mail on Sunday about an alleged flirtation with a plummy-voiced executive had been obtained by voicemail hacking. Mr Grant accepted that he had no hard evidence to
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support this belief; it was an exercise in speculation (although it might otherwise be described as inference). The day after he had appeared before the Inquiry, on 22 November 2011, the Daily Mail published a piece which accused Mr Grant of making a mendacious smear against the Mail titles. It is of value because it is a good example of the strategy of defensive attack (although the Mail titles argue that the story was entirely justified) which itself represents a strand within the culture of the press. It is also of interest since the relevant evidence grew out of the Inquirys proceedings themselves. 1.15 During the course of the Inquiry, Sebastian Bowles, an 11-year old schoolboy, was tragically killed in a coach crash in Switzerland. Unfortunately, his family was subjected to insensitive and intrusive press reporting which failed to respect their privacy and their grief. The evidence given by the family solicitor, Giles Crown, chimed with evidence given during the course of Module One of the Inquiry, more fully set out and footnoted below. Again, this has been selected by the Inquiry as a case study because it is illustrative of a clear strand within the culture, practices and ethics of the press, as well as shining light on the effectiveness of the PCC. The final Section of this Chapter deals with two significant stories which entered the public domain after the formal Inquiry sessions concluded in July 2012. They relate to the private lives of two members of the Royal Family, Prince Harry and the Duchess of Cambridge. The intrusions in relation to Prince Harry, and the contrast with the approach to the story relating to the Duchess of Cambridge and the ramifications of both, form the basis of an important case study, illustrating as it does a series of generic issues surrounding the approach to clause 3 of the Editors Code and the general provision relating to the public interest; the relevance of publication on the internet; and the overall response (or lack of it) of the Press Complaints Commission (PCC).
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2. the dowlers
2.1 Bob and Sally Dowler fully appreciated that the disappearance of their daughter, Amanda, known as Milly, was a massive news story. From the start, the press was like a double-edged sword:4 as many have pointed out in similar vein, there is often a fine line between the need to engage the press to publicise a predicament or a cause, and the dangers of press intrusion. As Mrs Dowler explained in her witness statement:5 What we did not appreciate was the extent to which the newspapers would intrude on our private turmoil and how little control we would have over where the lines were drawn in this respect. We did not have any experience in dealing with the media and we have to make a lot of difficult choices, without the benefit of professional advice and at an extremely harrowing time in our lives. It felt like a lot of our decisions to engage the press had ramifications beyond those you could logically expect. 2.2 The Dowlers gave examples of two types of media intrusion which, in the light of all the other evidence the Inquiry was subsequently to receive, appear to be commonplace. First, in the months following Millys disappearance, Mr Dowler was frequently door stepped by journalists and photographers looking for a story. In the words of Mrs Dowler:6
pp1-2, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Sally-BobDowler.pdf 5 p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Sally-Bob-Dowler. pdf 6 p3, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Sally-BobDowler.pdf
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Bob would be in the front garden and a reporter would pop up asking a question about the case. In our experience, the journalists rarely started by introducing themselves. They would simply launch into a series of questions about Milly... 2.3 Second, a particularly poignant piece of evidence concerns an occasion when the Dowlers decided to walk home from Walton-on-Thames railway station following the route which Milly habitually took. This was intended to be an intensely private moment. As Mrs Dowler explained to the Inquiry:7 I met Bob and then we just basically quietly retraced her steps and no one was really around, so it was very much like the day shed actually gone missing, and we put out missing leaflets with her photograph and a telephone number on, and that number had been changed, and I was checking the posters to see if the number if the right poster was up, and as I walked along, I was sort of touching the posters. And we walked back to our house, which is maybe three-quarters of a mile, something like that, and that was on the Thursday, and then on the Sunday, that photograph appeared in the News of the World and I can remember seeing it and I was really cross because we didnt see anyone. Theyd obviously taken the picture with some sort of telephoto lens. How on earth did they know we were doing that walk on that day? And it just felt like such an intrusion into a really, really private grief moment, really. 2.4 An article in the NoTW published on 12 May 2002 was headlined, The Longest Walk. The secondary headline was, Face etched with pain, missing Millys mum softly touches a poster of her girl as she and her hubby retrace her last footsteps. Although this doubtless made a story replete with human interest, it is difficult to argue with Mrs Dowlers observation that this was an unjustified intrusion into a moment of private grief. The very language of the article indicates that the NoTW was well aware of the intrusion, but whether the editor or sub-editor gave any thought to whether it might be justified is impossible to know at this distance. If he or she did, the judgment reached was misconceived. One of the questions which the Dowlers asked themselves at the time was how on earth did they know that we were doing that walk on that day?8 There is no evidence that NoTW photographers were carrying out day-to-day surveillance of the Dowlers on the off-chance; had they been doing so, obvious ethical concerns would arise. Another possible inference (as to which I make no finding) is that the NoTW discovered the Dowlers likely whereabouts on the day by listening to a phone message. The Dowlers also gave evidence as to the occasion on which Mrs Dowler gained access to Millys personal voicemail message, having previously only been able to hear the automated message. To the best of their recollection this occurred in April or May 2002 after a visit to the Birdseye building at Walton-on-Thames in order to view some CCTV footage. As Mrs Dowler told the Inquiry:9 we were sitting downstairs in reception and I rang her phone ... And it clicked through onto her voicemail, so I heard her voice, and it was just like I jumped Shes picked
pp12-13, lines 23-10, Sally Dowler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-21-November-2011.pdf 8 p13, lines 7-8, Sally Dowler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-MorningHearing-21-November-2011.pdf 9 p19, lines 14-21, Sally Dowler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-21-November-2011.pdf
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up her voicemails, Bob, shes alive, and I just it was then, really. Look, when we were told about the hacking, that is the first thing I thought. 2.7 At the time Mrs Dowler managed to access her daughters voicemail it is clear from the evidence that emerged during the course of the criminal proceedings that Milly was already dead. The false hope moment, as it came to be described, was generated by the fact that voicemails on the system were deleted, with the consequence that the automated message signifying a full voicemail was replaced by the personal voicemail greeting. In the article published on 4 July 2011 the Guardians account was along the lines that NoTW journalists, or someone acting on their behalf, were responsible for the deletion of these messages. However, the accuracy of this account was questioned in December 2011, and given its obvious importance the Inquiry sought further assistance from the Metropolitan Police Service (MPS) and Surrey Police who undertook a full investigation into what happened. Ultimately, in May 2012 the Inquiry received a witness statement from Detective Chief Inspector John MacDonald, of the MPS, which was read into the record.10 This evidence conclusively established that the Dowlers had visited the Birdseye building shortly after 18:00hrs on 24 March 2002, which was three days after Millys disappearance. The family liaison officers log records:11 At 19:10 hours Mr and Mrs Dowler were taken home by the FLO. Whilst at home, Mrs Dowler rang Millys mobile. The log records that Mrs Dowler became distressed as Millys voicemail was now on the recorded message whereas previously there was a recorded message (automated). 2.10 Although call data subsequently established that the time of Mrs Dowlers call was 18:32hrs (ie over 30 minutes earlier than the FLOs log record, which was completed after the event), it is clear from all the available evidence that the false hope moment occurred during the early evening of 24 March 2002 and not in April or May as the Dowlers had originally believed. They are not to be criticised for this in any way, since at the time of giving their witness statement they were being asked to recall traumatic events occurring nearly a decade beforehand. DCI MacDonalds investigation revealed that Millys last call to her own voicemail was at 17:07hrs on 20 March, and one of Millys friends called her voicemail at 19:46hrs on 21 March and left a message. This was almost certainly the tenth message left on Millys voicemail: at this point, the mailbox was full, and a generic (ie automated) message was left. But, after 72 hours, messages began to be automatically deleted. In the words of DCI MacDonald:12 The phone provider has also confirmed that when the voicemail box was full the automated message would be heard, and once messages had started to drop off, the personal voicemail greeting that Mrs Dowler heard would again have come into effect.
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p10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning-Hearing-9-May-2012. pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-DCI-John-Macdonald.pdf 11 p16, lines 1-6, Robert Jay QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-9-May-2012.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/WitnessStatement-of-DCI-John-Macdonald.pdf 12 p20, lines 6-10, Robert Jay QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-9-May-2012.pdf; p7, para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/ Witness-Statement-of-DCI-John-Macdonald.pdf
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Accordingly, the probable inference is that Mrs Dowlers call was made shortly after one of the previous messages was deleted 72 hours had elapsed between Millys friends call and Mrs Dowlers. There are two additional pieces of evidence which fall to be considered, although on analysis they do not bear on the genesis of the false hope moment. First, on 26 March 2002 there was a voicemail platform migration by the service provider, Mercury one2one. That migration included Millys voicemail. It would have had the effect of resetting Millys personal greeting to an automated voicemail message, which would have remained as such until changed by the owner of the phone. Yet this occurred two days after the key date for present purposes, and could have had no impact on the false hope moment. Second, DCI MacDonald gave evidence that a message left on Millys voicemail at 14:10hrs on 26 March was shown as a saved message when Surrey Police listened to it at 15:25hrs. The issue is complicated by the fact that there were a number of technical matters being carried out on that day by the service provider, but in the words of DCI MacDonald:13 It is not possible to state why the message left at 14:10 hours on 26 March was shown as a saved message when Surrey Police listened to it at 15:25. One possibility is that it was subject to an illegal intercept in that 75 minute period. However we should also consider the lack of a complete set of call data for that time when trying to interpret what happened.
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It is neither necessary nor appropriate for present purposes to delve further into these issues. Unnecessary, because whatever happened on 26 March 2002 can have no logical bearing on Mrs Dowlers state of mind two days earlier, and inappropriate, because the whole issue of possible illegal interception of Millys voicemails is now the subject of criminal proceedings. It is, however, appropriate to make reference to what was said on behalf of the Guardian newspaper on 9 May 2012 immediately after DCI MacDonalds evidence had been read:14 The Guardian story of 4 July 2011 was based on multiple sources and their state of knowledge at the time. Our error, as we acknowledged and corrected last December, was to have written about the cause of the deletions as a fact rather than as the belief of several people involved in the case. We regret that. After five more months of intensive inquiry, the police have found that the passage of time and the loss of evidence means that reaching a definitive conclusion is not and may never be possible.
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It would be otiose for the Inquiry to comment on the Guardians expression of regret, which speaks for itself. Whereas it is true that a definitive conclusion is not possible on the existing state of the evidence, and may never be, the Inquiry does conclude on the lower standard of proof of the balance of probabilities that tampering with or illegal interception of Milly Dowlers voicemail was not the cause of the false hope moment: this resulted from nothing less banal than the automatic deletion of messages in the ordinary course of the workings of the system.
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pp30-31, lines 23-4, Robert Jay QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-9-May-2012.pdf; p16, para 38, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/ Witness-Statement-of-DCI-John-Macdonald.pdf 14 p34, lines 8-17, Gillian Phillips, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-9-May-2012.pdf
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But it remains worthwhile to underline that the essential gravamen of the Guardians original story of 4 July 2011, namely that Milly Dowlers phone was hacked by or on the instructions of journalists employed by the NoTW, was correct, and is now the subject of criminal charges. Surrey Police have submitted detailed evidence to the Inquiry and to the Culture, Media and Sport (CMS) Select Committee bearing on this issue.15 This establishes that shortly before 13 April 2002 NoTW reporters listened to at least four voicemail messages left on Millys phone, one of which (timed at 10:13hrs on 27 March 2002) they had transcribed as follows: Hello Mandy. This is [REDACTED from [REDACTED] recruitment agency. We are ringing because we are starting interviewing today at [REDACTED]. Call back on [REDACTED]. Thanks. Bye.
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The NoTW apparently deduced from this that Milly was still alive and using the name Mandy to seek work in the area where the agency was based. The agency notified Mercia Police that it had received two telephone calls from a woman claiming to be Mrs Dowler (either a hoaxer or a journalist) asking whether Milly was working for them. The agency gave out no information to the caller, but on 13 April 2002 NoTW reporters attended at the premises of the agency in search of further leads. At 12:10hrs on 13 April the joint owner of the agency contacted Surrey Police by telephone, stating: We have had a News of the World reporter... harassing us today. He says that our agency has recruited Milly as an employee, demanding to know what we know and saying that he is working in full co-operation with the police.
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That last assertion was of course untrue. Surrey Police then contacted the NoTW which admitted that it had acquired its information from Millys phone (claiming to have obtained the number and PIN from school children) and confirming that it had a recording of the voicemail message. Later on 13 April the NoTW contacted Surrey Police claiming that it was confident of its sources and that it was intending to print the information it had relayed to the police as a news story. Despite police warnings that the message was probably the work of a hoaxer, the NoTW went into print on Sunday 14 April 2002 with its angle on the story. It is unnecessary for the Inquiry to investigate every aspect of this somewhat convoluted sequence of events, which undoubtedly would have impacted on the police investigation in April 2002. Surrey Police carried out no arrests at the time, but detailed investigations have been conducted pursuant to Operation Weeting. It is sufficient for present purposes to state that the main thrust of the article published in the Guardian on 4 July 2011, that Milly Dowlers voicemail was hacked into by NoTW journalists, was correct. As the Dowlers explained in their witness statement, they received substantial compensation from News International (NI) to mark the egregious conduct of their employees. Even if that conduct did not embrace causing the false hope moment, its characterisation as egregious remains apposite. The Guardians error in relation to the circumstances in which Millys voicemail messages were deleted was significant although, in the light of all the circumstances, had it been couched in more cautious or less certain terms may not have been capable of criticism at all. It certainly did not justify the attack that followed: I am certainly not criticising it or the paper. Nor, as I pointed out on 4 December 2011, does the Guardians error in any way undermine
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http://www.parliament.uk/documents/commons-committees/culture-media-sport/Surrey-Police-to-Chairman-17January-2012.pdf
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the reasons for setting up, or the work of, this Inquiry, despite what some have suggested.16 The fact remains that the NoTW hacked the phone of a dead schoolgirl called Milly Dowler. The revelation of that story rightly shocked the public conscience in a way that other stories of phone hacking may not have, but it also gave momentum to growing calls for light to be shed on an unethical and unlawful practice of which there were literally thousands of victims. In that context, whether or not NoTW journalists had caused the false hope moment is almost irrelevant.
3. Kate and Gerry mcCann

3.1 In his submissions opening Module One of the Inquiry, David Sherborne, Counsel for the Core Participant Victims, described the press treatment of the McCanns as a national scandal: not merely had they suffered the personal tragedy of the abduction of their daughter, they were subjected to a barrage of press reporting which could only be fairly characterised as a diatribe. Clearly, therefore, it is appropriate to take the experience of the McCanns as a case study warranting further examination for the light it throws on the culture, practices and ethics of the press. Their case is also highly illuminating in the context of the action, or rather the inaction, of the PCC.
The McCanns personal perspective

3.2 Madeleine McCann was abducted from a holiday apartment in Praia da Luz, Portugal, on 3 May 2007, shortly before her fourth birthday. Her parents were dining with a number of friends at a tapas bar within the holiday complex and also within sight of the apartment where she was sleeping, together with her younger twin siblings. As Dr Gerry McCanns witness statement makes clear, much has already been written about the details concerning Madeleines disappearance, and no one reading this Report is likely to be unaware of the basic facts. These include the fact that the McCanns are still searching for their daughter. In terms of the chronology, however, it should be noted that on 7 September 2007 the McCanns were accorded the status of arguidos (ie persons of specific interest to the investigation, but not a synonym for an accused) by the Portuguese Policia Judicaria (PJ). This was somewhat of a watershed in terms of the nature and quality of press reporting. Just as the Dowlers had articulated the need to engage with the press in order to gain their assistance and support, the McCanns explained that they had no option but to implement a proactive press strategy: they were in a foreign jurisdiction, and time was of the essence in this, as in all other, child abduction cases. Such were the pressures of press engagement that it was necessary at an early stage to enlist the full-time assistance of a press advisor, Clarence Mitchell; he had been seconded to the Foreign and Commonwealth Office as part of the media liaison at this town. Dr McCann stressed to the Inquiry that the initial experiences of dealing with the press were positive:17 I think for those people who can remember, it was a very unusual scenario, and we got a distinct impression that there was a genuine want to help attitude from the journalists there, and I think also many of the executives who perhaps saw what had happened to us and there was a huge amount of empathy. So I really did feel early on there was a desire to help.
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for example, http://www.dailymail.co.uk/news/article-2073364/Police-reveal-theres-evidence-News-World-deletedMilly-Dowler-voicemails.html 17 p14, lines 7-13, Gerry McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-23-November-2011.pdf
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Unfortunately, these favourable impressions began to dissipate when the McCanns returned home from Portugal. Much has been said by other witnesses about press intrusion and the behaviour, in particular, of paparazzi; the experiences of the McCanns were no different. They had become a news item, a commodity, almost a piece of public property where the publics right to know possessed few, if any, boundaries. As Dr McCann explained:18 When we got back to our home in Rothley, again there were tens of journalists we live in a cul de sac, at the end of it camped outside our house, cameras, helicopter crews following us. We were hemmed in the house for a couple of days before the police moved them to the end of our drive. Q. Then you tell us that photographers were still banging on car windows, even with one or more children in the car; is that right? MRS McCANN19: And they stayed there until December 2007.That was only after we had help to get them removed, but they were there every day, and theyd wait for Gerry to go and they knew Id have to come out of the house at some point with the children. It would be the same photograph every day, wed be in the car, myself and two children, the photographers would either spring out from behind a hedge to get a startled look that they could attach fragile, furious, whatever they wanted to put with the headline, but there were several occasions where they would bang on the windows, sometimes with the camera lenses, and Amelie said to me several times, Mummy, Im scared.
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In answer to the suggestion that the positive decision made by the McCanns to engage with the press in order to serve their own interests effectively meant that they had waived their rights to privacy and everything else, Dr McCann said this:20 Well, it has been argued on many occasions that by engaging then it was more or less open season, and I think its crass and insensitive to suggest that by engaging with a view to trying to find your daughter, that the press can write whatever they want about you without punishment.
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Dr McCann was not of course suggesting that the press was obliged to write about him only on his terms rather than on theirs. However, the point he was making was entirely valid; a decision to engage with the press does not make a private person public property for virtually all purposes, still less does it begin to justify defamatory reporting. The protracted spate of defamatory reporting commenced in September 2007 and had to be endured by the McCanns over four torrid months ending in January 2008. It only stopped after the McCanns were driven to take legal action against the worst perpetrators. It is well known that British newspapers were relying on reports in Portuguese journals and other sources which were either associated with, close to, or directly part of the PJ. But, as the McCanns themselves explained, the British press often did not know the source; or did not know whether it was accurate, exaggerated or downright untruthful; or (as the McCanns believed) sometimes made up.21
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18
pp27-28, lines 6-3, Gerry McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-23-November-2011.pdf 19 there is an error in the transcript. This should of course read Dr G. McCann 20 p19, lines 17-22, Gerry McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-23-November-2011.pdf 21 pp16-17, lines 23-1, Gerry McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-23-November-2011.pdf
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3.8
A number of titles were guilty of gross libels of the McCanns and of serious and total failure to apply anything approaching the standards to which each has said they aspire.22 For that reason, the nature of the errors perpetrated by certain sections of the press will be explored, but at this stage it is sufficient to make the observation that, aside from the gross inaccuracy of the reporting in issue, some of it was, to put it bluntly, outrageous. One particular piece in the Daily Star published on 26 November 2007 certainly justifies being so described and Dr McCann was moved to go yet further:23 Q. Maddie sold by hard-up McCanns. This is the article you do refer to, the selling into white slavery allegation. Probably you dont want to dignify that with a comment? A. Thats nothing short of disgusting. MRS McCANN: I think this same journalist, if memory serves right, also said we stored her body in a freezer. I mean, we just ... LORD JUSTICE LEVESON: Just to make the comment, theres absolutely no source for that assertion in the article.
3.9
In January 2008, letters before action were sent to a number of newspapers. The first response came from Northern & Shell, on behalf of the Daily Express, on 7 February. According to Dr McCann, the Express rejected the complaint on the straightforward ground that the McCanns were arguidos, but the paper suggested that they do an interview with OK! magazine; this was an offer which was rightly (and without any exaggeration) characterised by Dr McCann as rather breathtaking.24 It did not take very long, however, for Northern & Shell to modify their position and, on 19 March 2008, a statement was read out in open court in which liability was admitted. The settlement also involved the making of a substantial payment into the Madeleine fund and the printing of an apology on the front page of the Daily Express and the Daily Star.25 The apology correctly pointed out that it is difficult to conceive of a more serious allegation. It also correctly recognised that there is no evidence whatsoever to suggest that Mr and Mrs McCann were responsible for the death of their daughter, they were involved in any cover up and there was no basis for Express Newspapers to allege otherwise. Given this admission, it is difficult to understand why the defamatory articles ever saw the light of day in the first place. It should also be mentioned that others involved at the periphery of the McCann tragedy were the subject of defamatory reporting which led to substantial libel settlements. Mr Robert Murat was wrongly accused of being involved in some way in the abduction and was traduced in the British press; and the friends of the McCanns who had dined with them
3.10
3.11
p13, paras 78-80, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-GeraldPatrick-McCann.pdf; In July 2008 proceedings were commenced against Associated Newspapers Ltd in respect of 67 articles published in the Daily Mail and the Evening Standard over a five month period, as well as over 18 articles on the latters website. These proceedings were compromised by the payment of a substantial donation to the Madeleine search fund and the publication of an apology in the Evening Standard. The Daily Mail were willing to publish a number of free adverts to aid the search, but refused to publish any apology, claiming that the supportive articles they had written counter-balanced the others. As Dr McCann explained, by that stage he did not wish to embark on a protracted dispute with the newspaper, particularly given the need to maintain good relations with the press in continuing to publicise the search for Madeleine 23 p37, lines 3-16, Gerry McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-23-November-2011.pdf 24 p38, line 23, Gerry McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-23-November-2011.pdf 25 pp39-40, lines 22-1, Robert Jay QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-23-November-2011.pdf
22
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on the evening of Madeleines abduction were falsely accused of being implicated in a cover up. 3.12 If ever there were an example of a story which ran totally out of control, this is one. The appetite for news became insatiable, and once the original story had run its course the desire to find new leads and angles began to take over, with their corollary tendencies of sensationalism and scandal. Not merely was the rigorous search for the truth the first principle to be sacrificed but also was any respect for the dignity, privacy and wellbeing of the McCanns. Sections of the press have suggested that this was very much a one off and scarcely illustrative of their culture, practices and ethics. But all the material evidenced below26 indicates that this is not the case: although the treatment of the McCanns may very well be one of the most egregious examples, the inquiry heard examples of similar practices from numerous witnesses. As paragraph 373 of the CMS Select Committees Second Report, dated 9 February 2010, makes clear:27 The newspaper industrys assertion that the McCann case is a one-off event shows that it is in denial about the scale and gravity of what went wrong, and about the need to learn from those mistakes.
3.13
The press perspective
3.14
The Inquiry heard from two of the Daily Express journalists involved in reporting the McCann story. No criticism is made or to be inferred of them, because it was not their decision to run with the story generally or to publish any specific or individual pieces. For present purposes it is necessary to draw attention only to a short extract from the witness statement of one of the journalists:28 Although I was confident of the veracity of the reports I was writing, due to the secrecy of justice laws they were impossible to prove, to any satisfactory legal standard, at that time...Due to the restrictions of the Portuguese law, anyone who was unhappy about something that had been written or said about them and wished to take action would almost certainly have been successful. As a journalist this is a wholly unsatisfactory position which, in my view, leaves news organisations at the mercy of potential litigants. They simply are unable to defend themselves.
3.15
The witness elaborated on this in oral evidence, and stated that he was certain that there were conversations between the news desk and lawyers about this. He continued: and that was the situation we were in and there was no way round it.29 This reveals much about the culture, practices and ethics of the press. The journalist made it sound as if his newspaper was in the metaphorical cleft stick but, even on cursory analysis, this was not the case. There was no imperative to continue to report on the McCanns, still less to tell this particular story unless, of course, it is accepted that there was overwhelming pressure, both commercial and otherwise, to tell it. The news desk recognised that if the story were told on the basis of the
26 27
Part F, Chapter 6 http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/362i.pdf 28 p4, paras 22-23, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-DavidPilditch.pdf 29 p62, lines 16-22, David Pilditch, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-21-December-20111.pdf
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unconfirmed reports coming out of Portugal, then anyone who was unhappy would have had a close to cast-iron claim. 3.16 It is of interest that the journalist could not bring himself to mention the McCanns by name; they, after all, would be the prime candidates for being unhappy about the story. By then, they had become almost depersonalised, a commodity. Further, the newspaper decided to publish in the face of the concerns they had identified, placing themselves at the mercy of potential litigants. Again, the McCanns are not mentioned by name and the newspaper is close to being placed in the role of victim. As the journalist put it, they [the newspaper] simply are unable to defend themselves. One might have thought that the more sensible response to this assessment, rather than bemoaning the apparent unfairness of being placed in an impossible position, would have been the prudent course of not publishing stories which not only could they not prove, but for which they had not a scintilla of evidence. Behind the scenes briefings by police officers, themselves under pressure and constrained by Portuguese law which were passed through third and fourth parties, could hardly be thought to constitute any, let alone a sound, basis for publishing such allegations as truth. These issues were taken up with the editor of the Daily Express at the relevant time, Peter Hill. He frankly accepted that running the McCann story was very high risk,30 given all the factors identified by his journalists. When asked to explain why he chose to publish in those circumstances, Mr Hill explained:31 Because this was an unprecedented story that in my years of experience I cant remember the like. There was an enormous clamour for information and there was enormous there was an enormous push for information. It was an international story, on an enormous scale, and there had not been a story involving individuals, as opposed to huge events, like that in my experience and it was not a story that you could ignore and you simply had to try to cover it as best you could. 3.18 But covering it as best you could meant running a story in circumstances where there was a high chance that it was untrue and, in any event, was utterly unprovable. Mr Hill accepted the very high risk,32 and felt driven to publish anyway, placing him and his paper in ethical difficulties in the context of clause 1 of the Editors Code and legal difficulties with the law of defamation. His answer also betrays a curious form of logic: if, as was probable, the particular story was untrue, then it both could and should have been rejected. A different, truthful and, by definition, better story should have been written based on the research that the journalists could undertake that generated facts that could be proved. Covering it as best you could did not mean throwing caution to the winds. Mr Hill was also asked whether the interests of the McCanns were taken into account. He was adamant that they were:33 Of course. We published many, many, many, many stories of all kinds about the McCanns, many stories that were deeply sympathetic to them, some which were not
3.17
3.19
30
p20, line 6, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-AfternoonHearing-12-January-2012.pdf 31 p20, line 9-17, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-AfternoonHearing-12-January-2012.pdf 32 pp83-84, Dawn Neeson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-MorningHearing-12-January-2012.pdf; 33 pp20-21, lines 25-2, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-12-January-2012.pdf
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3.20
Unfortunately, Mr Hills answer betrays a similar curious form of logic: the deeply sympathetic stories on this approach should be regarded as being capable of being weighed in the balance in some way against the stories which were not, these being the stories which, as was put to Mr Hill, accused the McCanns of killing their child. His answer to that proposition was that the stories he ran were only repeating the accusations of the Portuguese police.34 The self same logic underpinned the evidence of the proprietor of Express Newspapers, Richard Desmond, when he was asked about this topic. Mr Desmond said this:35 Im not trying to win points here, because we did do wrong, but I could say there were more, if there were 102 articles on the McCanns, there were 38 bad ones, then one would say and Im not trying to justify, please, Im not trying to justify anything, but you could argue there were 65 or 70 good ones.
3.21
3.22
Notwithstanding the language deployed, this was an attempt by Mr Desmond to expiate, or at the very least to mitigate, his companys conduct, which simply fails to recognise that it is completely misconceived.36 It is additionally unfortunate that further questions revealed that Mr Desmonds apology was not entirely unqualified:37 and once again I do apologise to the McCanns, you know, et cetera, et cetera, et cetera, but there are views on there are views on the McCanns of what happened. And there are still views on the McCanns of what happened...What I think is free speech is very important and if we get any more regulation I mean, what are we trying to do in this country? Are we trying to kill the whole country with every bit of legislation and every bit of nonsense?
F
3.23
This was another revealing answer, since by it Mr Desmond revealed what I consider to be a very disturbing philosophical approach to the concepts of free speech and a free press. For him, at the end of the day, the issue was all about free speech and the threat of excessive regulation. On this approach, press standards and ethics were close to being irrelevant. Mr Desmond had made that clear towards the start of his evidence, when he disputed that ethical lines could be drawn.38 Finally, it should be noted in this context that Mr Desmond was inclined to blame the PCC for failing to give his paper guidance39 rather than accept that his editor should accept at least some responsibility. The PCC should have done more, but Express Newspapers could not reasonably infer from the PCCs inaction that their action was ethical. Mr Desmond, like his Finance Director Paul Ashford,40 also blamed the PCC for acting hypocritically by criticising Mr Hill after the event, particularly in circumstances where Express Newspapers had behaved no differently from anyone else. There is merit in the argument that an even-handed regulator should have taken
3.24
p21, lines 13-15, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-12-January-2012.pdf 35 p84, lines 18-23, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-12-January-2012.pdf 36 pp88-89, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-12-January-2012.pdf 37 p86, lines 3-19, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-12-January-2012.pdf 38 p64, lines 5-18, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-12-January-2012.pdf 39 p77, lines 15-17, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-12-January-2012.pdf 40 pp39-40, lines 15-5, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Afternoon-Hearing-12-January-2012.pdf
34
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everyone to task and there is force in the point that criticism of the approach of the press generally could and should have gone wider, but this is not an allegation of hypocrisy: the PCC were not applauding the conduct of other titles while condemning the Express (which demonstrated the most egregious failings); they were simply using emotive language borne out of a degree of anger to condemn the Express and saying nothing about others.41 3.25 On the other hand, the real point is that a regulator, acting in the interests of the public, while respecting free speech, should have taken much firmer action in relation to the way in which this story was reported, even though the titles affected would have found unpalatable the criticism that they should have faced. That the PCC did too little too late is not a complaint which it lies in Mr Desmonds mouth to make. One of Mr Hills journalists had said in evidence that his editor was obsessed with the story. Mr Hill rejected that description of his state of mind,42 although in explaining his motives and reasons for persevering over so many months, his revealing answer was as follows:43 Ive already explained to you the basis for that decision, which had gone all the way back to my time on the Daily Star when I had realised that it was that the readers were more the readers continued to be interested in the stories far longer than the journalists, and it was my policy to continue the stories and I followed it with many different stories. It started with Big Brother, it went on to Princess Diana, various other things, and that had always been my policy. It was nothing to do with an obsession, it was more to do with a method of working. 3.27 In other words, Mr Hills method of working tended to discern little or no difference between Big Brother and the McCanns: this was all about similar commodities and what he believed his readers were interested in. The obvious potential link between what Express readers were apparently interested in and circulation figures was one which the Inquiry explored, but in the end it was not possible to reach any firm conclusions. Mr Hill testified that he believed that circulation went up as a result of the McCann stories and that this was a factor in his persisting with them.44 He himself viewed the circulation figures and came to that empirical conclusion. However, the Inquirys examination of the data did not disclose any clearly discernible patterns.45 Overall the justifications advanced by Messrs Hill and Desmond for the frankly appalling treatment of the McCanns were, as has been clearly demonstrated, both self-serving and without foundation.
3.26
3.28
The PCCs response

3.29
41
Two days after Madeleines disappearance, the PCC contacted the British Embassy in Lisbon and asked the consular service to inform the McCanns that the services of the PCC were
pp91-92, lines 23-5, Sir Christopher Meyer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-31-January-2012.pdf 42 p26, lines 2-6, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-AfternoonHearing-12-January-2012.pdf 43 p26, lines 12-23, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-12-January-2012.pdf 44 p24 passim, p25, lines 18-23, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Afternoon-Hearing-12-January-2012.pdf 45 Exhibit PWH3 to the witness statement of Peter Hill (which included circulation figures for the Daily Express between 1 January 2007 and 4 January 2009) was provided to the Inquiry on a confidential basis. It has not been published as it includes commercially sensitive data
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available to them. Dr Gerry McCanns evidence was that he was unaware of this until 2009 when he gave evidence before the CMS Select Committee. He told that Committee that he did not recall receiving such a message but, had he done so, it would have been lost in all the other information the family was bombarded with at the time.46 3.30 Dr McCann accepted that the PCC had been extremely helpful in dealing with the unwanted intrusion into the privacy of the twins.47 The PCC intervened to contact editors and broadcasters reminding them of the Code and, thus, not to take photographs or similar images of the children; this practice stopped.48 The PCC was also helpful in removing photographers from outside the McCanns driveway, although this was only after what we felt was a very long period.49 A meeting took place between Dr McCann and Sir Christopher Meyer, former PCC Chairman, on 13 July 2007. There is no dispute between them as to what was said. Sir Christophers evidence was that he explained to Dr McCann, at a time when there had only been one complaint to the PCC against a newspaper and that was not proceeded with, that he effectively had a choice: either he could complain to the PCC, or he could take legal action, but he could not pursue both courses simultaneously.50 When asked what the PCC did for the McCanns over the most distressing period, which was between September 2007 and January 2008, Sir Christopher said this:51 We were in pretty close contact with the press handlers of the McCanns. By that time, it was as gentleman called Clarence Mitchell, who I think may have appeared before you, and we stood ready to intervene if they wanted it. We come again to the question of the first party. You see, you cant be more royalist than the king on these matters. You cannot wish to stop something more ardently than the first party. But by that time, I think they had chosen to go to law. I cant say exactly, because its not for me to say, when they first hired Carter Ruck. So its not as if we were sitting there... 3.32 This was a roundabout way of saying that the PCC did nothing. True, the PCC was on hand if the McCanns had not decided to litigate, but they should not have been presented with such a choice. Given the options which Sir Christopher had himself explained to Dr McCann, and given the scale of the defamatory treatment to which he and his wife had been subjected, this was a classic case of Hobsons choice. Further, as Dr McCann himself pointed out, it was invidious that he and his wife were being asked to contemplate bringing a complaint against a body on which the editor of the Daily Express sat. A regulator of press standards, worthy of that name, would not have left the McCanns in such a predicament at the time of their maximum distress. Either the McCanns should not have been presented with mutually incompatible alternatives and given the option of pursuing both, or the PCC should have been more royalist than the king (to quote Sir Christopher) and taken unilateral action. Sir Christopher took the editor of the Daily Express to task for his conduct on the very day that the McCanns libel action was settled. This was too little, too late, and even after the facts had been conclusively established (by admission) the PCC took no formal action. As the CMS
3.31
3.33
para 354, http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/362i.pdf paragraph 3.4 above 48 p17, para 103, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-GeraldPatrick-McCann.pdf 49 para 356, http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/362i.pdf 50 pp84-87, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning-Hearing-31January-2012.pdf 51 p85, lines 3-15, Sir Christopher Meyer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-31-January-2012.pdf
47
46
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Select Committee correctly pointed out, and as will be discussed in more detail below,52 the PCC was empowered under its Articles of Association to launch an inquiry in the absence of a complaint. The McCann case ought to have been visualised as a prime candidate for such a course of action. 3.34 The Inquiry cannot improve on the conclusions of the CMS Select Committee in February 2010 when reviewing the McCann case:53 374. In any other industry suffering such a collective breakdown as for example in the banking sector now any regulator worth its salt would have instigated an enquiry. The press, indeed, would have been clamouring for it to do so. It is an indictment on the PCCs record, that it signally failed to do so. 375. The industrys words and actions suggest a desire to bury the affair without confronting its serious implications a kind of avoidance which newspapers would criticise mercilessly, and rightly, if it occurred in any other part of society. The PCC, by failing to take firm action, let slip an opportunity to prevent or at least mitigate some of the most damaging aspects of this episode, and in doing so lent credence to the view that it lacks teeth and is slow to challenge the newspaper industry.
The Kate McCann Diaries

3.35 Dr Kate McCann had kept a personal diary recording her innermost thoughts and feelings following the disappearance of her daughter. It was intensely private, and she did not share its contents even with her husband. The diary was seized by the PJ in August 2007 pursuant to its investigations, but the Portuguese court ordered its return to Dr McCann, as well as the destruction of all copies in its possession. The PJ had translated the diary into Portuguese and unfortunately one of the copies of the translated version found its way into the hands of a Portuguese journalist. A former NoTW journalist told the Inquiry how a copy of the diary was acquired by the paper on payment of a substantial sum and then translated back into English. As Dr McCann pointed out in her evidence, the re-translated text did not completely match the wording of the actual diaries, but this is a minor point when set against the scale of the violation to her privacy which came to be perpetrated. The journalists understanding was that the news editor, Ian Edmondson, would confirm with the McCann press spokesperson that the diary was genuine, and would obtain his consent to publish extracts from the diary. However, his written and oral evidence about these matters was somewhat vague,54 not because he was seeking to mislead the Inquiry in any way but for reasons which will soon become apparent. One piece of evidence given by the journalist was particularly revealing:55 But I think in terms of considering it being appropriate to publish Mrs McCanns diary and the obvious considerations over privacy, the view taken by senior executives was that there were all sorts of false allegations being made about the McCanns and they
52 53
3.36
3.37
3.38
Part J http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/362i.pdf 54 Daniel Sanderson, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing15-December-20111.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-ofDaniel-Sanderson.pdf 55 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Daniel-Sanderson.pdf
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really were being pilloried in the press, that this account gave a true picture of the McCanns and dispelled some of the lies being written about them In other words, the predominant consideration was not concerns about the McCanns privacy but rather the newspapers own evaluation that this was a sympathetic story which placed them in a good light and was above all else true. This is exactly the same sort of reasoning process which the Inquiry has so often noted in its review of the critical material below.56 3.39 Colin Myler, the editor of the NoTW at the time, was asked about these matters. He had had previous dealings with the McCanns and had, for example, berated Dr Gerry McCann for doing an interview with Hello! Magazine in preference to the NoTW.57 His version of events was that his news editor, Ian Edmondson, obtained consent to the publication of extracts from the diaries from Mr Mitchell:58 Q. But the obvious question, Mr Myler, is this: why did you not telephone either of the McCanns and find out whether they consented? A. Because Ian Edmondson had assured me on more than one occasion that Clarence was aware of what we were intending to do and had said, Good. I think it was very clear from Mr Edmondsons point of view how hed spelt out what he was doing, and indeed I stressed very clearly by using the phrase that I did not want Kate to come out of church on Sunday morning and find that the diaries were there without her knowledge.
Q. But you were of course aware that if Dr Kate McCann had not given her consent to the publication of this personal diary, she would be outraged by the publication. You were aware of that, werent you? A. I wouldnt have published if Id thought that she hadnt been made aware of it. Q. And Mr Edmondson was telling you that hed obtained consent on what day? A. Well, it was absolutely clear from the Friday to the Saturday that that assurance had been given to him and given again to me. Q. It was going to be a front page story, wasnt it? 3.40 Mr Edmondsons account differed from Mr Mylers. He explained that he tape-recorded his telephone conversation with Mr Mitchell without the latters knowledge in the interests of accuracy, although he accepted that this entailed an element of misleading his interlocutor.59 Mr Edmondson was asked to state whether he made it clear to Mr Mitchell that it was the intention of the NoTW to publish extracts from the diary verbatim. It is worth setting out his answer in full:60 A. I didnt make it clear. Q. And you say because you were given express instructions by Mr Myler?
56 57
Part F, Chapter 6 p14, para 84, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Gerald-PatrickMcCann.pdf 58 pp87-88, lines 12-9, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-14-December-2011.pdf 59 pp65-66, lines 20-4, Ian Edmondson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-9-February-2012.pdf 60 pp67-68, lines 8-22, Ian Edmondson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-9-February-2012.pdf
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A. Correct. Q. When did he give you those instructions? Can you recall? A. From memory, at a meeting on Thursday of that week. Q. Why did he give you those instructions? A. I attended a meeting with Mr Myler and Tom Crone where we discussed this story. I think we got the story to a point where I was prepared to present it to Tom and Colin, the editor. Colin gave sorry, I beg your pardon, Tom gave his legal view, which Im told Im not allowed to repeat, but which dismayed, shall I say, Mr Myler. So he decided to ask me to make a call to Mr Mitchell, not make it clear what we had, tell him in general terms, basically make it very woolly. I think someone previously used the word ambiguous, and that is absolutely spot on what he wanted. Q. So the preferred outcome for the end point of the conversation with Mr Mitchell would be what? A. To give him the impression that we were running a story but not tell him specifically what story, certainly dont tell him that we were in possession of the complete diaries, as we understood. There had been extracts in the diaries of the diaries in Portuguese papers which had been translated into the English papers, but certainly not to the extent that we had. He was frightened that if Clarence knew what we had, he might take action. Q. Well, he would do was the fear that he would, at the very least, tell his clients, the McCanns, what was going on? A. Correct. Q. And they would certainly get back to Mr Myler by phone? A. Correct. Q. Or make an application for an injunction to stop the News of the World publishing? Is that what it amount to? A. Thats exactly what it would. 3.41 This was devastating evidence. It would be remarkable if Mr Edmondson was seeking to mislead the Inquiry regarding Mr Mitchell being given a woolly or an ambiguous account of the newspapers intentions: it was a frank admission of unethical conduct and fits the transcript of the conversation. Mr Edmondsons version of events was not available when Mr Myler testified some eight weeks previously, but it has since been put to him for comment. It is inherently more probable that Mr Edmondson would have been acting on instructions with regard to an issue of this nature rather than making the executive decision himself. In any event, the frankness and precision of his evidence on this issue, including his reference to Tom Crone and legal advice, renders it more likely than not61 that his account is correct. Regardless of issues of individual responsibility, this case study is particularly illuminating for this reason. Read in isolation and out of context, it could be said that the transcript is somewhat ambiguous so that it could be deployed in support of a contention that, in some way, Mr Mitchell consented on behalf of the McCanns to the publication of extracts from the diaries. Thus, it was regarded by the paper as important to obtain written evidence which could be used if necessary to justify what happened. Read in the context of Mr Edmondsons explanation, however, the position is crystal clear. It is equally clear that deliberate decisions
3.42
61
para 2.54,Part F, Chapter 4
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were made within the NoTW to obtain this evidence by obfuscatory tactics and to deploy to their advantage the fact that a conversation of sorts had occurred should the need subsequently arise. In the result, there was a letter before action, and the matter was settled without the necessity of its ventilation in court. 3.43 3.44 But the impact on Dr Kate McCann in particular was traumatic. As Dr Gerry McCann explained in his witness statement, Kate was distraught and morally raped.62 What the McCanns did not make explicit when giving their evidence, but was or ought to have been entirely obvious to any empathetic observer, is that the conduct of the press as highlighted in this section of the Report served only to magnify and compound their distress and upset consequent upon the abduction of their daughter. Overall, it is impossible to disagree with Professor Brian Cathcart, professor of journalism at Kingston University, and his pithy and trenchant assessment:63 I draw the analogy with, you know, other areas of life. If theres a railway accident, there is an inquiry and lessons are learned. In the press, I was very influenced by observing the McCann case develop over month after month after month like a slow motion crash, and yet there was no introspection in the industry afterwards. The damages were paid, the books were closed, and they moved on. That is not you know, we wouldnt accept in the railway industry or in, for example, a hospital, we wouldnt accept that nobody went back and assessed what had happened and tried to identify how things could be changed to prevent it happening again. So I think a mechanism a regulator who is prepared to go in and do that is essential.
3.45
4. Christopher Jefferies
Introduction
4.1 Joanna Yeates was the tenant of Christopher Jefferies who owned a number of flats in the Clifton area of Bristol. Mr Jefferies is a retired English teacher, having enjoyed a long and distinguished career at Clifton College between 1967 and 2001. On 19 December 2010 Ms Yeates partner, who had been away for the weekend, reported her as missing to the police. On Christmas Day her body was found at the edge of a quarry three miles away; she had been strangled to death. The Avon and Somerset Constabulary opened a large-scale murder investigation and press interest in the story was, understandably, massive. Unsurprisingly, given that he was the victims landlord, Mr Jefferies was invited to assist the police with their inquiries, and he voluntarily provided two witness statements. Totally out of the blue as far as he was concerned, at about 7am on 30 December 2010 Mr Jefferies was arrested by officers of Avon and Somerset Constabulary and then taken into custody for questioning. This lasted for three days, whereupon Mr Jefferies was released on police bail. On 22 January 2011 Vincent Tabak was arrested on suspicion of murder, and he was formally charged the following day. For reasons which it is unnecessary to address here, Mr Jefferies bail conditions were not formally lifted until 4 March 2011. Tabak pleaded guilty to the manslaughter of Ms Yeates on 5 May and, as is well known, he was convicted of Ms Yeates murder on 28 October 2011.
4.2
p14, para 86, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Gerald-PatrickMcCann.pdf 63 pp73-74, lines 23-12, Professor Brian Cathcart, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Transcript-of-Morning-Hearing-8-December-20111.pdf
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Press reporting while Christopher Jefferies was in custody

4.3 From the moment he was arrested on 30 December 2010, any publication in relation to Mr Jefferies was subject to the strict liability rule set out in section 2(2) of the Contempt of Court Act 1981: in other words, it would be a contempt of court for any publication to create a substantial risk that the course of justice in the proceedings in question (commenced by the fact of the arrest) would be seriously impeded or prejudiced. This placed significant constraints on the nature and scope of subsequent press reporting. The issue was not simply one of balance; a newspaper could be in contempt by virtue of publishing one prejudicial article, even if the same newspaper published many favourable ones. It is noteworthy that on 31 December 2010 the Attorney General, having seen the first wave of reporting in certain sections of the press, felt compelled to issue a public statement to editors warning them of the need to comply with the 1981 Act. Additionally, there were the limitations imposed by clause 1 of the Editors Code and the general law of defamation. The most damaging articles appeared in the press between 31 December 2010 and 2 January 2011. Mr Jefferies own characterisation of this material was that it amounted to a frenzied campaign to blacken my character, and contained the wildest flights of fantasy. As he put the matter in his witness statement:64 I can see now that, following my arrest, the national media shamelessly vilified me. The UK press set about what can only be described as a witch-hunt. It was clear that the tabloid press had decided that I was guilty of Ms Yeates murder and seemed determined to persuade the public of my guilt... by publishing a series of very serious allegations about me which were completely untrue, allegations which were a mixture of smear, innuendo and complete fiction. I have been told by friends and family that while I was in custody extraordinary efforts were made by the media to contact anyone who may have had any knowledge about me, including friends from schooldays whom I had not seen for some considerable time, and former pupils. The tabloid press undertook what was quite simply gratuitous dirt-digging 4.5 Mr Jefferies gave evidence about what he called the eight worst offending articles which were published in six separate newspapers over a three day period.65 Three of these featured in contempt of court proceedings brought by the Attorney General in July 2011, which was after it had been conclusively established that Mr Jefferies could not have been the killer. In the result, News Group Newspapers (NGN) Ltd was fined 18,000 in respect of an article published in The Sun on 1 January 2011, and Mirror Group Newspapers (MGN) Ltd was fined 50,000 in relation to articles published in the Daily Mirror on 31 December 2010 and 1 January 2011 respectively. It is unnecessary to dwell on the language and tone of the offending articles. It is sufficient to draw on their characterisation by the Lord Chief Justice in the contempt proceedings. As for the article published in The Sun on 1 January 2011, Lord Judge said:66 The articles in the one issue of The Sun were written and laid out in such a way that they would have conveyed to the reader of the front page and the two inside pages over which the stories were spread that he was a stalker, with an obsession with death, who let himself into the flats of other occupants of the building where
64
4.4
4.6
p4, paras 20-21, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-ofChristopher-Jefferies.pdf 65 p5, para 25, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-ChristopherJefferies.pdf 66 para 37, http://www.bailii.org/ew/cases/EWHC/Admin/2011/2074.html
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Miss Yeates lived, and that he had an unhealthy interest in blonde young women. ... Although the articles contain statements or words which could be said to have been favourable to Mr Jefferies, these were quite insufficient to counter the way in which the spread of the articles, and their content, associated Mr Jefferies with this murder. These articles would have certainly justified an abuse of process argument, and although their effect is not as grave as that of two series of articles contained in the Mirror, the vilification of Mr Jefferies created a very serious risk that the preparation of his defence would be damaged... 4.7 And as for the articles published in the Daily Mirror on 31 December 2010 and 1 January 2011, he went on:67 The material in the two publications of the Daily Mirror is extreme. True, it does not positively assert that Mr Jefferies was guilty of involvement in paedophile crimes, or the unsolved murdered many years earlier. It is submitted that the articles were unflattering, suggesting that he was an eccentric loner. So they were. But they went very much further. It was asserted, in effect directly, that his standard of behaviour, so far as sexual matters were concerned was unacceptable, and he was linked to both the paedophile offences and the much earlier murder offence. That indeed was the point of the articles. The juxtaposition of the photographs of two murdered women, together with the layout of the places where they died in proximity to Mr Jefferies home, was stark. And in the context of the murder of Miss Yeates herself, the second article implied that Mr Jefferies was in a particularly convenient position, as her landlord, to have gained access to her premises to commit a murder, according to the article, committed by an intruder... 4.8 Ultimately, Mr Jefferies successfully brought proceedings for defamation against eight newspapers68 in relation to allegations contained in 40 separate articles.69 At the hearing before Mr Justice Tugendhat on 29 July 2011 when the libel settlements were announced, Mr Jefferies solicitor said this:70 Christopher Jefferies is the latest victim of the regular witch hunts and character assassination conduct by the worst elements of the British tabloid media. Many of the stories published in these newspapers are designed to monster the individual, in flagrant disregard of his reputation, privacy and rights to a fair trial. 4.9 Similar strictures had previously been made in a somewhat different tone, but with equivalent accuracy, by Ms Yeates partner, Greg Reardon, who issued a press statement on 1 January 2011 in these terms:71 Jos life was cut short tragically but the finger pointing and character assassination by social and news media of as yet innocent men had been shameful. It has made me lose a lot of faith in the morality of the British press and those who spend their time fixed to the internet in this modern age ... I hope in the future they will show a
para 34, http://www.bailii.org/ew/cases/EWHC/Admin/2011/2074.html The Sun, the Daily Mirror, the Sunday Mirror, the Daily Record, The Daily Mail, the Daily Star, The Scotsman and the Daily Express 69 p5, para 26, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-ChristopherJefferies.pdf 70 http://www.guardian.co.uk/media/greenslade/2011/jul/29/joanna-yeates-national-newspapers 71 p10, para 29, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-ChristopherJefferies.pdf
68 67
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more sensitive and impartial view to those involved in such heartbreaking events and especially in the lead-up to potentially high-profile court cases. 4.10 But, as Mr Jefferies has pointed out,72 the majority of newspapers failed to print this section of his tribute, and those who did omitted critical wording, altering the meaning completely.
The press perspective

4.11 The Inquiry heard from two journalists involved in these stories, one employed by MGN and the other by NGN, the publishers of the Daily Mirror and The Sun newspapers generally, as well as from those who played an editorial role. As with the McCanns, no criticism is made or to be inferred of the journalists, because it was not their decision to run with the story generally or to publish any specific or individual pieces. It is clear from their evidence that a number of former pupils of Mr Jefferies were approached by journalists to give their views of his character, personality and temperament. This in itself was a risky and unwise course of action; it could be treated as an opportunity for old scores to be settled, and some may also have believed that there could be no smoke without fire. To their credit, not every pupil succumbed to these temptations. Whereas it is true that many of the articles written about Mr Jefferies included favourable material, the point made by the Lord Chief Justice in the contempt proceedings (namely that this was quite insufficient to nullify the prejudicial impact of the disparaging material) is of course entirely valid; and in any event that which spoke of Mr Jefferies in positive terms did not do full justice to the quality and weight of that material. Furthermore, evidence given by one of the journalists does altogether chime with evidence the Inquiry has already noted in relation to the McCanns:73 Well, obviously hindsights a wonderful thing, and looking back, we everybody at the Daily Mirror is very regretful of the coverage and we do apologise to Mr Jefferies for vilifying him in such a way, but you have to understand at the time it was such a high profile murder investigation. There was huge public interest and concern over the tragic death of Joanna Yeates. LORD JUSTICE LEVESON: I understand that. Actually, let me share this with you, Mr Parry: thats one of my concerns, that everybody in retrospect will say, Well, that clearly went too far and this clearly was wrong and that shouldnt have happened and well put in place mechanisms to try to prevent it in the future until the next enormous story comes along and it all just drains away. A. I accept that, but I think youll find that this particular story was perhaps, you know, a watershed moment for the industry. It wasnt an eye opener. It wasnt just the Daily Mirror. It was a number of newspapers who fell foul of this. 4.13 There is clearly a sense here of the story acquiring its own close to irresistible momentum and running out of control. The same sense emerges from other evidence the Inquiry received, some of which is set out below. The duty editor at The Sun over the New Year period in 2010/2011 was Stephen Waring, its current publishing director, the editor Dominic Mohan being on holiday. Mr Waring gave entirely frank evidence about his papers coverage of this story, and freely admitted
4.12
4.14
p11, para 30, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-ChristopherJefferies.pdf 73 p52, lines 4-24, Ryan Parry, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-24-January-2012.pdf
72
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his mistakes. He also volunteered the fact that he spoke to Mr Mohan about the coverage in the 1 January edition and that the latter said that he thought that the paper should be more balanced.74 Mr Waring gave the following explanations as to how the story came to be published in the way in which it did:75 ... to me there are three elements to this. Theres the material wed previously published the day before, ie the first day of Mr Jefferies arrest, and there was a lot of critical comment about his character from four unnamed pupils, ex-teachers, people former acquaintances, and that set a particular tone, which coloured my judgment wrongly, but that coloured the judgment. There was the nature of the story, which, just to put it in context, this story had been, as I say, on the front page for seven previous editions, there was a general bafflement as to the motive for this appalling murder, and Mr Jefferies inconsistency, as it was perceived in his story the day before he was arrested seemed, wrongly, to be the great breakthrough, and this led to a great outpouring of adverse comment about his character ... But the key aspect of this is the light in which this was legalled. I cant speak for the lawyers own mind, but we are talking about an era where there was a far more liberal interpretation about what we could get away with in print. 4.15 This reference to what newspapers could get away with in print, which was Mr Warings own choice of language, was a reference to the application of the contempt of court legislation by the Attorney General. However, as the Divisional Court in the contempt proceedings amply made clear, the Attorney was merely applying the law as it had been set out and applied in the relevant legislation. If previous holders of that office had been applying a more liberal interpretation of the law, then newspapers were indeed getting away with more than they should have done. In any event, this was not simply a question of contempt: it was a gross libel. Nonetheless, this evidence chimed with other evidence heard by the Inquiry that, in large parts of the press, the primary concerns of legal and managerial oversight are to avoid litigation: the fact that a particular story, or a particular method might have been unethical, but legal, received little attention. It would be wrong to leave Mr Warings evidence without setting out his closing remark in full:76 Could I just say one other thing? Please dont judge my colleagues by the errors Ive made in this edition, because they are a bunch of very committed, hard-working individuals, the finest journalists in Fleet Street, and the Sun is a very vibrant paper that is a compassionate paper. We produce 100,000 items a year. We got this one badly wrong and I admit that, but these mistakes do happen. 4.17 Richard Wallace gave evidence about the Mr Jefferies case in his capacity as editor of the Daily Mirror at the relevant time. As with Mr Waring, he frankly admitted that on this occasion his newspaper fell short of its own benchmark standards of fairness, justice and compassion,77 and that this was a very black mark on [his] editing record.78 Mr Wallace claimed that the Daily Mirror was acting on the faith of a number of off-the-record briefings from police
4.16
74
p77, lines 2-3, Dominic Mohan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-24-January-2012.pdf 75 pp82-83, lines 3-6, Stephen Waring, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-24-January-2012.pdf 76 p86, lines 18-25, Stephen Waring, ibid 77 p65, lines 6-10, Stephen Waring, ibid 78 p67, lines 4-5, Stephen Waring, ibid
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officers,79 the existence of which has been denied by the former Chief Constable of Avon and Somerset Constabulary, Colin Port, in his witness statement to the Inquiry.80 The Inquiry is not in a position to resolve this potential conflict of evidence, nor does it need to. The possibility that the Daily Mirror was in receipt of unauthorised briefings as opposed to authorised, offthe-record guidance has not been overlooked. 4.18 Mr Wallace was asked to consider whether there were broader reasons underlying the Daily Mirrors error of judgment in this case. It is worthwhile setting out his answer in full:81 Q. So what was it that was driving you to take such a risky decision? Was it simply such a big story that you couldnt afford to ignore it? A. No, I made a very serious misjudgment. Q. Im trying to explore what pressures were on you. Was it because of the competition with your rivals, who were also covering the story very extensively and in lurid terms? A. Competition is always keen within Fleet Street. That has led us to have a very and continue to have a very vibrant press. The envy of the world, I might add. But one always wants to beat the competition, but one should not become reckless in seeking to beat your competition. How, in your view, would you learn from the mistake that you made on this occasion to avoid something like this happening again? A. I think Mr Jefferies name will be imprinted on my brain forever more. It will change very much the way I deal with any story of this nature in the future. Q. Apart from that, is there any practical change that could be made to reduce the risk of something like this happening again? A. I dont believe so, because ultimately its down to the judgments of editors and, you know, as I found in this regard and other mistakes have been highlighted, we all make mistakes. Im not seeking to downplay those mistakes or dismiss them; Im just saying you can have as many safeguards and checks and balances in place as you would like but these errors are going to happen. Its about creating a climate, I believe, which makes all editors think perhaps a little bit longer than they have previously. 4.19 Putting to one side the concerns arising from Mr Wallaces failure to identify any specific changes that could be introduced to avoid such reporting in the future,82 he was right to point out that editorial judgment will always be an important factor, and that mistakes will be made, even in the most ethical of systems. However, the final point he made in this section of his evidence is deserving of greater emphasis. Mr Wallace referred to the creation of a climate; this Inquiry has throughout spoken in terms of creating a culture, and one of greater respect for the rights of individuals and, as in Mr Jefferies case, for the rule of law. The Daily Mirror believed that their story was accurate, otherwise they would not have published it. To suggest otherwise would be to accuse the paper of malice, and there is simply no evidence to support that allegation. It is possible to make the relevant point far more modestly in this way: even if the story had not been defamatory, the Daily Mirror and other newspapers should not have published it. Mr Wallace accepted that no editor should become reckless in
79 80
pp65-66, Stephen Waring, ibid p4, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Chief-ConstableColin-Port.pdf 81 pp72-73, lines 12-19, Richard Wallace, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-16-January-2012.pdf 82 Part F, Chapter 7
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seeking to beat the competition, and in this particular case he should also accept that he fell short of that standard too. 4.20 It is worth making another point as well. Much has been said, quite rightly, about the exceptionally good reporting that comes out of the press in this country. That is not, however, the point. What matters is the fact that poor decisions and serious lapses in the standards that the press set for themselves are more than occasionally evident and few papers can say that they have never published a story that failed to meet the standards of the Editors Code. A regulatory system is there to uphold standards for all, however they normally behave; it needs to exist alongside any question of redress and whether or not the particular breach gives rise to an actionable tort. Mr Jefferies was the victim of a very serious injustice perpetrated by a significant section of the press. Without such reporting, it is hard to accept that he would have found it necessary to change his appearance and effectively lodge with friends for approximately three months. For those who have said that the Inquiry has been overly concerned with the complaints of celebrities, Mr Jefferies was not such an individual. Nor were the McCanns or the Dowlers. Clearly, all of these witnesses would have wished for nothing more than to have remained well out of the public eye and off the front pages of newspapers but, for reasons beyond their control, that was not where they found themselves.
4.21
5. the rt hon Gordon Brown mp and his sons illness

Introduction
5.1 In November 2006 The Sun published private medical information about the son of the then Chancellor of the Exchequer, the Rt Hon Gordon Brown MP. At the time of publication, Mr Browns son was four months old, and the story reported his diagnosis of cystic fibrosis.83 The Inquiry heard extensive evidence in relation to this story and, because of the light it throws on a number of aspects of the culture, practices and ethics of the press, it is appropriate to address it in some detail. The factual disputes which arose during the course of the evidence will only be resolved to the extent necessary to illuminate the culture of the press in general. For example, there is considerable dispute between the then editor of The Sun, Rebekah Brooks and Mr Brown as to how the story was sourced in the first place. For a number of reasons which will be explained, it is simply not possible to resolve that dispute on the available evidence, and it would have been difficult to do so even had the Inquiry decided to investigate the story in depth and require further evidence to be provided. What is not in dispute is that there was no public interest in the story sufficient to justify publication without the consent of Mr and Mrs Brown.84 The medical information published by the newspaper was private information about a very young child and it therefore deserved the utmost protection. Prior to publication, only a small handful of doctors, other health workers and family members ought to have been, and the Browns would say were, aware of the diagnosis, and it would have been obvious to anyone in possession of the information that it was highly sensitive and not to be disclosed without consent. In July 2011, at the height of the phone hacking scandal, Mr Brown made further allegations as to how The Sun might have obtained the material for the original 2006 story. The response
5.2
5.3
83 84
http://www.thesun.co.uk/sol/homepage/news/73335/Browns-baby-has-cystic-fibrosis.html pp137-138, lines 14-23, Dominic Mohan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/ Transcript-of-Afternoon-Hearing-7-February-2012.pdf
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of The Sun to those allegations shares similarities with the response of the Daily Mail to Hugh Grants evidence to the Inquiry, addressed at Section 6 below. 5.4 Furthermore, Mr Browns evidence to the Inquiry itself generated a hostile reaction in certain sections of the press. That reaction, and the ultimate resolution of the issue to which it related, is discussed below.
The Suns source

5.5 The article published in The Sun on 13 July 201185 stated that the source of the original story was a shattered dad whose own son has the crippling disease and who wanted to highlight the plight of sufferers. Although the article contains the categorical denial of this gentleman that he had seen confidential medical records (all of which is the truth as I shall answer to God), it is not specific as to how he had come about this information, save to allege that he has links with the Brown family. Mrs Brooks was asked to explain this lack of specificity when she gave evidence. Her account was as follows:86 Q. How had he got the information? A. Hed got the information because his own child had cystic fibrosis and hed got the information, I should say, through a very small its not a small charity, but there is a charity aspect to the Cystic Fibrosis Society, and he got it slightly by involvement through there. Q. What sort of involvement? A. Mr Jay, Im not going to tell you any more about the source because I dont want to reveal his identity. Q. But youre not. A. Well, I feel uncomfortable answering that because I think it could lead to his identity. Youre asking me where information came from and the source, and I think they are matters that I have to respect in a source coming to the newspaper. The main point of this issue is Mr Brown accused the Sun of hacking into his sons medical records to get this story and that wasnt true. LORD JUSTICE LEVESON: It wasnt accurate? A. No, sorry, it wasnt accurate. 5.7 Although the matter was pursued further with her, Mrs Brooks was adamant in her refusal to breach the confidentiality of the source. Without knowing more of the background circumstances, and exactly how the source had apparently obtained the information from the charity mentioned, the Inquiry is not in a position to judge whether Mrs Brooks refusal to answer further questions on the ostensible basis that the sources identity might be disclosed was justified or not. Further, the possibility that the source, (assuming he existed), obtained this information by unlawful or unethical means has not been overlooked, but here again the Inquiry is in no position to make a finding.
5.6
85
http://www.thesun.co.uk/sol/homepage/news/3691926/The-Sun-exposes-the-allegation-that-we-hacked-intoGordon-Browns-family-medical-records-as-FALSE-and-a-smear.html 86 pp32-33, lines 14-8, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-11-May-2012.pdf
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5.8
Mr Browns evidence was that The Suns account was incorrect, and that the information as to his sons medical condition had been obtained in circumstances of a breach of confidentiality:87 In 2006, the Sun claimed that they had a story from a man in the street who happened to be the father of someone who suffered from cystic fibrosis. I never believed that could be correct. At best, he could only have been the middleman, because there were only a few people, medical people, who knew that our son had this condition. In fact, for the first three months that our son was alive, I just have to say to you, we didnt know, because there were tests being done all the time to decide whether this was indeed his condition or not, and only by that time, just before the Sun appeared with this information, had the medical experts told us that there was no other diagnosis that they could give than that this was the case. So only a few people knew this. I have submitted to you a letter from Fife Health Board which makes the National Health Service in Fife, that is which makes it clear that they have apologised to us because they now believe it highly likely that there was unauthorised information given by a medical or working member of the NHS staff that allowed the Sun, in the end, through this middleman, to publish this story. Now, whether medical information should ever be hounded out without the authorisation of a parent or of a doctor through the willingness of a parent is one issue that I think it addressed, and I know the Press Complaints Commission code is very clear, that there are only exceptional circumstances in which a childs or information about a child should be broadcast, and I dont believe that this was one of them.
5.9 5.10
Mr Browns oral evidence contained an accurate summary of the contents of the letter from the Fife NHS Board to which he referred.88 The written closing submissions lodged on behalf of Mrs Brooks urge the Inquiry not to reach any finding of fact on the source of the story.89 The points are made that not merely was Mrs Brooks entitled to refuse to disclose her source, but also that NI has other documentary material in its possession which could throw light on the matter. I accede to Mrs Brooks submissions, but not without a degree of reluctance. The letter from the Fife NHS Board does not conclusively prove that Mrs Brooks account is incorrect: full details of the investigations it carried out are not provided, and the term very likely does not exclude other possibilities. This case study illustrates precisely the sort of difficulties which arise as and when a journalist such as Mrs Brooks invokes the protection for sources vouchsafed by clause 14 of the Editors Code of Practice.90 Further, it is one of the consequences of the very real protection that the law rightly gives to journalists in relation to sources but it serves to underline the difficulty in holding the press to account (or allowing the press to vindicate itself) if there is a challenge to the propriety of the way in which the information has been obtained. Mrs Brooks evidence to the Inquiry could well have been accurate; on the other hand, if it had been inaccurate, the means of exploring and demonstrating that proposition is precluded by the terms of clause 14 if not the general law.
87
pp27-28, lines 11-16, Gordon Brown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-11-June-2012.pdf 88 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-GB9-to-Witness-Statement-of-GordonBrown-MP-Black.pdf 89 p9, paras 31-32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Closing-Submission-fromRebekah-Brooks.pdf 90 http://www.pcc.org.uk/assets/696/Code_of_Practice_2012_A4.pdf
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Consent for publication

5.11 Mr Browns evidence to the Inquiry was that neither he nor his wife expressly consented to publication of the story. In his words:91 Our press office was phoned by a journalist from the Sun and said that they had this story about our sons condition and they were going to publish it. I was then contacted. I was engaged in the pre-budget report. I immediately, of course, phoned my wife, Sarah, and we had to make a decision. If this was going to be published, what should happen? We wanted to minimise the damage, to limit the impact of this, and therefore we said that if this story was to be published, then we wanted a statement that went to everyone that was an end to this, and there would be no further statements, no days and days and days of talking about the condition of our son. Unfortunately, this was unacceptable to the Sun newspaper. The editor phoned our press office and said that this was not the way that we should go about this, and to be honest, if we continued to insist that we were going to make a general statement, the Sun wouldnt, in future, give us any chance of advance information on any other story that they would do. It was at that time that the editor of the Sun phoned my wife, whose aim then, having accepted that this was a fait accompli there was no thought that the Press Complaints Commission could help us on this. I think we were in a different world then. Nobody ever expected that the Press Complaints Commission would act to give us any help on this, and we were presented with a fait accompli, Im afraid. There was no question of us giving permission for this. There was no question of implicit or explicit permission. I ask you: if any mother or any father was presented with a choice as to whether a four-month old sons medical condition, your childs medical condition, should be broadcast on the front page of a tabloid newspaper and you had a choice in this matter I dont think theres any parent in the land would have made the choice that we are told we made, to give explicit permission for that to happen. So there was no question ever of explicit permission. 5.12 Mrs Brooks account was that the Browns, and Sarah Brown in particular, gave their consent to the publication of the story:92 A. I think in the period of time of receiving the information and publishing the information, which is which, by the way, went to all newspapers all newspapers published it around the same day I spoke to the Browns. I will have spoken probably to people around them but I definitely had more of a communication with Sarah Brown, as she was my friend, and I probably discussed it with her more. The sequence of events were: Fraser Brown was born in July. I think the information came to the Sun in the late October. I think the Browns position at the time was very much that they had had the tests confirmed, and as Prime Minister and his wife, they felt that there were many, many people in the UK whose children suffered with cystic fibrosis. They were absolutely committed to making this public and they were also one of the most overwhelming memories of that time for me was the Browns insistence
91
pp29-31, lines 12-2, Gordon Brown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-11-June-2012.pdf 92 pp41-43, lines 10-12, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcriptof-Afternoon-Hearing-11-May-2012.pdf
567
that when the story was published, that we absolutely highlighted the positives in association with the cystic fibrosis association. Q. The story was published in November, when the child was four months old I said four years old; thats incorrect and before, I think, the diagnosis was confirmed. Is that true? A. No. I think and this is again from my conversations back in 2006 with the Browns and people who advised them Im pretty sure we ran the story in the November and the tests were confirmed some time in the October. Q. When you spoke to Mrs Brown thats your evidence, Mrs Brooks was it on the basis that: Look, weve got this story, were going to run with it, lets see how we can run with it in a way which is least harmful to you, or something like that? A. Absolutely not, and I think that as youve seen in my witness statement, I was quite friendly with Sarah Brown at the time. Very friendly. Shed been through a hell of a lot already. I think my first thing I would have said to both of them was would have been a much more considerate and caring response to hearing the news myself. I was very I was very sad for them. I didnt know much about it and I wanted to find out what had gone on. You have to remember that the this is 2006. This is only five years later that Mr Brown had ever said anything that he was in any way concerned about my behaviour, the behaviour of the Sun, how we handled it. Indeed, after 2006, I continued to see them both regularly. They held a 40th birthday celebration party for me. They attended my wedding. I have many letters and kind notes. Sarah and I were good friends. And so I felt hence the story in the Sun in 2012 was quite tough was that Mr Browns recollections of that time werent the same as my own. 5.13 Mrs Brooks testimony serves to highlight two lacunae in the evidence which renders it difficult for the Inquiry fully to resolve the stark evidential dispute, or at the very least profound differences of recollection, between these two witnesses. First, Mrs Brooks stated that other newspapers published the story around the same day. It is now clear that those other newspapers published the story on the basis of a press release sent out by the Browns the night before publication in The Sun. Although Mr Brown did not give evidence in relation to this press release, it appears (for reasons set out in more detail below) that the Browns issued the press release once they realised that publication in The Sun was inevitable. Second, the Inquiry did not hear directly from Mrs Brown. To have required her to give evidence would have been a disproportionate step in all the circumstances, and the Inquiry cannot properly speculate as to what assistance, if any, she might have been able to give. Mrs Brooks account possesses at least two surprising features. First, the claim that the Browns were absolutely committed to making this public frankly defies belief: one hardly needs Mr Brown himself to point out that no parent in the land would have wanted information of this nature to be blazoned across the front page of a national newspaper. On the other hand, if the complaint is well founded, the fact that the Browns appeared to have remained friendly with Mrs Brooks after November 2006 is itself somewhat surprising. Mr Browns explanation, that his wife is one of the most forgiving people I know,93 may indeed be correct (and I do not seek for one moment to challenge it), but, in these circumstances, she would have to be. Interestingly, Mr Brown went on immediately to say that we had to get on with the job
5.14
93
p34, lines 18-19, Gordon Brown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-11-June-2012.pdf
568
of doing what people expect a politician to do, to run a government:94 this itself throws much light on the relationship between the press and politicians, with its implication that the imperative of continuing to get on with NI was abiding. 5.15 It is possible to reconcile this apparent conflict of evidence without concluding that any witness sought deliberately to mislead the Inquiry. Mr Browns evidence was assuredly right when he said that he and his wife felt that they were being presented with a fait accompli. A journalist, and not Mrs Brooks, had telephoned his press office with the news that The Sun was going to publish this story; or, putting the matter at its lowest, this was the inference which the press office drew. From their own previous experience or knowledge of the culture, practices and ethics of the press, the Browns now perceived that this was now a matter of damage limitation, and they sought to come to an arrangement with The Sun on that basis. Clearly, the Browns did not believe that they could persuade The Sun or its editor to take a different course altogether, otherwise they would have tried to do so. Some of the detail of Mr Browns account could not be put to Mrs Brooks when she testified, because it simply was not available at that stage. What is clear is that Mrs Brooks telephoned Mrs Brown and each believed at the end of that conversation that a concordat had been reached: Mrs Brown, because she had no option; and Mrs Brooks, because the Browns did not explicitly oppose the publication of the story. Mrs Brooks is to be criticised in two interconnected respects, but only to the extent necessary to address the culture, practices and ethics of the press. I do not find (as Mrs Brooks asserted) that the Browns were absolutely committed to making the fact of their four month old sons illness public, nor do I accept that their press release the night before publication evidences that fact. However, it should be made clear that I am not thereby holding that Mrs Brooks deliberately misled the Inquiry. Mrs Brown is highly unlikely to have said anything expressly along the lines that she was absolutely committed to making the fact of their sons illness public, and insofar as Mrs Brooks drew that inference from Mrs Browns acquiescence or failure to remonstrate, she is guilty of a degree of blinkeredness if not self persuasion. Had she stopped to place herself in Mrs Browns situation, she would have begun to understand the predicament in which she had been placed. In all the circumstances, Mrs Brooks should have asked a series of direct questions of Mrs Brown to satisfy herself that consent was fully and freely given, and should have given her the express option of vetoing publication. In the result, the Browns managed the revelation of the information via their own press release, the story was subsequently published in a way which placed the Brown family in a sympathetic light, and The Sun had its front page. The Browns had been presented with Hobsons choice, and they took the line of least resistance. In that way they avoided both the risk of The Sun publishing an account to which they had not contributed, and the possible political fallout with NI which might have ensued had they strenuously objected. The fact that Mrs Brooks might well not have published this story in The Sun had the Browns expressly asked her not to do so does not reflect badly on her, but speaks volumes for the culture, practices and ethics of the press. In this particular instance, she held all the reins of power, and the Browns held none; to the extent that they felt that could not even ask Mrs Brooks to back off. Further, this form of fait accompli is a familiar one to this Inquiry. The Browns evidence strikes concordant notes with the evidence of witnesses such as Ms Diamond and the singer, Charlotte Church, to name but two.
5.16
5.17
5.18
5.19
94
p34, lines 21-22, Gordon Brown, ibid
569
False smear
5.20 The article published in The Sun on 13 July 201195 commenced with this sentence: The Sun today exposes the allegation that we hacked into Mr Browns medical records as FALSE and a smear. 5.21 Unsurprisingly, given that similar language had been used by another newspaper in November 2011 and this was still fresh in the Inquirys mind,96 I pursued a line of questioning with Mrs Brooks on this matter:97 LORD JUSTICE LEVESON: Now, my question. Would you look, please, at the first line of the Sun article: The Sun today exposes the allegation that we hacked into Gordon Browns family medical records as false and a smear. My concern is whether its fair to describe that as it may be incorrect, but as false and a smear. A. In the general point, I can absolutely see what youre saying, sir, is correct, but this was not this was a particular journey that the Sun had been involved in since the beginning of the information coming into the Sun newsroom and what happened after that and subsequent to that. LORD JUSTICE LEVESON: But if he never knew how you got it, all you can say and youre entitled to say, Hes just got it wrong. A. He came to the wrong assumption in 2011.
LORD JUSTICE LEVESON: And thats absolutely fair. So the issue is whether its part of the culture of the press that actually attack is the best form of defence. So people dont just get it wrong; its false, in capitals, and a smear. Do you see the point Im making? A. I do see the point youre making, but, sir, the context of that article was written after Gordon Brown had first of all, I think his first appearance in Parliament since he stepped down as Prime Minister was to come to the House and speak incredibly critically and, in some cases, made wrong assumptions through his testimony to the House, and then the second thing he did, he then went on, I think, the BBC I cant remember to do an interview with another wrong assumption that the Sun had got the story from [the childs] medical records, and I think combining the two, if you like, attacks from Mr Brown that had never ever been raised by him in any shape or form with any of us at News International or Mr Murdoch he never once mentioned press ethics or practices in his in our entire relationship that the Sun felt that it was a smear, that he was doing it five years later for a particular reason, and I think thats why they wrote the story that they did. Now, I was chief executive at the time. I didnt write the story but Im defending their right to write the story like that. LORD JUSTICE LEVESON: All right. Youve provided an answer, but actually what youve demonstrated is that the Sun believed and they may be right or wrong, I dont know that Mr Brown had added two and two and two and got 27, whereas in fact, if you took each one of the incidents on their own, it may have been he may have
95
http://www.thesun.co.uk/sol/homepage/news/3691926/The-Sun-exposes-the-allegation-that-we-hacked-intoGordon-Browns-family-medical-records-as-FALSE-and-a-smear.html 96 see discussion of the Daily Mails allegation of a mendacious smear by Hugh Grant at Section 6 below 97 pp34-36, lines 19-24, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcriptof-Afternoon-Hearing-11-May-2012.pdf
570
made a mistake, he may be wrong to reach the conclusion thats all fair enough, entirely proper, but it goes a bit further than that. A. I accept that this story does, but if you imagine for the Sun, the Sun and I know I keep mentioning this, but the Sun has a trust with its readership. 5.22 Ultimately, the issue for Mrs Brooks was the reputation of The Sun in the eyes of its readers. This struck another chord, in that in a different context (the pursuit of campaigns) Mrs Brooks stated that all that The Sun did was to reflect the viewpoint of its readers. In other words, editors and journalists are mere reflectors of public opinion rather than the drivers of it, and the readers are always the pre-eminent concern. Mrs Brooks discountenanced the suggestion that by criticising Mr Brown in this way the paper was unnecessarily raising the temperature and indulging in an exercise in aggressive defence; she could understand the point that was being put to her, but could not begin to see the issue from Mr Browns perspective, instead preferring to defend the papers right to publish this type of story. The parallels with the mendacious smear story98 and other evidence referred to below,99 are obvious.
5.23
The aftermath of Mr Browns evidence to the Inquiry

5.24 On 25 June 2012 Linklaters on behalf of NI wrote to the Inquiry drawing its attention to an article in The Sunday Post (a newspaper published in Dundee) on 17 June which stated: The Sunday Post heard about the babys condition weeks before they [sic] were published in The Sun. We contacted the Browns, and they told us that they did not want to comment. We respected their privacy, and didnt print the story. Remember that not all newspapers are the same. 5.25 Rather than draw attention to the way in which The Sunday Post sought to distance itself from the conduct of The Sun newspaper, as well as to the fact that the Brown familys no comment is hardly consistent with Mrs Brooks evidence that they were absolutely committed to broadcasting their sons condition, the point Linklaters made was that Mr Browns evidence to the effect that there were only a few people, medical people, who knew that our son had this condition must be incorrect. Linklaters asked the Inquiry to obtain further evidence from The Sunday Post and Mr Brown relating to this issue. On 28 June 2012 The Times published a short piece which reported on Linklaters request to the Inquiry, and referred to Mr Browns claim that The Sun had illegally obtained information from his sons medical records. However, on Wednesday 2 July The Times felt constrained to publish an apology in these terms: The Sunday Post has now explained it did not know that the baby had, or was being tested for, cystic fibrosis. And we accept that Mr Browns evidence to the Leveson Inquiry was not as we described it: he told the Inquiry that he had been told by the Fife Health Board it was highly likely that the information about his sons condition originated from an NHS staff member. We are happy to clarify the position and apologise to the Brown family.
98 99
5.26
5.27
Section 6 below Section 10 of Part F, Chapter 6
571
5.28
Although the Inquiry accepts the explanation given in the third witness statement of Pia Sarma, editorial legal director at the Times Newspapers Limited, dated 3 September 2012 that facts set out in the article in The Times dated 28 June 2012 were themselves obtained from information supplied by The Sunday Post, it is clear that the author of that article had misread Mr Browns evidence to this Inquiry. Others have suggested that on this occasion The Times demonstrated a lack of objectivity borne out of its desire to protect another NI title: this is certainly a possible inference, but would require more specific evidence to substantiate. Considering the episode as a whole, the treatment of Mr and Mrs Brown by NI left much to be desired. It cannot be equated with the treatment experienced by the McCanns, Dowlers or Mr Jefferies, but, as a whole, the experience of the Browns provides a fine example of a number of aspects of unsatisfactory and/or unethical press practices further examined below.100
5.29
6. hugh Grant and the mendacious smear

6.1 Hugh Grant was one of the first witnesses to give evidence before the Inquiry in November 2011. At paragraph 11 of his first witness statement he referred to an article published in the Mail on Sunday on 18 February 2007.101 The article speculated that the cause of the breakdown of Mr Grants long term relationship with Jemima Khan was a series of latenight phone calls with a glamorous young Cambridge-educated film executive from Warner Brothers with a plummy-voice. The article continued: a source revealed last night...Hugh was always disappearing for meetings and whenever he was on the phone to this woman, Jemima would hear her plummy laughter. She would always call Hugh on his mobile, but Hugh would tell Jemima the woman was calling to discuss the movie. Then hed switch his phone off. Jemima has been very upset about it... 6.2 This article was defamatory of Mr Grant, and he successfully brought proceedings for libel against the publishers. According to his first witness statement,102 the woman in question was an assistant to an executive at a film company associated with Warners. She was middle-aged, happily married, and never had been a girlfriend of Mr Grant. She left voicemail messages on Mr Grants phone, and these were plummy-voiced and sometimes jokey. Mr Grant had not suggested in the libel action that Associated Newspapers Ltd (ANL) may have hacked into his mobile phone. At that stage his only concern was likely to have been his cause of action in the tort of defamation, and, in 2007, the issue of phone hacking had not achieved the level of prominence that it was subsequently to acquire. Paragraph 11 of Mr Grants first witness statement concluded with this sentence:103 We know from Paul Dacres assertions that the Mail papers have never based stories on intercepted phone messages, so the source of the story remains a great mystery
6.3
Part F Chapter 6 p4, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Hugh-Grant. pdf 102 ibid 103 p4, para 11, ibid
101
100
572
6.4
Although Mr Grant was of course not directly accusing the Mail papers of hacking into his phone, that he was lightly hinting at such a possibility was not lost on the Inquiry. It is worthwhile setting out the relevant part of Mr Grants oral evidence in full:104 Q. Are you suggesting there that the story must have come from phone hacking? A. Well, what I say in this paragraph is that the Mail on Sunday ran an article in February 2007 saying that my relationship with my then girlfriend, Jemima Khan, was on the rocks because of my persistent late-night flirtatious phonecalls with a plummyvoiced studio executive from Warner Brothers, and it was a bizarre story, completely untrue, that I sued for libel over and won and damages were awarded, a statement was made in open court. But thinking about how they could possibly come up with such a bizarre left-field story, I realised that although there was no plummy-voiced studio executive from Warner Brothers with whom Id had any kind of relationship, flirtatious or otherwise, there was a great friend of mine in Los Angeles who runs a production company which is associated with Warner Brothers and whose assistant is a charming married middle-aged lady, English, who, as happens in Hollywood, is the person who rings you. The executive never rings you. Its always their assistant: Hi, we have Jack Bealy(?) on the phone for you. And this is what she used to do. She used to call and she used to leave messages and because she was a nice English girl in LA, sometimes when we spoke, wed have a chat about English stuff, Marmite or whatever. So she would leave charming, jokey messages saying, Please call this studio executive back, and she has a voice that could only be described as plummy. So I cannot for the life of me think of any conceivable source for this story in the Mail on Sunday except those voice messages on my mobile telephone. Q. You havent alleged that before, have you, in the public domain? A. No, but when I was preparing this statement and going through all my old trials and tribulations with the press, I looked at that one again and thought that is weird, and then the penny dropped. Q. I think the highest it can be put is, frankly, its a piece of speculation on your part, isnt it, in relation to this? A. Yes, you could yes, speculation, okay, but I would love to know I mean, I think Mr Caplan, who represents Associated, was saying earlier today that hed like to put in a supplementary statement and you know, referring to the things I say today. Well, Id love to hear what the Daily Mails or the Sunday Mails explanation for that article is, what that source was, if it wasnt phone hacking.
6.5
Taking Mr Grants evidence as a whole, it is reasonable to conclude that he freely accepted Counsels suggestion that he was speculating as to the source of the article, yet was seeking an explanation from ANL as to the circumstances in which the article came to be published in the Mail on Sunday. This conclusion is entirely supported by paragraph 17 of Mr Grants second supplementary witness statement, where he said this:105 Nevertheless I accepted entirely that this was of course speculation on my part as only the newspaper has the documents or evidence on which the story was prepared. I never saw any in the legal proceedings.
pp7-9, lines 22-21, Hugh Grant, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-21-November-2011.pdf 105 p5, para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Supplemental-WitnessStatement-of-Hugh-Grant1.pdf
104
573
6.6
Mr Grants evidence attracted a lot of media publicity, not least because he had covered a range of issues and this has been the first day of the evidence sessions of the Inquiry. Paul Dacre, the editor-in-chief of all the ANL titles and the editor of the Daily Mail, heard a report of Mr Grants evidence on the 16:00hrs radio news. Again, it is worthwhile setting out the whole of the relevant section of his oral evidence to the Inquiry:106 A. Can I explain the circumstances of that? I was off that day on an outside appointment. Not off; out of the office on an outside appointment, and I was driving back and the 4 oclock news came on the BBC and the headline was as followed: Another major newspaper group has been dragged into the phone hacking scandal. Actor Hugh Grant has accused the Mail on Sunday Associated Newspapers Mail on Sunday of hacking phones. It was a terrible smear on a company I love. We had to do something about it. I discussed with the Mail on Sundays editor what our response was. A long convoluted press statement was being prepared. I was deeply aware and he was deeply aware that you had to rebut such a damaging, damaging allegation, and we agreed on the form of words: It was a mendacious smear. Let me explain why I feel it was a mendacious smear. You will have read you have already interviewed our legal director on this for a considerable amount of time. Our witness statements have made clear that Associated is not involved in phone hacking and weve denied phone hacking in this instance, anyway, specifically.
6.7
The form of words which Mr Dacre was referring to appeared on page 11 of the Daily Mail published on the day after Mr Grant testified, that is to say on 22 November 2011. It read: The Mail on Sunday utterly refutes Hugh Grants claim that they got any story as a result of phone hacking. In fact, in the case of the story Mr Grant refers to, the information came from a freelance journalist who had been told by a source who was regularly speaking to Jemima Khan. Mr Grants allegations are mendacious smears driven by his hatred of the media.
6.8
The Inquiry is only concerned for present purposes with the final sentence of this extract from the Daily Mail and the reference to mendacious smears. Unsurprisingly, the protagonists to this dispute were concerned to seek to persuade the Inquiry to investigate whether or not Mr Grant had been the victim of voicemail hacking. Dealing with the rebuttal, Mr Grant submitted a witness statement from Ms Khan which emphatically contradicted the suggestion that she had been speaking to a source: she said that the first she knew any plummy-voiced woman calling Mr Grant, or anything similar, was when she read it in the Mail on Sunday.107 ANL, on the other hand, placed before the Inquiry material which sought to indicate that Mr Grants speculations were both illogical and without evidential basis.108 Although the Inquiry tested Liz Hartley, the head of editorial legal services at ANL, on her supplemental statement and permitted some limited cross examination of Mr Dacre by Mr Sherborne, it is unnecessary for this evidence to be analysed in this Report. For reasons discussed below, I do not accept the propositions advanced by ANL but it is very important also to make it clear that neither do I conclude that the Mail on Sunday or any journalist employed by it knowingly used material
6.9
pp85-86, lines 18-17, Paul Dacre, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-6-February-20121.pdf 107 p3, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Jemima-Khan. pdf 108 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Supplemental-Witness-Statement-of-Liz-Hartley. pdf
106
574
for this story which had been sourced by phone hacking: equally to be fair, Mr Sherborne on behalf of Mr Grant did not contend that I should. 6.10 Given the specific nature of the Inquirys concern, further questions were asked of Mr Dacre in order to establish whether he knew exactly what Mr Grant had claimed in evidence before the Mails rebuttal went out. Mr Dacre said this:109 LORD JUSTICE LEVESON: But did you ask precisely what Mr Grant had said? A. Yes, of course. I had that because I was in liaison with the office. LORD JUSTICE LEVESON: So you knew that the headline did not reflect what hed said? A. Yes, but that the damage was being done and Im glad to say that once we got our statement out, we had a much, much more balanced reporting of it by the BBC and other media. But if that had been allowed to stand, it would have been devastating for our reputation. MR JAY: I just wonder, Mr Dacre, whether you didnt shoot from the hip a little but too fast on this occasion. A. Not at all. It needed rebutting instantly. This is how modern communications work. It is my view that Mr Grant made that statement on the opening day of the court Hacked Off, the organisation backed by the Media Standards Trust, attempted to hijack your Inquiry with that highly calculated attempt to wound my company, and I Q. Im not altogether clear, Mr Dacre, whether youre saying that Mr Grant perjured himself. Thats what mendacious smears might suggest. A. Im not going to go into that area. Ive tried to tell you the context of why we had to rebut this. I mean, let me say as clearly and as slowly as I can: I have never placed a story in the Daily Mail as a result of phone hacking that I knew came from phone hacking. I know of no cases of phone hacking. Having conducted a major internal enquiry, Im as confident as I can be that theres no phone hacking on the Daily Mail. I dont make that statement lightly, and no editor, the editor of the Guardian or the Independent, could say otherwise. Im prepared to make this I will withdraw that statement if Mr Grant withdraws his statements that the Daily Mail and the Mail on Sunday were involved in phone hacking. Q. Im not sure Im in a position to broker a deal between you, but can I just ask this, Mr Dacre: why didnt you come back, as it were, in the measured way youre coming to this Inquiry and then just say A. Ive tried to explain sorry. Q. And then say at the end: In the circumstances, Mr Grant is incorrect. A. Because then it would have been too late. 6.11 As I have already indicated, I make it clear that I accept Mr Dacres evidence that he never placed a story in the Daily Mail (or permitted one to be placed) which he knew came from phone hacking. That said, he did not engage with Counsels question that the use of the term mendacious smears might amount to an allegation that Mr Grant had committed perjury. The various written submissions of ANL maintained that the adjective mendacious possesses
pp87-88, lines 5-25, Paul Dacre, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-6-February-20121.pdf
109
575
a number of possible meanings, and argued that the term taken in context and properly understood in law amounts to nothing more than honest comment. In my judgment, however, reading the article in the manner in which I have been invited, the Daily Mail was accusing Mr Grant of lying. Mr Grant would only be lying if, in speculating as he did, he did not believe that his evidence had any foundation. 6.12 However, equally in my judgment, in making that accusation the Daily Mail was increasing the temperature and went too far. The plummy-voiced executive, apart from apparently being young, glamorous and Cambridge educated, was described in the article in the Mail on Sunday in particular by reference to the quality of her voice, as apparently discerned by someone hearing it on Mr Grants mobile phone. Mr Grant knew that a lady with a voice which could reasonably be described in this way had left voicemail messages. From his own perspective, he also knew that the claim made in the article that he discussed this ladys phone calls with Ms Khan was incorrect (at the time he gave his evidence, he did not have Ms Khans witness statement which further contradicted one important evidential plank on which the article was founded). He also knew that the lady in question was, with respect to her, middle aged rather than young, and he might well have believed that the references to her glamour and being Cambridge educated were poetic licence on the part of the newspaper. It follows, viewing the matter solely from Mr Grants perspective, that there was some basis for his concern (which in answer to a leading question he accepted was speculation) that an individual had listened to the contents of his voicemails. This person was, of course, not necessarily the source referred to in the article, but could equally easily have been someone who had spoken to the source about the story without identifying how the information became available. Mr Dacre accepted that his principal objective shortly after 16:00hrs on 21 November 2011 was to get out a strongly worded denial which would safeguard the reputation of his newspapers. However, in so doing he acted precipitately, in particular in failing to ascertain exactly what Mr Grant had said when he testified. His explanation that further inquiry along those lines would have meant that the response of the Mail titles would have been too late does not justify the aggressive line which was adopted in defence of its position. A response which defended the Mails position in regard to phone hacking and stating words to the effect that Mr Grants speculation was just wrong, while robustly defending the Mails position, would have achieved the same outcome without the accusation of perjury. Of course, Mr Dacre was perfectly entitled to decide what he wanted to put in the paper for which he had ultimate editorial control. He is entitled to challenge my view (as he has in robust and trenchant terms). As far as I am concerned, however, the point of this case study is that it is a good example of the phenomenon of aggressive defence identified above.110
6.13
6.14
7. Sebastian Bowles
The accident
7.1 At 21:15hrs on Tuesday 13 March 2012, a road traffic accident occurred in a motorway tunnel near Sierre, Switzerland, when a coach returning school children from a skiing trip to their homes in Lommel and Heverlee, Belgium, struck a brick wall. 28 people, including 22 children, lost their lives. It was a devastating tragedy of unimaginable proportions which, beyond the immediate traumatic effect upon families, relatives, friends and everyone touched by it, will have undeniably affected the lives of a very substantial number of people either forever or for
110
Part F, Chapter 6
576
a very long time. One of the children killed in the crash was a British boy, Sebastian Bowles, then 11 years of age. Not surprisingly, the facts were extensively reported. 7.2 The story is relevant to the work of the Inquiry not simply because of the way in which it has been reported in the press and the extent to which the press intruded into the grief of the family but also because all this happened while the Inquiry was underway, immediately after evidence about intrusive reporting which was to similar effect had been given. It is also important because it demonstrates the work done by the PCC in circulating member organisations about the concerns of the family; it equally highlights the unreality of a system that depends solely on complaints as a trigger therefore ignoring (and, thus, appearing to condone) potentially significant breaches of the Editors Code.
Press activity
7.3 Mr and Mrs Bowles learnt about the accident in the early hours of the following morning and Mr Bowles travelled to Switzerland by the first available flight. That afternoon, he learnt that Sebastian had not survived and he was joined by his wife and their nine year old daughter at the Hotel Des Vignes which had been designated by the Swiss authorities as the centre for parents with children involved in the crash. In the morning of 15 March, with other families, the three of them were taken to the scene of the crash. Although press photographers had not been permitted onto the hotel property (and coaches had been placed in front of the gate to obstruct the view and line of sight), they were photographed from a distance with neither their knowledge nor their consent while they waited under the porch of the hotel to get on the coach that would transport them to the scene. On 16 March, one of these photographs of the Bowles family (including Sebastians younger sister, obviously grieving) was published in the Daily Mail.111 16 March saw the publication of a great deal of other material. Prior to the trip, a website had been set up as a blog so that the children on the trip could send messages to their families, sharing their experiences both in writing and by photographs. The website was not password protected and thus was open to anyone but it was obviously intended to provide a mechanism for personal communication. It included a photograph of Sebastian in his skiing outfit; this photograph soon appeared on The Sun website; a representative of Mr Bowles employers contacted The Sun requesting that no photographs be published and (when told that it had been put on the website) asked that it should not be reproduced in print. However, no attention was paid to this request and the photograph was carried on the front page. In addition, the paper quoted comments and salutations written by Sebastian, clearly intended to be personal but which had formed part of his daily postings to his family. Besides printing the photograph from outside the Hotel des Vignes, the Daily Mail also published the photograph in skiing clothes and quoted from his blog (described as an online message to his parents). The Daily Telegraph also published the blog and the photograph from it. The immediate result was that the website had to be taken down although the record has been preserved for the families. In the meantime, what was described as packs of press descended on the Bowles family homes in London and Belgium, making enquiries in the area. In Belgium, the problem became sufficiently acute that the police had to be called (and had to return every half hour).
7.4
7.5
7.6
in order to protect the privacy of the Bowles family to such extent as is possible, and notwithstanding the fact that the information is, at least to a large extent, in the public domain and available, this Report will not publish references to their names, the precise articles or photographs or other family details
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Perhaps more understandably, but notwithstanding requests to be left alone (not the least being from the representative of Mr Bowles employers), British and other journalists politely approached them (once with flowers, sometimes apologetically) but all were then prepared to reduce their requests into writing and did so. 7.7 More was to come. Mr Bowles had a Facebook site which he believes had a privacy setting friends only on which he had published personal, family photographs to share with his family and friends. On 17 March, a number of these photographs appeared on The Mail Online: Mr Bowles had not given permission (not would he have given permission) for what he described as photographs of an obviously private, personal and family nature to be published. These photographs caused him to contact Giles Crown, a friend who is also a media lawyer. He spoke to the PCC whose on duty representative was sympathetic and asked him to put his concerns into writing; Mr Crown then wrote to the various editors (copied to the PCC) that afternoon. The letter made it clear that Mr and Mrs Bowles sincerely wish to be left to grieve the death of their son in peace without media intrusion and referred to various clauses of the Editors Code; particular emphasis could be placed on clauses 3(i) (privacy), 3(iii) (photographs in private places), 5(i) (intrusion into grief), 6(ii) (photographs of children without consent). The letter asked that the privacy of a memorial service be respected and that all private photographs be removed from all media websites; although without limitation, this particularly referred to the taking or publication of photographs of Sebastians younger sister. The letter suggested that human decency, Article 8 of the European Convention on Human Rights (ECHR) and the PCC Code all demanded that the privacy of the family be respected. There was no immediate response from the Daily Mail but a follow up email on 18 March (Sunday) elicited a reply on 20 March to the effect that the photographs had been taken from the Facebook page on the Friday without permission but that they were openly accessible and that, as the privacy settings had been increased, they would be removed. The photograph taken at the Hotel des Vignes of three members of the Bowles family (notwithstanding that one of them was clearly a child) had not been removed by the time that Mr Crowns statement was circulated to Core Participants. The Daily Mail now explains that the photograph had been obtained from a respectable picture agency (which it believed should have asked itself the correct questions) and that they were not aware that the photograph included Sebastians sister who was not identified in the caption, although she had, in fact, been cropped out of another photograph. The Sun similarly referred to the fact that the photograph from the online blog had been distributed by picture agencies and was clearly available which is why they considered it appropriate to publish it. By the time that Mr Crown spoke to the editor of the Daily Telegraph (who knew family and had been a fellow school governor with Mrs Bowles) he was told that he was late to the party and that he had held off publishing because he knew Mr Bowles although it was legitimate to publish a photograph that was in the public domain and had been taken in a public place. It was not only the press in the UK that published material of which complaint is made; Mr Crown has learnt that the Belgian Journalists Council (Raad) is investigating certain aspects of the reporting of the incident by the Belgian media particularly in relation to people in vulnerable positions, such as minors and victims and their families and that any identification must be weighed against the social importance of reporting.
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Mr Bowles is the first to recognise that the accident was a tragedy of national significance in Belgium and Switzerland; he had no objection to extensive media coverage of it and that Sebastians nationality provided an obvious focus for the UK press. His objection has been to the personal nature of the coverage and the intrusion. The way in which this story was reported undeniably raises issues under the Editors Code in relation to privacy, the discretion surrounding the reporting of grief and shock (particularly in relation to the reporting and photographing of such grief in children) and the extent to which it is appropriate to publish photographs or material such as that trawled from the school trip website which one would have thought would obviously not have been intended for public consumption. This raises the question of who should be considering these issues, the value of a complaint (the damage having been done and no regret being sufficient to remove the additional impact that the press coverage had) and the need for an enunciation of standards. Although I might have a clear view, I do not think it would assist if I sought to take the place of a regulator in this very topical case although it certainly says something about the practices of the press. The most important point, however, is that it is not in the least surprising that Mr Bowles does not pursue a complaint; his focus remains on the loss of his son. The matter was put clearly by Mr Crown in these terms:112 I would just like to try and make clear that [the Bowles] family have no wish to have a fight with the media in any sense. They gave evidence reluctantly because they felt it was the right thing to do. They are disappointed that with regard to such an immense tragedy they would have expected some greater restraint from the media in the way the tragedy was reported and in [Mr Bowles] view that wasnt the case. Just to emphasise, their over-riding desire [is] that their privacy is maintained as it is still, as you will understand, a very recent event and additional publicity at this point would greatly aggravate the familys [grieving].
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As much as any of the stories covered by this Report, this account underlines the very real dilemma faced by the press when balancing the respect that is owed to those who suffer almost unimaginable personal tragedy with which, in some way, they have to come to terms, and the legitimate public interest in an incident that has significance for everyone. I repeat the proposition that if nobody will review editorial decisions in the absence of a formal complaint, (that would require energy to deal with by someone who has far greater issues to have to confront it), is, in my view, a serious lacuna in our approach to the maintenance of standards.
8. recent events: royal photographs

8.1 At the conclusion of the hearings on 24 July 2012, I repeated that I would not hesitate to ventilate anything that happened over the months prior to publication of the Report, which I felt impacted on the work of the Inquiry. In the event, there have been a large number of stories which warrant attention and justify consideration as part of the Terms of Reference. On the basis that I have decided that it is not necessary or appropriate to hold further hearings or seek further submissions (save in response to letters issued under Rule 13 of the Inquiry Rules 2006), I do not intend to refer to most other than to comment that the argument that the Inquiry has had a chilling effect on journalism does not appear to have been borne out.
p113, line 24, Giles Crown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-MorningHearing-26-June-2012.pdf
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There are, however, two stories that are of such importance, or such value to the Terms of Reference of the Inquiry, they must be addressed in some detail even though the latter reveals no impropriety on the part of the UK press.
HRH Prince Henry of Wales

8.2 8.3 The first story that requires attention is the recent publicity surrounding the behaviour of HRH Prince Henry of Wales (Prince Harry), a 28 year old army officer and third in line to the throne. It is unnecessary to rehearse the circumstances in which, following the death of Diana, Princess of Wales in a road traffic accident (which occurred while she was followed by paparazzi photographers), the press agreed to respect the privacy of Prince Harry and his elder brother during their school years. It is equally unnecessary to outline the various stories that have been printed about him thereafter; nobody could suggest that he was not a public figure and there is no doubt that his conduct has and can legitimately generate questions the discussion of which is entirely in the public interest. The issues which recent events have revealed concern the extent to which he is entitled to any private life or privacy and the impact of publication of photographs on the internet. Having received plaudits for his work during the course of The Queens Diamond Jubilee and as an Olympic Ambassador, during August 2012, while on leave, Prince Harry went on holiday to a resort in Las Vegas; as usual, he was accompanied by personal protection officers. During the course of the holiday, on 21 August, he invited a group into the apartment which he occupied and, in their presence, is said to have played a game of strip billiards. However it arose, at least two photographs were taken of him naked, one of which showed him shielding a naked girl and another embracing the girl. The photographs are reported to have been taken on a mobile phone. The photographs were quickly sold to an American website TMZ.com and put on the internet; they were also published by the blogger Paul Staines on his Guido Fawkes blog based in Ireland. Equally quickly, contact was made by or on behalf of St Jamess Palace (for the Prince) with the PCC; this was followed up by a letter dated 22 August 2012, requesting circulation to managing editors so that the position of the palace was clear. The PCC circulated the letter, quoting the concern expressed but without commenting upon it. In the light of what followed it is important to set out what it says in detail: As we understand the position following a telephone call to St Jamess Palace this afternoon, a number of British newspapers have jointly purchased the photographs and have served notice of their intention to publish them both on-line and in their newspapers. They have asked what the reaction of St. Jamess Palace would be to such behaviour on their part. As we have already discussed with you, the photographs in question were taken on an entirely private occasion and in those circumstances there was a more than reasonable expectation of privacy. No matter of public interest (as those words are understood in English law) is raised by these photographs. The fact that they have appeared in another jurisdiction is meaningless. The only possible reason for publication of the photographs is prurience and nothing more. As such any publication would be a clear breach of Clause 3 of the PCC Code. We should be grateful if you would circulate this letter to the relevant managing editors of your members so that they are fully aware of St Jamess Palaces position and the fact that they entirely reserve their rights as to any further steps that they may take should publication take place.
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On 23 August, the entire British press respected the wishes of St Jamess Palace and the photographs were not published. However, The Sun created a mock up of one of the photographs, using its picture editor and a 21 year old undertaking work experience on its fashion desk (also described as an intern), both of whom, the caption reported, were happy to strip although the image, which had also been placed on its website, was later removed.113 Many newspapers blamed the effect of this Inquiry when asked why they did not print the photographs. Later that day, The Sun changed its mind and, in a mood described in The Sunday Times as jubilant, uploaded the images onto its website and published the photographs (one of which was on the front page) the following day. When the decision had been made David Dinsmore, the interim managing editor of The Sun, wrote to Lord Hunt, the Chairman of the PCC, to the effect that it was becoming increasingly perverse not to publish the pictures. The Sun published its own account of its reasons. Other titles joined the debate and were, in the main, supportive of The Sun; it is unnecessary to consider any but The Sunday Times. In the absence of any formal complaint from the Prince, the PCC has chosen to do nothing, explaining why it had taken that course. Each of these arguments repays detailed analysis not least for their failure to deal with the other side of the case which, however partisan the press is entitled to be, raises important issues for debate. The purpose of putting the argument is to ensure that the public have a fuller account of the competing arguments than might be received simply by reading the newspapers. The Editors Code of Practice
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Before going to the detailed arguments, it is worth setting out the relevant terms of the Editors Code of Practice, drawn up by editors and agreed by those who subscribe to the PCC (including The Sun). Paragraph 3 (headed Privacy) provides: i Everyone is entitled to respect for his or her private and family life, home, health and correspondence including digital communications.
ii Editors will be expected to justify intrusions into any individuals private life without consent. Account will be taken of the complainants own public disclosures of information. iii It is unacceptable to photograph individuals in private places without their consent. Note: Private places are public or private property where there is a reasonable expectation of privacy. There is an exception to this provision where the publication can be demonstrated to be in the public interest. That is defined in this way: 1. The public interest includes, but is not confined to: (i) detecting or exposing crime or serious impropriety. (ii) Protecting public health and safety. (iii) Preventing the public from being misled by an action or statement of an individual or organisation. 2. There is a public interest in freedom of expression itself.
Both the picture editor and the work experience intern were perfectly entitled to pose for this photograph if they wished: given the likely anxiety that a 21 year old girl on work experience might have to secure full time employment, the fact that she was asked or permitted to do so raises issues not dissimilar to those discussed in Part F Chapter 6 relating to pressure on staff
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3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest and how, and with whom, that was established at the time. 4. The PCC will consider the extent to which material is already in the public domain or will become so. ... 8.9 The legitimate questions which arise are: (a) Was the photograph taken in circumstances of privacy? (b) Does the Prince lose his right to privacy because he has invited to his hotel suite people whom he does not know? (c) Is there any basis for contending that the Prince consented to the taking of the photograph (there being no suggestion that he did) and, if he did not, is there a difference between taking the photograph (which the Code describes as unacceptable) and publishing it? (c) Accepting that there is a public interest in freedom of expression itself, was there any public interest in the publication of the photographs (rather than the story with the description of the photographs)? A more general question can also be posed about the Code. It is entirely understandable that a public interest can, in certain circumstances, defeat the rights to privacy enshrined in the Code (and, of course, Article 8 of the ECHR) and that freedom of expression is itself in the public interest (although that cannot defeat the privacy right in every case because that would make the provision meaningless). It is more difficult to see why the extent to which material is already in the public domain should itself create a public interest which permits publication. It might be that it ought to be cast as a separate question but, on the basis that the code is a statement of ethical good practice, it is open to question whether the ethical balance should be affected simply because others who do not hold themselves bound by such a code ignore its principles. The Suns letter 8.11 Mr Dinsmore raised seven points, not all of which address the questions set out above, but which it is worthwhile considering in turn. The first concerned the legitimate public debate. He said: The entire UK media including both print, online and television has reported on the fact and existence of these photographs. This has in turn generated a legitimate public debate as to the Princes behaviour. There is now a debate across the country as to whether such conduct is acceptable from the third in line to the throne who is increasingly taking on a more public and official role ... That debate should not take place in a vacuum. 8.12 The argument regarding the legitimacy of public debate is powerful but, in the context of this particular publication, of limited, if any, relevance. There is no doubt that the remit of his protection officers is an important issue with a legitimate public interest. Further, for the purposes of this argument, it is appropriate to assume that whether the Princes conduct is acceptable is also a matter of public interest (although a point made later in the letter about his position in the army appears somewhat specious). Such a debate, however, did not take place in a vacuum: what transpired and what the photographs revealed was graphically described in print. The debate did not need the pictures. The next three points can be taken together. The second and third concern the fact that the media had identified the website on which the photographs could be viewed, making
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the point that 77% of the public have access to the internet so that the photographs are in the public domain (which the PCC Code requires to be taken into account). The number of hits to the pictures, it is asserted, rose from 25.8 million to 160 million by 11:00hrs on the morning of 23 August (although how much of that is the consequence of the press coverage is another matter); the photographs were also on Facebook. It was argued that the suggestion (by the Palace) that the fact that the photographs have appeared in another jurisdiction is meaningless was to miss the point that the internet transcends jurisdictions. 8.14 The fourth point is the reverse of the third. The fact that the photographs are so widely available on the internet creates an issue for those who do not have access to the internet so that there is an unfair and inappropriate situation adversely affecting the ongoing debate in this country. Mr Dinsmore goes on: That situation cannot be allowed to continue in a debate of such importance where everybody should have equal access to the photographs in question and not just those who can access the internet. 8.15 These points utterly ignore a number of equally valid arguments. First, it is important to repeat that it is entirely possible to have the debate (however important it is) without seeing the photographs at all. Second, anybody who feels that it is necessary to see them (for whatever reason) is able to do so, for the vast majority of those without internet doubtless will know someone who has access, or could go to a library or to one of any number of places where access to the internet is possible. Third, and of particular importance, it ignores the fact that there may also be a large number of people who do not want to see the photographs or, even more likely, who do not want their children to see the photographs. To some extent, parents can control what their children can access on the internet: if they take their child into a newsagent, garage or supermarket or past a news stall the control that they must be entitled to exercise is lost. The fourth argument resonates across a range of issues. The fact that something is on the internet does not justify its publication in a newspaper. The internet is an uncontrolled space with material upon it which I anticipate The Sun would not wish to publish because it is pornographic, racist or offends one of the many other codes of decency to which most people aspire. Bob Satchwell of the Society of Editors put the point in this way:114 Of course, freedom of the press is important. But just because you can publish something doesnt mean that you should. 8.17 The fifth argument advanced by Mr Dinsmore is to challenge the assertion that the reason for publication of the photographs would be prurience and nothing more and then to repeat the first argument about the issues that arise while ignoring the ability to have the debate without sight of the photographs. The letter then goes on to assert: For that debate to take place in an informed light these photographs should be published in accordance not only with our Article 10 right to impart information but also in accordance with the general publics right to receive it. 8.18 The Article 8/Article 10 debate again requires an analysis of the public interest although special considerations attach to photographs in the field of privacy. ... As a means of invading
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as reported in The Times, 24 August 2012
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privacy, a photograph is particularly intrusive.115 In reality, it takes the argument no further forward. 8.19 Mr Dinsmore then cites a decision of the PCC from 2010 concerned with the magazine Loaded where a photograph had been given a wide circulation on the internet such that it was untenable to rule that it was wrong for it to be used in a magazine. This decision (part of the jurisprudence of the PCC) is itself open to criticism and is further discussed in the light of the response of the PCC and the further Royal story. Finally, Mr Dinsmore suggests that although the Prince is naked, the photographs do not show him in any situation of extreme personal embarrassment nor do they reveal any intimate details of his body. I am not sure of the basis on which Mr Dinsmore makes the assessment (if this is what he is saying) that these photographs are less invasive of the Princes privacy than they might have been and therefore justifiable or that they would not cause extreme personal embarrassment: it may not be without interest that the 21-year old who posed for the mock-up is reported to later to have tweeted lol 5 mins of fame #cringin. The Sun article 8.21 The full front page headline HEIR IT IS Pic of naked Harry youve already seen on the internet (inconsistent with the argument that the purpose of publishing the pictures was to show them to those who did not have access to the internet), goes on HEIR IT IS; WE FIGHT FOR PRESS FREEDOM, PRINT HARRY and Naked Vegas pics swept the world on web. Now its vital you see them here The Sun SAYS. The article goes on to assert that its readers have been prevented from seeing the pictures in print and later that the Press were still effectively banned from using the pictures so that millions of people who get their news in print or have no web access could not take a full part in that national conversation because they could not see the images. It also argues that the Prince had compromised his own privacy. The paper ends: It is absurd in the internet age newspapers like The Sun could be stopped from publishing stories and pictures already seen by millions on the free-for-all that is the web. 8.22 Quite apart from the merits of the decision, this article raises other issues of concern. The request from the solicitors acting on behalf of St Jamess Palace is set out at length above. It does no more than respond to a request for their reaction to the stated intention to publish and state their position. It does not effectively ban their use. It does not prevent anyone from seeing them. Neither is the issue one of press freedom: the press (including The Sun) were free to do what they wanted and to publish what they wished. The Palace only referred to the Editors Code of Practice to which The Sun voluntarily subscribes. The only mechanism that could have prevented The Sun from publishing the photographs was an injunction obtained from the High Court and there is not the slightest suggestion that such relief was even sought. Yet that is not how the story was told. Finally, reliance was placed on the fact that the pictures were on the free-for-all that is the web. Quite apart from the other material available on the web that The Sun would not print, the point of the Editors Code is that newspapers subscribe (or are supposed to subscribe) to higher standards than free-for-all which does not put a bar in place at all. Further, if that is the answer, it is a real risk that a determined effort could be made to put a story
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Douglas v Hello! Ltd [2006] QB 125
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or a photograph that offends the Code onto the internet through an intermediary in order to demonstrate that it is then in the public domain and, thus, can be printed. It is open to question whether such a free-for-all is in the public interest. Other Comment 8.24 The Sunday Times (owned, of course, also by NI) published an editorial on Sunday 26 August under the headline THE SUNS BRAVE LONE STAND FOR PRESS FREEDOM, saying that Prince Harry had put the issue of press freedom squarely on the agenda and asserting that other newspapers did not publish because of the atmosphere created by the Inquiry. It cited many occasions when British newspapers had been deprived of information freely available to counterparts overseas including the abdication crisis and the Spycatcher affair, although it recognised that people in Britain were not being deprived of anything but were just not allowed to see it in their newspapers. The leader goes on: Critics said The Suns public interest arguments were a convenient mask for commercial motives. It is a spurious criticism. Newspapers are fighting for their lives in the toughest of economic climates combined with technological changes that weigh heavily against traditional print. If they are not commercial they will die and they cannot let the internet become the prime forum for communication. But that was not the sole purpose of publishing. There is a dangerous coalition forming of aggrieved film and television stars, out-of-sorts Labour politicians and bien pensants who would happily bring much greater regulation and censorship to the press. They believe they should decide what is in the public interest and not the millions who buy the red top papers. To publish these pictures was a defiant gesture to those would-be moral arbiters. Of course many images and much content on the internet will rightly never find their way into our newspapers for the good reasons of taste, accuracy and relevance. But this was different. It was of enormous interest to the public and it was in the public interest to know how the third in line to the throne really behaves. The public can then decide how it regards him. The bigger issue is the future of the press. If it is gagged and stifled it will die and the country would be hugely poorer for it. John Wilkes fought long and hard for freedom of expression, including publishing what was regarded as pornography at the time. Lord Justice Leveson, it is hoped, understands that. It was right to publish and not be damned. 8.25 This is a remarkable article. On the subject of the story, there is no discussion of the Editors Code of Conduct, of any right that Prince Harry might have to privacy or any public interest in publication of the photographs. Given the approach of the Palace to the PCC, there was no question of the press being gagged, of an attack on press freedom or an attempt to hide the story (as in the abdication). The commercial issues facing the press are understood but nobody has ever suggested that the only way the problem can be solved is by abandoning the Code of Conduct. As for the millions who buy red-top papers, The Sunday Times published the result of a poll to the effect that 61% of respondents thought that The Sun was wrong to publish the photographs and 68% thought that the Princes behaviour was acceptable. As for censorship, not a single witness either orally or in writing sought censorship. Everyone recognised the importance of a free press and the benefits of public interest investigative journalism. No one suggested they should be the arbiters of press practice: all wanted the press to follow the letter and spirit of a code for which the editors had responsibility. That is
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not to say that they believed in the present operation of the PCC or considered that the Code could not be improved but that is not the criticism that the editorial makes. 8.27 It would be possible to examine the coverage of other titles and the selective reporting of opinion from politicians and others. It is a matter of comment that, with the exception of the Independent on Sunday, almost all the national Sunday titles took the same view as The Sunday Times. The press are, of course, entitled to a partisan view but it is difficult to see how it represents its readers if the majority opinion is not even expressed or explained. The inference may be that the agenda it was following was its own. The PCC 8.28 The way in which the PCC generally responds to complaints has already been analysed at length.116 On the other hand, this very recent example of the approach taken by the PCC, following the conclusion of all the evidence heard by the Inquiry, is extremely illuminative. Furthermore, there are sufficient specific features of its reaction which it is worth considering in detail and which justify (or at least excuse) what might be a measure of repetition. Following contact from St Jamess Palace, the story continues with the head of complaints and pre-publication services. She passed the letter from the solicitors on to the editors and invited any discussion about code issues. It is not suggested that she was approached by The Sun for advice pre-publication or at all (although the letter setting out their defence was sent before the photographs were, in fact, published). It has since been reported that the PCC did, in fact, provide advice to other editors, on request, about the relevant issues. Meanwhile, after The Suns publication of the photographs, the PCC received around 3,800 complaints that the photographs breached clause 3 of the Code: by the time of their regular meeting, no formal complaint had been made by or on behalf of Prince Harry. In a statement, the PCC goes on to observe: The Commission would be best placed to understand these issues including the circumstances in which the photographs were taken with the formal involvement of Prince Harrys representatives. In addition, an investigation by the Commission, without consent, would have the potential itself to pose an intrusion. The Commission is grateful to the many members of the public who have contacted it to express concerns about The Suns coverage but has concluded that it would be inappropriate for it to open an investigation at this time for the reasons above. 8.31 At the conclusion of its statement, the PCC comment that it would be wrong to preempt the conclusions that it might reach were a complaint to be pursued but it notes that the question of how to apply the privacy provisions in relation to material freely available on the internet has been faced on a number of occasions in decided cases, observing that each decision is reached only after a detailed examination of the facts of the case. It then makes the final comment (to which reference is made later) that it will publish guidance for publications on these matters. The upshot is that although the majority of those polled (as reported in The Sunday Times) felt it wrong to publish the photographs and a substantial number of members of the public felt sufficiently strongly about the matter that they complained to the PCC, the PCC will say nothing about the matter, one way or the other, unless Prince Harry personally complains.
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Part D Chapter 2
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This is notwithstanding the fact that his views are well known: they are reflected in the letter that solicitors wrote on behalf of St Jamess Palace prior to publication. The PCC is hardly enhancing its reputation as a definitive arbiter of press standards by taking this course. 8.33 It may be the case that the PCC might have been or be better able to understand the issue from the perspective of the Prince if he provided further details of the circumstances in which the photographer came to be in his suite and was not prevented from taking the photographs; however, to ask him to do that would, undeniably, constitute further intrusion by providing information not presently available and which would all then be deployed in public. The PCC argues that investigating without the consent of the Prince would have the potential itself to pose an intrusion but The Sun had to make its decision based on the material then in the public domain. If he were to have complained, it is not difficult to see the paper seeking to put questions to St Jamess Palace about these matters in order to provide some additional arguments not available at the time. In the context of this case, that would undeniably be further intrusion. There could be circumstances, perhaps concerned with whether or not the subject of the story has set it up, that to investigate without a complaint might constitute an intrusion, but there is no suggestion of that sort of circumstance in this case. Here, the question is not whether there is a public interest in the facts of the story and St Jamess Palace has not sought to contend to the contrary. The only question relates to the publication of the photographs. In that regard, there is sufficient information available in the public domain and the stance of St Jamess Palace is quite clear from the letter which was circulated. If the PCC is concerned about standards and the Editors Code of Conduct, there is nothing to stop it analysing the issue based on the material that was available to The Sun at the time: in doing so, everybody would know where the PCC stood on the matter. As it is, the fact that at least 3,800 members of the public felt that it was appropriate for the PCC to look at this complaint is deemed irrelevant but, in reality, by saying (and doing) nothing, the PCC will be seen as endorsing the approach of The Sun whether or not it does so. The Sun having got away without adverse adjudication (which is what the editors say they most fear) will be taken as a green light and a precedent for the future. Issuing guidance (which is what the PCC identifies that it intends to do drawing on its decisions in previous cases)117 is precisely the effect of considering the facts in this particular case. Indeed, Mr Dinsmore throws the gauntlet down to the PCC in the sixth argument in his letter of 23 August when, in relation to its decision in the case involving the magazine Loaded, it ruled against the complaint on a situation very similar to this (where material had already been given a wide circulation) and asked the PCC to distinguish that complaint from this. Because of the further story involving the Duchess of Cambridge, this general point is analysed below. The purpose of recounting this story is not to reach a view, one way or the other, about the publication of these photographs. In the context of this Inquiry, what this episode illuminates is the adequacy (or otherwise) of the mechanism for maintaining the standards to which the press loudly asserts it adheres. It has since been announced that, in the light of his deployment to Afghanistan, Prince Harry will not pursue a complaint but there was, in truth, no point in St Jamess Palace making a complaint to the PCC. If such a complaint was rejected, it will signal the very free for all based on what is available on the web; if one had been made and upheld, it is abundantly clear from the various press reports that followed the publication that the adjudication will be rejected and blamed on what is said to be the effect of the Inquiry. In truth, the moment has been lost and the right to publish effectively endorsed without the
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On 15 November 2012 the PCC published guidance, http://pcc.org.uk/news/index.html?article=ODEwNw==
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contrary argument having been analysed. To say that guidance will be issued in the future does not carry the issue any further.
HRH The Duchess of Cambridge

8.37 The story of Prince Harry was quickly overtaken by a different story which evinced a very different reaction. On 14 September 2012, a French magazine, Closer, published photographs of HRH The Duchess of Cambridge sunbathing topless taken by a paparazzo with an ultra long lens while she was on holiday in a private chateaux belonging to Viscount Linley in Provence. It is said (and, having regard to the length of the lens required, doubtless entirely accurately) that the photographs can only have been taken from a considerable distance away. The publication was followed by republication in the Irish Daily Star (much to the annoyance of Mr Desmond whose Northern and Shell company is a part owner of the paper) and in other newspapers and magazines. The photographs are on the internet. The press in the UK universally condemned the publication of these photographs as a gross breach of the privacy to which the Duchess was entitled. The Sunday Times118 published an editorial identifying a contrast between the photographs of Prince Harry (when he invited people into his hotel suite for his naked antics and in respect of which he rightly did not complain) and these photographs (of a young couple on a very private holiday so that William and Catherine have rightly resorted to the law) although noting that they were freely available on the internet within hours. The editorial also said: Editors of British newspapers did not need the threat of privacy laws or even Lord Justice Levesons inquiry to know not to publish these pictures. When they were hawked around Fleet Street they were met with a cool response. It was a case of selfregulation working; the Editors Code specifically prohibits photographing individuals in private places without their consent. Newspapers in Britain in any case knew they would face a readers revolt if they dared to publish. 8.39 The language of this editorial is revealing. The first article talks about press freedom and defiant gestures with the public having the right to know how the third in line to the throne behaves. The latter recognises that photographing individuals in private places without their consent is specifically prohibited and that newspapers would face a revolt if they dared to publish although I am sure that the editorial was not making the point that the decision not to publish was because the ethical and commercial considerations ran in tandem. In the case of Prince Harry, there was a story which, in the public interest could be told; in the case of the Duchess, there was not. In both cases, what is at issue is the publication of photographs by editors bound by a Code of Conduct and the relevance of the fact of their publication on the internet. The relevance of the internet 8.40 It is necessary to return to the reaction from the PCC and the reference in its statement to the internet. Following its decision not to launch any investigation into the publication by The Sun of the photographs of Prince Harry without his consent, the statement went on: It would be wrong to pre-empt the conclusions the Commission might reach were a complaint to be pursued. Nonetheless, the Commission notes that the question of how to apply the terms of Clause 3 (Privacy) in relation to material that is freely
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16 September 2012
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available on the internet is one that it has faced on a number of occasions in recent years, including in the cases of Mullan, Weir & Campbell v Scottish Sunday Express (2009); A Woman v Loaded (2010); Minogue v Daily Mirror/Daily Record (2010); and Baskerville v Daily Mail/The Independent on Sunday (2011). In each instance it reached a decision only after a detailed examination of the facts of the case. 8.41 The PCC is not, of course, bound by the system of precedent that operates within the common law. However, it is obviously important that there should be consistency of decisions provided, that the decisions are truly on point, relevant and not clearly distinguishable. Not surprisingly, none of the cited cases are entirely relevant because none concern members of the Royal Family whose activities, however much in keeping with what might reasonably be expected of young people when relaxing in private, will attract attention if likely to titillate the prurient. Three of the four cases concerned material put onto social networking sites (and, thus, it was argued into the public domain) by the persons affected. In all three (two of which were rejected), the PCC referred to the extent to which it was acceptable to publish information taken from such websites even if intended only for a small group of acquaintances. In the one complaint upheld (Mullen and others), three survivors of the Dunblane shooting some 13 years earlier had put material about themselves and their activities onto a website; this information was then published alongside photographs although efforts had been made over the preceding years to shield them from publicity. The PCC held they had done nothing to warrant media scrutiny, images (even if publicly available) were taken out of context and presented in a way designed to humiliate. The other two cases involving social networking sites can be summarised in this way. The first (A Woman v Loaded) concerned photographs of her breasts which she had placed on her Bebo site when she was 15 but which had since been uploaded onto the internet along with her name, having been easily accessed by Google search. The magazine had published a piece discussing the fact that the material was already widely used in this way by others. The PCC considered that the fact that she was then 15 at the time of the photographs raised issues of taste but as she was an adult at the time of this publication, the additional protection available for children no longer applied. Given that the additional public interest required in relation to material covering children is, in part, to protect them against themselves when they are not old enough to appreciate the consequences, it is difficult to see why the fact that she was no longer a child should have prevented the higher standard being applied: that is not to the point in this case. What was decided was that because the information in the same form was widely available, republication did not breach the Code. The second case (Baskerville) concerned material written by a civil servant relating to her employment which she had posted on Twitter anticipating a small circulation to her followers but failing to take account of the ability to retweet and so reaching a far wider audience. Having decided that there was a public interest (the wisdom of civil servants using social media platforms which could give rise to claims of conflict with professional duties), notwithstanding the distress caused, no breach of clause 3 of the Code was established. The third case is nearer in one sense (because it concerns a famous personality) but further away in another. Dannii Minogue complained that her pregnancy was reported prior to the 12 week scan. The Daily Mirror and the Daily Record sought to justify the breach of the rule forbidding such publication on the basis that the information was available the previous day on a blog and on the Sydney Morning Herald website. It was argued that the news was either in or not in the public domain and given these reports had ceased to be private. The PCC ruled the references in the blog and the website were speculative and that the purpose of
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having regard to the extent to which information had previously appeared was common sense for, if it were otherwise, reference on-line would represent automatic justification for publication. This complaint was upheld. 8.46 Based upon A Woman v Loaded, it might be thought that substantial dissemination of the material is sufficient to trump any other claim to privacy: that is precisely what Mr Dinsmore argued. He would doubtless point to the fact that Prince Harry was not a child; he effectively argued that the fact that there is no basis for suggesting that he had encouraged or consented to the taking or publication of the photographs was more than met, first, by the public interest in his behaviour and, second, by their widespread publication on the internet and elsewhere. The reality is that these cases are not truly comparable. As is patently clear, anything that any member of the Royal Family does will always attract attention and if widespread publication trumps any right to privacy, then there is no protection at all. Paparazzi will seek to obtain what photographs they can; someone, somewhere will be only too pleased to publish them and, if the Code was construed in that way, the door would be perpetually open to any title then to publish without being in breach. However, that is not the case that the press mount. Nobody at all has suggested that publishing the photographs of the Duchess of Cambridge would be anything other than a breach of the Code, notwithstanding the widespread availability of the images in other jurisdictions. So, at least for the Royal Family, widespread availability of an image on the internet on its own is not sufficient. There has to be some other public interest in publication of that image in order to justify it. For the Duchess, there clearly is not. But that equally means that playing the card of widespread availability is not good enough in relation to the Prince Harry photographs either, particularly when the public interest points that arise from the Las Vegas holiday do not depend on sight of the photographs. Nor can a distinction be drawn between the paparazzo who took the long lens photographs and whoever sold the mobile phone photographs in Las Vegas: both did what they did for money. True, the paparazzo was not known about and had not been trusted not to betray the confidence which followed the invitation to visit Prince Harry in his suite, but it is difficult to argue that this is not a distinction without a difference. It is worth repeating the argument published in The Sun newspaper: It is absurd in the internet age newspapers like The Sun could be stopped from publishing stories and pictures already seen by millions on the free-for-all that is the web. 8.51 Given that this would apply equally to the photographs of the Duchess, this alone is not good enough. Neither is the argument that it is up to the editor to exercise his judgment.119 In one sense, that is always true; but such decisions must be taken within the boundaries of a clear and effective code: that is what it is for. Irrespective of the rhetoric in the press, this is not about censorship or banning anything; it is not about freedom of the press; it is not about statutory regulation. It is not about the editors being forbidden to publish the photographs; St Jamess Palace must be entitled to express its own view without being accused of having taken any of these draconian
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although it is to be noted that Northern and Shell which is a part owner of the Irish Daily Star issued a statement expressing its disappointment that the decision to publish had been taken without reference to the company or to Richard Desmond. That raises a question about the role of proprietors in editorial decisions but where issues of reputation arise, different considerations may apply
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measures. Whatever system of press regulation is in force, ultimately, in this country, any editor will be free to publish what he or she believes should be published. What it is about, however, is maintenance of standards and the requirement that an editor is held to account by someone for the decisions which have been made, based on a Code that has attracted the confidence and general approval of editors and commands the confidence of the public. Even a complaints handling mechanism resolves complaints made by the public when it is not necessary to obtain further details and there is no additional intrusion beyond that which is already in the public domain. 8.53 Neither is this a case simply about freedom of expression. The Royal Family are, of course, in the public eye and its members will be held to account for what they do. But if society wants them also to mix with the public and in the real world, they have to be given the space to do so and their right to have a degree of privacy (less than that available to ordinary members of the public but more than at a level that is vanishingly small) must also be recognised. Precisely where the line is to be drawn is not a decision for the Inquiry to make. But decisions such as this have to be made by a body that is prepared to see the entire picture from every perspective. The decision requires balance and, perhaps, rather more balance than has been afforded to the issue in the discussion that the press has initiated and conducted. This does not mean that photographs will not be available in other jurisdictions across the world, or that information will not be available about what has happened: there is no news blackout and the parallel with the Abdication crisis simply does not withstand examination. To that extent, therefore, the Royal Family and anyone in the public eye will have to be aware of what can happen and take steps accordingly. But if the press in this country do aspire to behave ethically and in accordance with standards that they have agreed, it does mean obeying those standards consistently and not only when it suits them or when it is commercially convenient to do so. Otherwise it is a free for all.
8.54
Other events
8.55 These are not the only stories that have been published in the period since the Inquiry has concluded that could be the subject of comment. Watching the press, as it was clear the Inquiry intended to do, there have been other articles and photographs that have attracted attention and raised concerns about breach of privacy without any apparent justification based in the public interest. To start to analyse further stories and further examples is unnecessary although it is worth observing that what has been happening seems, at least in my judgment sufficient to undermine the criticism that the Inquiry has chilled press activity.
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Chapter 6 CritiCisms oF the Culture, praCtiCes and ethiCs oF the press

1. Introduction
1.1 The case studies set out in the previous Chapter provide examples of unacceptable press practices. The purpose of this Chapter is to set out the broader evidence seen and heard by the Inquiry which illustrates that those case studies do not represent aberrations of the press, but fit within a broader context of a culture (albeit a minority culture) of unethical and unlawful press practices. Not least given the continuing availability of all of the evidence online, it would not be worthwhile for this Chapter of the Report to approach each witness in sequential fashion, summarising his or her testimony before moving to the next. Such an approach would fail to do justice to the evidence in the context of an Inquiry examining the culture, practices and ethics of the press. Instead, the evidence will be examined thematically, in the search for possible trends and generic issues. Having now heard and carefully considered all the evidence, it is much easier to discern these trends than it was when the evidential picture was unfolding at pace from the start of Module One. In reaching the conclusions which are set out below, all the evidence that the Inquiry has received (whether presented orally or only in writing) has been considered and taken into account. Furthermore, care has been taken to differentiate between those lapses in standards which should be envisaged as isolated failings which do not exemplify any wider cultural issue, and those which should properly be understood as indicative of a pattern or theme. As previously explained, distinguishing between these two categories depends principally on a qualitative assessment of the evidence (viewed both in its own right and in the context of all the evidence the Inquiry has received), but also, albeit to a lesser extent, on a quantitative one. The Chapter begins, in Sections 1 7, by looking at the evidence heard by the Inquiry of a cultural indifference within parts of the press to individual privacy and dignity. That broad theme encompasses evidence that parts of the press have used unethical and/or unlawful means to access private information, including phone hacking, blagging, email hacking, theft, and covert surveillance. It also encompasses evidence that newspapers have published obviously confidential information without any public interest in doing so, have harassed subjects of stories and their families, have been insensitive in investigating and reporting death or tragedy, and have failed to have regard to the high level of protection appropriate to children. Section 8 then examines a broader critique: a complaint that the press, or parts of it, fail to represent women and minorities fairly. This critique is not related so much to representations of individuals as the representation of whole classes of people. Section 9 then considers the extent to which deliberate or reckless inaccuracy is a cultural or systemic problem within parts of the press. Associated with that theme, Section 10 examines the issue of payments for stories, and assesses the extent to which the widespread practice of offering financial incentives for stories might incentivise inaccuracies and/or encourage breaches of privacy.
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1.2
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Chapter 6 | Criticisms of the Culture, Practices and Ethics of the Press
1.7
Sections 11 and 12 examine the way in which the press responds to critics and complainants. Together they consider the evidence that the press, or parts of it, are hostile to complainants, use attack as the best form of defence, and seek to avoid giving justified apologies or corrections due prominence, if they are given at all. The evidence deployed in this Chapter may be relevant to more than one of the headings or categories set out below, because they overlap. Accordingly, even if one part of the evidence may have been expressly referred to only once, it may well have informed more than one conclusion.
1.8
2. lack of respect for privacy and dignity

2.1 One of the main complaints advanced by those who testified during the first two weeks of evidence, and subsequently, was that a cultural strand exists within the press betraying an unethical cultural indifference to the consequences of exposing private lives, and a failure to treat individuals with appropriate dignity and respect. This was, in essence, an overarching complaint which encompasses many of the criticisms addressed below. Phone hacking, blagging, the widespread use of covert surveillance, harassment, and the publication of private and confidential information all reflect, to varying extents, this cultural indifference. The experiences of the McCanns, the Dowlers, Christopher Jefferies and Max Mosley, already discussed in some detail above, also exemplify this indifference. However, these high profile examples were by no means exceptional, nor were all or predominantly concerned with the practices at the News of the World (NoTW). The Inquiry heard evidence from numerous public figures and private individuals alike, who were victims of a tendency within sections of the press to treat people without respect or dignity and to publish private information without regard to the consequences of, or public interest in, doing so. The singer Charlotte Church gave evidence relating to the exposure of the private lives of her and members of her family over the course of more than a decade. From the age of 12 she was the subject of intense press scrutiny. She spoke of her experiences of being door-stepped and stalked by press and paparazzi,1 of finding evidence of a secret camera installed in her garden hedge,2 and of her regular pursuit by press and paparazzi whilst at home and abroad on holiday.3 While a child, titles regularly published details about Ms Church that can be described as mere tittle-tattle: reports of her weight gain, drinking, or smoking.4 But more intimate details of her private life were published as well: when she was 17 years old, a newspaper published details of her sexual experiences with an ex-boyfriend, and paid the ex-boyfriend for the story.5
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p4, lines 7-12, Charlotte Church, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-28-November-20111.pdf 2 p12-13, Charlotte Church, ibid 3 pp4-5, lines 17-12, Charlotte Church, ibid 4 p7, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-CharlotteChurch.pdf 5 pp33-34, lines 19-5, Charlotte Church, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-28-November-20111.pdf; p11, para30, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Charlotte-Church.pdf
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2.5
After attaining majority, Ms Church continued to suffer from press intrusion. Three examples from the evidence she gave of intrusive and distressing coverage were particularly notable. First, Ms Churchs pregnancy was revealed by The Sun, despite the titles knowledge that she was still in her first trimester of pregnancy, and notwithstanding a request from Ms Churchs PR agent that the title not publish any details until the end of the first trimester. Ms Church spoke of the upset that publication had caused to her and her family: her parents were unaware that she was pregnant until the article was brought to their attention.6 Second, as part of its coverage of an alleged plot to kidnap Ms Church, the NoTW published details sufficient to identify Ms Churchs address, despite express requests to refrain from doing so.7 The publication of those details caused Ms Church untold anxiety, and potentially placed her at an increased risk from the very plot on which the title was reporting. The third example was, perhaps, the most egregious, given that the published story related not to Ms Church herself, but to her parents, who were, to all intents and purposes, private people with no public life or persona. On 11 November 2005, the NoTW published a story entitled Churchs three in a bed cocaine shock next to a picture of Ms Church. Despite the fact that the juxtaposition of headline and photo gave the (probably deliberate) impression that the allegations in the story related to Ms Church herself, they in fact related to her father. The content of the story was deeply intrusive and contained intimate details of the private lives of both Ms Churchs mother and father. The story began: Superstar Charlotte Churchs mum tried to kill herself because her husband is a love rat hooked on cocaine and three-in-abed orgies.8 Whether the substance of the article was true or false, there was no conceivable public interest in the publication of this story which had a profound effect on Ms Church and her family.9 As Ms Church noted:10 It was basically just totally sensationalised, and whether partially or wholly true, I just really hated the fact that my parents, who had never been in this industry apart from in looking after me, were being exposed and vilified in this fashion. It just had a massive, massive impact on my family life, on my mothers health, which the News of the World had reported on before then, on her mental health state and her hospital treatment So they knew how vulnerable she was and still printed this story, which was horrific. And I just I cant think of any justification for printing a story like that.
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The justification, according to Paul McMullan, was circulation. The story interested the readership and that, for him, was justification enough for publication.11 Ms Church has, to some extent, courted press attention. As part of her promotional obligations, she appears in the press, on radio and on television and has spoken about her relationships and private life in this context. In addition, she has chosen to appear in magazines such as OK! and Hello with her children. However, on any construction of the Editors Code of Conduct, those facts alone cannot justify the persistent and intrusive level of press interest to which she has been subjected, nor can it justify the publication of private information without regard to the public interest or the consequences of publication.
pp14-17, lines 17-3, Charlotte Church http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-28-November-20111.pdf 7 pp19-20, lines 20-11, ibid 8 p12, para 26 & 27, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-CharlotteChurch.pdf; pp21-22, lines 6-16, Charlotte Church, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Transcript-of-Afternoon-Hearing-28-November-20111.pdf 9 pp22-24, lines 17-20, Charlotte Church, ibid 10 pp22-23, lines 18-7, Charlotte Church, ibid 11 pp42-43, lines 24-12, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-29-November-2011.pdf
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2.10
In any case, as Ms Churchs evidence showed, an appearance in a magazine such as OK! or Hello does not necessarily indicate a desire to expose her entire private live or the lives of her family to public view. In her case, her evidence was that her decision to appear in these magazines with her new-born baby was specifically taken to control the release of pictures of her child in a context where up to six paparazzi were camped outside her home during and after the home-birth of her daughter.12 Moreover, even if it were the case that Ms Church had, by her previous conduct, relinquished any reasonable expectation of privacy, she had not done so on behalf of her parents. Ms Churchs evidence bore similarities to that given by the writer JK Rowling. She too has been subjected to intense press interest for more than a decade, ever since the publication of the first Harry Potter book. She also complained of door-stepping, pursuit by paparazzi, and the unjustified publication of details of her private life and that of her family.13 Ms Rowling explained that shortly after the publication of the first Harry Potter book, she was literally driven out of the first house [she] had ever owned (which faced almost directly onto the street) because of journalists banging on the door, questioning the neighbours and sitting in parked cars immediately outside the gate.14 Ms Rowlings primary complaints related to the privacy of her family and the privacy of her home: an assessment of her evidence shows that parts of the press have shown indifference to, or disrespect for, both. In respect of her children, Ms Rowling has been consistent and clear since she first came to public attention that she did not want her children exposed to public view. There can be no doubt that the press has been fully aware of her stance. She has refused requests to be photographed with her children for publicity purposes, she has avoided taking her children to any events where photographers are likely to be present, and she has refused to discuss her children in interviews. Where photographs of her children have been published, she and her husband have taken legal and other action to prevent republication.15 Nonetheless, Ms Rowlings evidence suggested that parts of the press have shown a casual disregard of her desire to protect her childrens privacy. Ms Rowling provided numerous examples to illustrate the point. In 1998, after she had refused requests to allow photographs of her daughter, press photographers began to gather outside her home in an attempt to take such photos.16 Periodically, over the following decade, photographers continued to congregate outside her home and to pursue her, and her family, in the UK and abroad. In 2001, OK! magazine published a photograph of her eight year old daughter in a bikini, while on a secluded beach in Mauritius. The photograph, taken with a long lens camera, led to a PCC adjudication, in her favour, that Ms Rowling hoped would lead to a change in the behaviour of press photographers.17 Instead, she recalled no change at all. In 2003, after the birth of her son, Ms Rowlings house was besieged by press photographers. As a consequence she
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pp25-26, lines 11-14, Charlotte Church, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Afternoon-Hearing-28-November-20111.pdf 13 p5, line 11; p38, line 25; pp46-47, lines 24-12; p58, line 21; p26, line 14; p78, lines 4-11; JK Rowling, http://www. levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Afternoon-Hearing-24-November-20112.pdf 14 p2, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-JK-Rowling2.pdf 15 p7, para 14-17, ibid 16 p6, para 11, ibid 17 pp49-54, lines 1-12, JK Rowling, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Afternoon-Hearing-24-November-20112.pdf; p7, para 19-22, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Witness-Statement-of-JK-Rowling2.pdf
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largely confined herself to her house and, on the occasions where she left the house, would cover her daughter in a blanket to preserve her privacy.18 Despite her efforts at this time, intrusive photographs of her son and daughter were both taken and published.19 2.16 In 2005, after a photograph of her 18 month old son was taken with a long lens and published in the Sunday Express, Ms Rowling issued proceedings against Express Newspapers Limited and the photo-agency responsible for the photograph, Big Pictures Limited. After lengthy litigation, the Court of Appeal found that the taking and publication of the photographs were an arguable breach of his Ms Rowlings sons right to private life.20 But in the period between issuing the claim and receiving judgment from the Court of Appeal, other titles continued to take and publish intrusive photographs of her children: the Daily Mirror published a photograph of her daughter as a baby,21 and The Sun and the Daily Mail published long-lens photographs of her three children, taken while the family were on holiday in the USA.22 Clause 6 of the PCC Code requires editors not to use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a childs private life, but it appears that in the case of Ms Rowlings children, this was the only justification for the pursuit and publication of their photos. In the same way as Ms Church objected, in particular, to her career choice impacting on the privacy of her parents, Ms Rowling objected to her fame impacting on the privacy of her children. She said:23 Any other 18 month old child can expect to be pushed along the street in their buggy without the paparazzi taking surreptitious photographs of them for the purpose of publication in a national newspaper. I have to question why the position should be any different for my son. The only difference that exists is that my son has a mother who is well known and is of interest to the press. 2.18 Ms Rowling explained the impact on her children of more than a decades intrusion by press photographers as follows:24 The actions of the paparazzi have had a real impact on my children. My eldest daughter regularly became upset at being accosted in this way and, as is the way when a child sees his or her parents upset, was also upset because I was upset. The requirement to hide under blankets in cars so as not to be photographed was also very unsettling and stressful for her. As for my son, despite being just less than two years old at the time of the litigation concerning him, he was confused by the constant presence of photographers outside his home and unsettled by the tension of the adults around him, in particular as they tried to shield him from being photographed. 2.19 Ms Rowlings complaints about harassment by paparazzi and other press photographers were echoed by several other witnesses to the Inquiry; their evidence is dealt with in more detail below. However Ms Rowlings complaints were not limited to photographers. Journalists too used intrusive methods to obtain stories about Ms Rowling and her children. In one of the
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18
p47, lines 2-14, JK Rowling, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-24-November-20112.pdf; p14, para 29a, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Witness-Statement-of-JK-Rowling2.pdf 19 p14, para 29a, ibid 20 Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 21 p22, para 43 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-JK-Rowling2. pdf 22 p18, para 30a, ibid 23 p16, para 29d ibid 24 p20, para 32, ibid
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more disconcerting examples provided, a journalist arranged for a letter, addressed to Ms Rowling, to be placed in her five year old daughters schoolbag.25 Ms Rowlings response was one of justifiable anger at the invasion of her daughters privacy. 2.20 Ms Rowlings second significant complaint related to the publication of details of her address and private information about her home, with apparently no regard for the consequences of such publication, and no regard for any public interest in doing so. In January 2005, the Scottish Daily Mail published the full address of Ms Rowlings Scottish property.26 In July 2005, the Daily Mirror published the street names and photographs of three of her properties in England and Scotland, and published the locations, and details, of security features that had been installed.27 Understandably concerned by the publication of information that was not only private, but which also jeopardised the security of her home, Ms Rowlings representatives complained to the PCC. The complaint was upheld in part.28 In 2007, the Daily Mirror, the Daily Record, and the Scottish Mail on Sunday published photographs and information about Ms Rowlings Scottish home, including descriptions of the property, sufficient to identify its precise location.29 Once again, Ms Rowling complained to the PCC. That complaint was rejected on the grounds that the information published was already available in the public domain.30 It is not necessary to revisit that ruling here, but it is notable that in considering the complaint, the PCC apparently gave no consideration to the public interest in the further publication of this information, and it is difficult to see what real justification there might be. In the context of Ms Rowlings clear and unambiguous desire for privacy, and where Ms Rowling had previously had a complaint upheld for the publication of very similar material, the decision of some titles to publish information which revealed her address, demonstrates what appears to be a casual disregard for her privacy, and a carelessness with regard to the consequences of publishing private information. It is consistent with the evidence in relation to her attempts to protect the privacy of her children: with regard to both the privacy of her children and her home, sections of the press chose to ignore the fact that she had consistently and unequivocally sought to protect her privacy. The evidence provided by the actor Steve Coogan shed further light on a tendency within sections of the press to treat individuals without dignity or respect. Mr Coogan has a personal life which, by his own admission, may not command the moral approval of all.31 However, his evidence was that he had never sought to set himself up as a model of morality, nor had he sought fame as such. Instead, he has pursued a career as a comedian, writer, and actor and it is that choice alone which has brought him into the public eye.32 While it may be correct that some people in the public eye trade on their wholesome image or status as a family man, that is not the case with Mr Coogan.
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pp45-46, lines 6-2, JK Rowling, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-24-November-20112.pdf 26 pp65-66, lines 12-2, ibid 27 pp66-67, lines 14-21 ibid 28 Rowling v Daily Mirror, PCC Report 72 29 pp69-70, lines 15-3, JK Rowling, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-24-November-20112.pdf 30 Rowling v Scottish Mail on Sunday, PCC Report 77 31 p1, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Steve-Coogan3. pdf 32 pp8-10, lines 19-6, Steve Coogan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-22-November-20111.pdf
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Despite this, sections of the press have treated his private life as fair game for publication. He has been the subject of numerous kiss and tell stories and lurid exposes. In 1996, the Daily Mirror published two such stories, having paid a woman with whom he was having an affair to tell all. While investigating the stories, journalists door-stepped the pregnant mother of his child and door-stepped, or otherwise harassed, several members of his family. Shortly afterwards, in relation to a similar story, a journalist from the same title called the greatgrandmother of his daughter asking her to spill the beans about Mr Coogans relationship with her granddaughter.33 One example provided by Mr Coogan of the methods used to expose these stories was particularly notable. In 2002, Rav Singh, a casual friend of Mr Coogans and a journalist at the NoTW phoned Mr Coogan to warn him of a proposed NoTW sting. Mr Coogan was told that he was to receive a phone call from a woman with whom Mr Coogan was acquainted, and the woman would seek to persuade Mr Coogan to disclose intimate details of his life. However, the woman would be calling from the office of the editor of the NoTW with the intention of publishing the details of the conversation. Having been tipped off, Mr Coogan did not disclose any intimate details during that conversation. However, two years later Mr Singh called him to negotiate an article to be published the following day about another of Mr Coogans intimate relationships. Mr Singh offered to omit certain more embarrassing parts of the story if Mr Coogan admitted and discussed other aspects. Trusting Mr Singhs integrity after his 2002 experience, Mr Coogan did discuss the relationship in some detail with Mr Singh. At the end of the conversation, however, the editor of the NoTW called Mr Coogans publicist to inform him that the entire conversation had been recorded and all of the details disclosed would be published, including those that Mr Singh had agreed not to publish. As Mr Coogan noted, the promises not to publish certain elements of the story appeared to have been offered simply to induce Mr Coogan to reveal even more about the story.34 Mr Coogans expressed his view of the incident as follows:35 I dont think it was a malicious personal vendetta against me. My feeling is that it was a dispassionate sociopathic act by those who operate in an amoral universe where they are never accountable.
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No clear public interest justification has been offered for the many stories published about Mr Coogans sex life. The stories are mere tittle-tattle. But as Mr Coogan noted, such gossip is not necessarily harmless and, even when true, can be extremely damaging to the parties involved, as well as innocent third parties.36 When untrue, for instance in the case of the Daily Mails report that Mr Coogan was responsible for the attempted suicide of another actor, such invasions of private life can be extremely damaging indeed;37 this is dealt with in more detail below in the section on inaccurate and defamatory reporting.38 The evidence to the Inquiry from ex-footballer Garry Flitcroft highlighted the degree to which accurate reporting of private tittle tattle can be extremely damaging to innocent third parties, as much as to the subjects of the stories themselves. Mr Flitcroft played football
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pp10-12, lines 7-1, Steve Coogan, ibid pp16-19, lines 14-1, Steve Coogan, ibid; pp3-4, para 13-15, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Witness-Statement-of-Steve-Coogan3.pdf 35 p4, para 16, ibid 36 pp5-6, para 21-23, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-SteveCoogan3.pdf 37 pp16-19, lines 14-1, Steve Coogan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-22-November-20111.pdf 38 pp21-23, lines 2-22, Steve Coogan, ibid
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for Premiership club Blackburn Rovers, but told the Inquiry that he had never sold a story to a celebrity magazine, never endorsed any products in his own name, never attended any celebrity functions, or made public pronouncements about his family life. He was, put simply, an old fashioned footballer, focused solely on football.39 2.29 Mr Flitcroft was married, but had engaged in two intimate affairs. At some point during 2001, one of the women with whom he had been involved threatened to sell her story of their relationship, unless he paid her a sum of money. In essence, Mr Flitcroft says he was blackmailed, but refused to pay the woman any money and as a consequence she sold her story to the People.40 Mr Flitcroft sought an injunction to prevent publication. It is not necessary to review the lengthy litigation which ensued, save to say that the Court of Appeal lifted an injunction initially imposed by the High Court on the grounds that, in all the circumstances of the case, freedom of the press should prevail over Mr Flitcrofts right to private life.41 It is not for this Inquiry to review the rights or wrongs of that judgment42 but what is of interest is first, the conduct of the People during the course of the litigation and second, the apparent lack of consideration of the consequences of publication on Mr Flitcroft and his family by those responsible for publication. As to the first, the People responded to the interim injunction granted by the High Court by conducting what seems to have been an investigative exercise into other aspects of Mr Flitcrofts private life. As Mr Flitcroft noted, it seemed that details of my affair were of huge interest to the paper and they were doing everything they could to add colour to their existing story by trying to dig up more dirt on me.43 The papers investigations uncovered the second affair and, after Mr Flitcroft declined to pay the woman involved 5,000 not to disclose her story, she sold her story to the People.44 Additionally, although the interim injunction prevented publication of the story, Mr Flitcroft recalled that the People published sufficient details of the original story to spark intense speculation as to which Premiership footballer was the subject of the story. Rumour, and leaks from sports journalists, led many people to conclude the story was about Mr Flitcroft long before the story was published.45 Whether the revelation of Mr Flitcrofts identity was deliberate or not, and whether or not the Peoples further investigations were part of a dirt digging exercise as suspected by Mr Flitcroft, the response of the newspaper to Mr Flitcrofts attempt to prevent publication does at least appear to have been consistent with a practice identified later in this Report whereby parts of the press seek to intimidate, attack or punish those who challenge the right of the press to publish what they choose.
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39
pp47-48, lines 7-7, Garry Flitcroft, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-22-November-20111.pdf 40 pp1-2, para 7-12, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-GarryFlitcroft.pdf; pp48-51, lines 16-6, Garry Flitcroft, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Transcript-of-Morning-Hearing-22-November-20111.pdf 41 A v B [2002] EWCA Civ 337 42 Submissions were made by the core participant victims to the effect that the law on privacy has moved on since the Court of Appeal gave judgment in 2001, and that the assessment of the merits would not necessarily be the same today: the decision is discussed in the analysis of the civil law which is at Appendix 4 43 p3, para 15, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Garry-Flitcroft. pdf 44 p3, para 16, ibid 45 pp52-53, lines 25-16, Garry Flitcroft, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Morning-Hearing-22-November-20111.pdf; pp3-4, para 20-22, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Witness-Statement-of-Garry-Flitcroft.pdf
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When the injunction was lifted by the Court of Appeal, publication of the story by the People had a devastating effect on the lives of Mr Flitcroft and his family. Between 20 and 25 journalists and photographers congregated outside Mr and Mrs Flitcrofts home. Other journalists went to the homes of other family members, including that of Mrs Flitcrofts father who was suffering from Parkinsons disease and who found the episode extremely distressing.46 In the months that followed, Mrs Flitcroft was forced to stop taking her children to school to avoid journalists and photographers while on the school run. Mr and Mrs Flitcrofts marriage broke down.47 Mr Flitcroft said that, even today, his children suffer teasing and abuse in relation to the stories.48 According to Mr Flitcroft, the impact on his father was catastrophic. A long term sufferer of depression, he found it very difficult to deal with the press coverage about his son. Having attended every football match since his son was aged seven, he stopped going to football matches to avoid the humiliation of listening to the chants and mockery from other fans. Mr Flitcroft believed that his failure to attend football matches after the publication of the story was a significant factor in the worsening of his depression, which tragically ended in his suicide in 2008.49 These facts are important because they provide an insight into the personal consequences of what is often described as tittle tattle and often thought of as harmless fun. The risk of such personal consequences should not necessarily prevent publication, but it should, at least, require a degree of thought before publication. The evidence provided by former People editor, Neil Wallis, suggested that there was no genuine consideration of the potential consequences of publication on the lives of Mr Flitcroft and his family. When pressed on the factors which were considered prior to publication, Mr Wallis was unable to recall any of the specific factors, other than the fact that Mr Flitcroft was a footballer and therefore a role model. He repeatedly played down the significance of the story, saying that it was not a big story.50 But that misses the point. A run-of-the-mill kiss and tell may not be a big story to a newspaper, but it will always be a big story to the subjects of the story and their families. Although Mr Wallis implied that publication had beneficial consequences for Mrs Flitcroft because it resulted in her discovery of her husbands affair,51 his comment only reinforced the view that no proper consideration had been given, before or after publication, to the real consequences of publishing the story. Mrs Flitcroft did discover her husbands affair, but in the gaze of the tabloid press, hounded by photographers, and forced to hide from public. It is difficult to believe that she would thank the newspaper for its service. Further examples of this cultural indifference, within sections of the press, to the dignity and privacy of individuals were provided by the actor Hugh Grant. Over almost two decades, Mr Grants private life has been the subject of intense press scrutiny. He has been a victim of defamation, phone hacking and harassment by journalists and paparazzi, issues which are
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46
pp4-5, para 24-29, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-GarryFlitcroft.pdf; p58, lines 10-25, pp61-62, lines 16-3, Garry Flitcroft, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Transcript-of-Morning-Hearing-22-November-20111.pdf, 47 pp7-8, para 48 -52, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-GarryFlitcroft.pdf; 48 pp60-61, lines 8-2, Garry Flitcroft, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-22-November-20111.pdf 49 pp71-73, lines 6-16, ibid 50 p67, lines 2-15; pp71-73, lines 9-9, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Transcript-of-Afternoon-Hearing-12-December-20111.pdf 51 p73, lines 5-8, ibid
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dealt with in more detail at various places elsewhere. In addition, newspapers have published his private medical information: in 1996, the Daily Mirror published a report of his visit to Charing Cross hospital, and cited his condition and treatment;52 in March 2011, both The Sun and the Express published details of Mr Grants visit to Chelsea and Westminster hospital, and they too reported the treatment he received.53 In neither case was there any public interest in publishing this private medical information. 2.38 Consistent with the complaints made by other witnesses, Mr Grant noted that it is not only him, styled by the press as a celebrity, who is affected by the intrusive attentions of the press: his girlfriends and their children have also been affected.54 When his then girlfriends father died in 1996, two journalists who had never met the deceased man turned up at the funeral, presumably looking for a story about Mr Grant but claiming to want to pay their respects.55 Most recently, after the birth of his child to Tinglan Hong, the new mother experienced quite extraordinary levels of harassment by press and paparazzi. Ms Hong feared for her own safety and that of her child and, despite Mr Grants pleas, the harassment continued until the High Court issued an injunction preventing photographers from congregating near her house. The justification for the press intrusion Mr Grant has experienced over the last two decades is unclear. Gordon Smart, the showbiz editor of The Sun, told the Inquiry that the fact of Mr Grants celebrity alone justified the publication of his private medical information.56 It was a surprising approach, which revealed a lack of respect for the privacy of anyone who might be considered a celebrity. Paul Dacre, the editor in chief of the Daily Mail, put it another way in claiming that Mr Grant had spent his life invading his own privacy, exposing every intimate detail of his life.57 While he did not go so far as to suggest that Mr Grants private life was therefore open season, he did imply that, as a consequence of Mr Grants public disclosures of elements of his private life, the press could, with justification, investigate and report on his private life in significant detail. But there are real problems with that reasoning as well. First, although Mr Grant is an actor, and is by the nature of his career in the public eye, he does not appear to have courted celebrity or fame as some actors have. Indeed, his evidence was that he had given only two interviews to British newspapers in the last 17 years and did not employ a publicist in the UK.58 Although he accepted that he had spoken publicly about his desire to have a child, and had made remarks to the effect that he understands the publics interest in the personal lives of actors, the evidence provided to the Inquiry did not, in my view, support the conclusion that Mr Grant had spent his life invading his own privacy.59 Instead, the evidence revealed an actor who had, on occasion (mostly, but not entirely, in the course of interviews he was contractually bound to provide in order to satisfy the publicity requirements of the films in which he appeared), spoken about his personal life in a generally flippant or humorous manner, sometimes exposing a little more of himself than on other occasions. Unsurprisingly, he had also attended public events with girlfriends, and
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p5, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Hugh-Grant.pdf p5, para 15, ibid; pp14-16, lines 4-5, Hugh Grant, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Transcript-of-Afternoon-Hearing-21-November-2011.pdf 54 p6, para 18-19, ibid 55 p5, para 16, ibid 56 p67, lines 8-14, Gordon Smart, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-9-January-2012.pdf 57 p19, lines 22-25, Paul Dacre http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-6-February-20121.pdf 58 pp65-66, lines 22-5, Hugh Grant, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-21-November-2011.pdf 59 See in particular: http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Supplemental-WitnessStatement-of-Paul-Dacre3.pdf
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been photographed with them. But none of the evidence, taken individually or collectively, indicated a man who had spent his life invading his own privacy . I do not deny that some so-called celebrities could legitimately be accused of that. In Chapter 1 of this Part of the Report, I acknowledged that there is a class of person with a public profile those who actively engage in the celebrity industry who may enjoy a lower level of protection when it comes to privacy. I also accept, and fully recognise, that a substantial amount of celebrity reporting in the popular press concerns this class of people. However, in my view at least, Mr Grant does not fall within that class. 2.42 Second, even if it were true that Mr Grant had previously disclosed a multitude of genuinely private details about his life, or had sold stories of his private life to particular titles, it does not necessarily follow that he would be fair game for the press at large to publish further details without consent. As Mr Grant put it:60 I have heard the defence quite frequently from tabloid papers: Oh, well, you know, if you have ever talked about your private life, then you have no defence, you have no right to an expectation of privacy, which I think is absurd. Because anyone I mean, as I told you earlier, I think Ive only done two interviews ever with the British press, but when anyone does do an interview, it is, after all, a bargain. The press of that paper gets a boost in sales, they hope, and the person whos giving the interview gets a bit of noise about their forthcoming project. And like any barter, when its over, its over. If I sell you a pint of milk for 50p, I would not expect you to come to me forever afterwards, saying, You slut, you sold me milk once. I can now help myself to your milk forever. I would think you were mad. 2.43 Finally, even if Mr Grant can have no reasonable expectation of privacy himself, that does not justify the collateral damage to, or the harassment of, and intrusion into the private lives of, those close to him. Again, it seems that the intrusive reporting that Mr Grant spoke of is part of a cultural indifference within parts of the press to individual privacy and dignity. That manifests itself most frequently in the celebrity press, where individual private lives are treated, at least to some extent, as commodities. The evidence given by Miss Church, Ms Rowling, Mr Coogan and Mr Grant support this conclusion, as does the similar evidence heard by the Inquiry from Sienna Miller,61 Sheryl Gascoigne,62 Anne Diamond63 and Heather Mills.64 But the cultural indifference to privacy and dignity does not apply only to celebrities or those in the public eye. In addition to the experiences described by the Dowlers, the McCanns and Christopher Jefferies, the Inquiry heard evidence from, or about, numerous others who were not public figures but who had experienced seriously intrusive coverage and/or treatment from the press.
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pp90-91, lines 19-10, Hugh Grant, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-21-November-2011.pdf 61 pp26-39, lines 14-2, Sienna Miller, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Morning-Hearing-24-November-2011.pdf; pp2-3, para 3-12, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Witness-Statement-of-Sienna-Miller.pdf; and see further below 62 pp70-73, lines 10-19; pp75-76, liness 1-8, Sheryl Gascoigne, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Transcript-of-Morning-Hearing-23-November-20111.pdf; pp5-6, para 22-24, http://www. levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Sheryl-Gascoigne.pdf 63 pp62-75, lines 11-25, Anne Diamond, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Afternoon-Hearing-28-November-20111.pdf; pp7-9, para 29-37, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Witness-Statement-of-Anne-Diamond1.pdf 64 pp86-89, lines 25-23, Heather Mills, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcriptof-Morning-Hearing-9-February-2012.pdf; pp14-15, para 50-52; p16, para 57, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/02/Supplemental-Witness-Statement-of-Heather-Mills.pdf
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The evidence provided by HJK, discussed in Chapter 3 above, was a prime example of this. So too was the evidence of Baroness Hollins. In 2005, Baroness Hollins daughter Abigail Witchall, a private individual with no public persona, was stabbed and critically injured: she was a victim of crime, pure and simple. Although the majority of the press covered the story in a compassionate and sensitive way, a section of the press behaved irresponsibly and without regard to the privacy and dignity of the family. On the first day after the attack, a group of journalists congregated in the family garden, before being required to leave by police. Other journalists camped outside the hospital where Abigail was undergoing treatment, or pretended to be visitors in the waiting room.65 The intrusion and surveillance continued: a year later, a long lens photograph was published in The Sun of the entire family, while on a private pilgrimage to Lourdes;66 even in 2010, when Abigail had given birth to another baby, Daily Mail reporters were stationed outside her house on a shift pattern waiting for sight of Abigail or the baby.67 The family also endured the publication of intimate and private details. Reporting on the incident, the NoTW published the headline, Exclusive: new shock in Abi attack knife mum was pregnant. While accurate, the truth was that Abigail was only five weeks pregnant and was unaware of the fact. She had certainly not consented to the publication of the fact of her pregnancy and it appears no family member had done so either.68 The experience described by Baroness Hollins in relation to the reporting of her daughters attack was echoed by evidence given to the Inquiry by several other witnesses who complained of a breach of privacy and harassment in the aftermath of a death or attack; that evidence is considered in more detail at Section 6 below. The Inquiry also received evidence about a series of stories published in the NoTW about Bob and Sue Firth. Their evidence was that they ran a naturist B&B in Dorset, which had been anonymously inspected by the English Tourist Board and rated as highly commended. Shortly after receiving that rating, the NoTW journalist, Neville Thurlbeck, orchestrated an undercover sting operation and reported that the Firths were running not just a naturist B&B, but a brothel at which Sue Firth would have sex with guests while Bob Firth looked on.69 The Firths evidence was that there was no truth in the story. At no stage had Sue Firth engaged in sexual activity with guests, and sexual activity was no part of the naturist element of the B&B.70 However, they claimed that Mr Thurlbeck had entrapped them: he had cajoled and paid the Firths to perform a sex act while Mr Thurlbeck looked on. On their evidence, that had only happened as a consequence of Mr Thurlbecks entrapment and had never previously, or subsequently, occurred at the B&B. Nonetheless, as a consequence of the articles published in the NoTW, the Firths were forced to close the B&B.71
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pp12-16, lines 20-5, Baroness Hollins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/ Transcript-of-Afternoon-Hearing-2-February-2012.pdf; p1, para7, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/02/Witness-Statement-of-Baroness-Hollins.pdf 66 pp26-29, lines 14-1, Baroness Hollins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/ Transcript-of-Afternoon-Hearing-2-February-2012.pdf; p2, para9, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/02/Witness-Statement-of-Baroness-Hollins.pdf 67 pp30-32, lines 25-15, Baroness Hollins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/ Transcript-of-Afternoon-Hearing-2-February-2012.pdf; p2, para 10, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/02/Witness-Statement-of-Baroness-Hollins.pdf 68 pp18-19, lines 19-25, Baroness Hollins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcriptof-Afternoon-Hearing-2-February-2012.pdf 69 pp1-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Bob-and-Sue-Firth. pdf 70 p3, ibid 71 pp1-2, ibid
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Mr Thurlbeck was given an opportunity to comment on the Firths evidence but declined, instead relying on a PCC ruling that had found the story to be justified in the public interest.72 That ruling is available but, to say the least, is opaque at best. No doubt on the basis that the PCC is not set up to resolve issues of fact, it makes no finding on the Firths core complaint that much of the story was fabricated. Without making that decision, however, the PCC considered itself able to reach a finding on the public interest of the story. But if it was fabricated, it is extremely difficult, if not impossible, to decide that there was any public interest in it. Despite being pressed to explain the public interest in the story, Mr Thurlbeck simply refused to do so. It was clear from the evidence of Tom Crone, the legal advisor at the NoTW at the time, that Mr Thurlbeck neither requested nor received any advice on the public interest of the story before engaging in the subterfuge, nor did he request or receive such advice prior to publication.73 Mr Crones evidence to the Inquiry was that the story was tacky and the breach of privacy involved was not justified.74 The fact that the newspapers own lawyer considered that the breach of privacy was not in the public interest is revealing, as is the fact that nobody thought it appropriate to ask him in the first place. Overall, and notwithstanding the concerns which have been expressed, it would not be right to reach any further conclusions on the Firth story, for a number of reasons. It occurred a considerable time ago now, and the evidence is both murky and heavily disputed. The Inquiry received a witness statement from the Firths but it was not tested in oral evidence. To have done so would have occupied a disproportionate amount of Inquiry time in circumstances where Mr Thurlbeck had already made clear that he would refuse to give his account of this story. Given that he had been arrested in connection with alleged phone hacking offences in the summer of 2011 (and has since been charged), it would have been difficult to compel him to engage with the Inquiry on these issues, and probably unnecessary. Notwithstanding all these caveats, it is possible, at least tentatively, to conclude that prior to publication, the NoTW had insufficient regard to the privacy of the Firths or the consequences of publication on their lives. Assessed as a whole, the examples referred to so far in this Chapter (including those merely footnoted) suggest a culture of indifference to individual privacy and dignity, at least within parts of the press. But the evidence supporting that conclusion is not limited to this section, and can be seen throughout the Chapter: the evidence of phone hacking, email hacking, blagging, harassment and surveillance all lead to the same conclusion. Evidence by lawyers who represent victims of privacy intrusion also supported that same conclusion. Graham Shear, a partner at law firm Berwin Leighton Paisner, told the Inquiry that in the last 15 years tabloid newspapers had specifically targeted celebrities and sportsmen to generate front page exposs.75 The use of surveillance, subterfuge, or the payment of an agent provocateur had increased in what he considered was a response to commercial pressures which required sensationalist exposes to generate sales.76 His evidence was supported by solicitor Mark Thomson who considered that, since the late 1980s, there had been a widespread culture of the illegal obtaining and use of private information by popular
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pp36-38, lines 12-7, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Afternoon-Hearing-12-December-20111.pdf 73 p62, lines 11-16, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-13-December-20111.pdf 74 p62, lines 5-10, ibid 75 p2, para 6-7, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Graham-Shear. pdf 76 p1, para 4, ibid
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newspapers.77 He noted that since that time, his clients had regularly been photographed and/or followed and stories had been published or threatened in circumstances where information as to their movements or private lives could not have been obtained Iegally.78 2.56 Mr Shears evidence was that the increasingly intrusive techniques used by parts of the tabloid press to generate increasingly sensational stories were the result less of an indifference to private lives and reputation, and more the result of a calculation of the financial risk of a privacy or defamation claim against the potential profits that a story might generate. On that basis, he considered that some titles would publish stories likely to result in a substantial increase in circulation, notwithstanding that the story was likely to be an unlawful invasion of privacy, or even defamatory.79 There is some further evidence of unethical or unlawful publication based on the calculation of legal risk versus potential profits. For example, Piers Morgan recollected in his book The Insider that, prior to publishing a double page spread based on copy unlawfully lifted from another newspaper, he had specifically asked for legal advice on the likely damages to be awarded for the lifting, before concluding 50 grand would have been well worth paying for a front page and two spreads inside and the bigger sales revenue it would bring.80 However, although there is material to suggest that financial calculations play a part in the willingness of parts of the press to use intrusive investigative techniques or to publish stories involving egregious breaches of privacy, it is not clear that most of the complaints made by victims of these practices can be explained by a calculated approach to assessing financial risk against potential profit. Instead, it seems more likely that, in the majority of cases of unjustified invasions of privacy, the simple fact is that the privacy and dignity of subjects of stories are not considered at all or, alternatively, are not sufficiently weighed in the balance prior to investigating or publishing the story. The evidence heard from some editors, journalists and executives supported that view. At its extreme, the cultural indifference to privacy was encapsulated in Paul McMullans observation that privacy is for paedos no-one else needs it. Privacy is evil.81 While others may not have expressed themselves in the same terms, there seemed to be at least some agreement from other editors and journalists that privacy was not a matter worthy of significant protection. Kelvin MacKenzie recalled that, as editor of The Sun, he did not have any regard to issues of privacy.82 He said:83 I didnt spend too much time pondering the ethics of how a story was gained, nor over-worry about whether to publish or not. If we believed the story to be true and we felt Sun readers should know the facts, we published it and left it to them to decide if we had done the right thing.
p12, para 40, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-MarkThomson.pdf 78 p12, para 40, ibid 79 pp3-4, para 12 -13, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-GrahamShear.pdf 80 Morgan, P, The Insider, p229 81 p91, lines 5-7, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-29-November-2011.pdf 82 p12, lines 3-5, Kelvin MacKenzie, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-9-January-2012.pdf 83 p1, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-KelvinMacKenzie.pdf
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Although Mr MacKenzie left the Sun in 1994 and his evidence cannot necessarily be taken as reflecting attitudes prevailing today, his views chimed with Mr McMullans, and were not dissimilar to some of the views expressed by proprietors, editors and journalists. As previously noted, the proprietor of the Express Group, Richard Desmond gave evidence that his newspapers are in a business to give readers/viewers what they want to read and watch and as long as it is legal that is what we aim to do. We do not talk about ethics or morals because its a very fine line, and everybodys ethics are different.84 Mr Desmond said that the bottom line for whether or not to publish a story was the reputation of his newspapers.85 That approach from the proprietor may or may not have influenced the thinking of the editor of the Daily Express, Peter Hill, when considering whether to publish 38 defamatory and intrusive stories about the McCanns. Mr Hills evidence to the Inquiry betrayed a distinct lack of consideration for the dignity and privacy of the McCanns, and showed instead a focus on the circulation of his newspaper.86 Despite his knowledge that his reporters on the ground in Portugal had very real concerns about the truth of the articles they were writing, Mr Hill told the Inquiry that he was not troubled by the decision to publish because, in his view, there was a clamour for information about the Madeleine McCann story and his readers wanted to read about it.87 His evidence suggested a remarkable elision between what was justified in the public interest, and what would interest his readership. Such elision leaves little room for the protection of privacy if a readership is interested in reading about the private lives of others. But Mr Hill was not alone in holding a conception of the public interest that was essentially defined by what interested the readership. The then editor of the Sunday Mirror, Tina Weaver, confirmed that her view was that the public interest test was often drawn too narrowly by the courts and the PCC and that the public were ultimately the best barometer of what was in the public interest. She confirmed that her approach came close to equating the public interest with what interested the public, although she denied that there was a complete overlap between the two.88 The Daily Expresss Hugh Whittow and the Daily Stars Dawn Neesom considered the readers views to be a primary factor in the consideration of whether to publish private information.89 Similarly, the Daily Mirrors then editor Richard Wallace thought the public interest was very strongly influenced by what interests the public. In the context of the Christopher Jefferies story, he said:90 What the public are interested in is a central tenet of public interest. The public were interested in this story Acting within the framework of the PCC Code, I considered publishing these stories to be in the public interest because the public wanted to read about the story.
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p6, para 22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-RichardDesmond.pdf 85 para 22, ibid 86 pp19-26, lines 24-1, Peter Hill, www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-AfternoonHearing-12-January-2012.pdf 87 pp29-30, lines 13- 2, ibid 88 pp9-11, lines 24-18, Tina Weaver, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-16-January-20121.pdf 89 pp48-51, lines 21-2, Dawn Neesom, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-12-January-2012.pdf; pp110-115, lines 4-1, Hugh Whittow, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/01/Transcript-of-Morning-Hearing-12-January-2012.pdf 90 p8, para 29, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Second-Witness-Statement-ofRichard-Wallace.pdf
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The story about Mr Jefferies is a prime example of why the elision of the public interest with what interests the public is dangerous. It may well interest the public to read private, scandalous and defamatory material about a suspect to a murder, but it is clearly not in the wider public interest for newspapers to act in contempt of court, let alone erroneously to destroy a mans reputation. A consideration of what interests a readership must of course form the basis of any editorial decision to publish or not to publish material, but where the material involves private rights, the decision on whether to publish must also include a consideration of the consequences of publication on the subjects of stories and on the wider public interest. Richard Peppiatt provided helpful evidence on this point when he noted:91 Yesterday, Hugh Whittow, in the Commons Select Committee on Privacy, he said over the Chris Jefferies case, which I thought was really cold he said, We make mistakes, we paid out, we move on. Well, Chris Jefferies doesnt move on. His life has been irreparably changed and that is the attitude: We make mistakes. But no one wants to take responsibility for those mistakes and the reason is because theres not an individual who you can point the finger to and say is responsible, because its a culture.
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A failure to consider the personal consequences of publishing information about an individuals private life was evident in Mr Dacres evidence. The Daily Mails coverage of the attack on Ms Witchall included an article suggesting a spurious link between Ms Witchalls attack and one suffered by her brother some years earlier. Included as part of that article was the name and a photograph of Ms Witchalls brother, an indication that he suffered from learning difficulties and the names of his attackers. Baroness Hollins complained to the Inquiry that the article was an unjustified breach of her vulnerable sons privacy, which also placed him at risk of reprisals from his convicted attackers.92 Mr Dacre defended the article robustly:93 Can I say as strongly as I can that this, I believe, shows how the Inquiry doesnt understand how newspapers work. To my mind, this is a story and a feature handled with superb sensitivity. Ive been through it. I think its written with massive compassion. I think the family come out of it wonderfully. The love between the brother and sister is extraordinary. The religious faith of the family comes across. The learning disability the mother and the son wrote a book about that, on how to handle court cases for people with learning disabilities. I think thats a wonderful message to get out to the public. I think that was an extraordinary story.
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While the story may well have been extraordinary, written sensitively, and may well have contained a wonderful message, those factors do not change the fact that the story involved the disclosure of sensitive information which caused significant upset to the family, and was based in large part on the spurious suggestion of a link between two obviously unlinked attacks. I do not criticise Mr Dacre for the decision to publish the article, which he considered to be justified in the public interest. He is absolutely entitled to his own view on where the balance between private rights and public interests lay in respect of this (and other) stories.
pp46-47, lines 23-7, Richard Peppiatt, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Morning-Hearing-29-November-2011.pdf 92 pp24-26, lines 8-13, Baroness Hollins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcriptof-Afternoon-Hearing-2-February-2012.pdf 93 pp63-64, lines 21-8, Paul Dacre, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-6-February-20121.pdf
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But Mr Dacres robust defence of the article failed to engage with the genuine concerns raised by Baroness Hollins. Indeed, Mr Dacre appeared not to understand why the family would have been upset by the article at all.94 Given that Mr Dacre did not engage with the actual consequences of the story for the family, and their response to it, it seems probable that insufficient consideration was given to the potential consequences of the story, or its impact on the family, prior to publication. 2.70 Mr Dacre adopted a similarly robust approach in defending the publication of a defamatory story containing erroneous information about alleged drunken behaviour of the actor Neil Morrissey.95 Mr Dacre accepted that the story was inaccurate and defamatory, but was unwilling to accept Mr Morrisseys evidence that the story was hurtful to him. Moreover, he argued strongly that, if true, the story would have been in the public interest because Mr Morrissey was a famous actor, because the story interested his readership and because, at the time, the Daily Mail believed that Mr Morrissey had acted irresponsibly.96 The final element of that justification irresponsible behaviour accorded with a more general point which Mr Dacre accepted, that his newspaper felt justified to publish private information about public figures when they erred from the traditional virtues of family life, traditional matrimony and traditional values.97 What was concerning about Mr Dacres evidence on both the Ms Witchall and Mr Morrissey stories was not his editorial judgment on whether the articles should have been published or not. Instead, the concern related to Mr Dacres unwillingness to entertain the idea that each of these stories might have been hurtful, upsetting and/or damaging to the individuals involved. If such a possibility is not even recognised post publication, despite evidence to the contrary from the subjects of the stories, then it seems unlikely to have been the subject of any consideration pre-publication. As part of the body of evidence received from editors and proprietors, Mr Dacres evidence supported a more general conclusion that there is a cultural unwillingness in parts of the press to consider the consequences of publication on the individuals involved. Some of the evidence from photo-editors and photo agencies discussed in Section 5 below, also supports that conclusion. To reiterate the point: the fact that a story might be hurtful, damaging or intrusive to the subjects of a story is not necessarily a reason not to publish that story. It may not even be a reason to amend the story. But it is difficult to see why the consequences on the individuals who are likely to be affected by publication should not both be relevant and factored into the overall decision. In part, this cultural unwillingness stems from inadequate systems for considering and recording public interest decisions. Assessing the evidence as a whole, and as more fully discussed below, it appears that, until recently, in house legal advisors were rarely asked to advise on privacy issues at all, but focused almost exclusively on libel. Although legal advisors are now asked to advise on privacy issues more regularly, the final decision on publication (rightly) rests with the editorial team. It appears that, in the majority of titles, there is no formal system in place for that team to consider, decide and minute the difficult questions of whether publication of private information is in the public interest. Those titles that do have such systems have only introduced them very recently.
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pp63-68, lines 21-14, ibid pp1-4, para 3-9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-on-behalf-of-NeilMorrissey.pdf 96 pp103-106, lines 1-1, Paul Dacre, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-6-February-20121.pdf 97 pp10-11, lines 15-21, Paul Dacre, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-6-February-20121.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-on-behalf-of-Neil-Morrissey.pdf
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Although some witnesses feared the bureaucratic burden that such systems might impose, those fears are surely misplaced. Only a few stories raise issues of this nature and a single page record of the factors weighing against and in favour of publication, along with a record of the reasons for the conclusion reached, would suffice and be no more than many editors said reflected their thought processes. The adoption of such a system for reaching public interest decisions is, however, important for two main reasons. First, such decision-making process focuses the mind and ensures that all relevant factors, including the privacy and dignity of the individual, as well as the potential consequences of, and public interest in, publication are properly considered. The second reason is that a formal, written decision making process can assist titles defending subsequent complaints or litigation, where the absence of any contemporaneous record of decision can result in accusations of ex post facto reasoning to justify what was in reality an unconsidered interference with private life. This approach may well cause Mr Dacre to consider that his expressed view (that the Inquiry does not understand how newspapers work) is proved, but it is important to make the point that both the approach and the reasons underlying it rely only on the law of privacy as it has been explained by the courts and on the standards identified by the press themselves expressed through the Editors Code of Practice. Newspapers have to work within the law and if the Code does not represent the way in which newspapers carry out their business, then the high regard which editors have for it is misplaced. Although significant improvements can and should be made (and in many cases, have already been made) to internal systems for considering and recording public interest decisions, systemic changes alone will not address the real issues identified above. In my view, parts of the press require a cultural, rather than a systemic, change to ensure that the privacy and dignity of individuals is appropriately respected, and to ensure that the public interest in, and consequences of, and publication are considered when titles decide how and whether to investigate, and publish, details of individuals private lives. The need for such a change in culture is all the more urgent in a technological age which allows for unprecedented access to private information and unprecedented means to distribute that private information. As the Media Standards Trust noted:98 In the constrained media environment of the twentieth century there were practical limitations on the press ability to report on peoples private lives. There was, for example, only a limited amount of material the press could access in terms of photographs, video, phone conversations etc. There were also practical constraints on what the papers could and could not publish. They were not able to publish video or audio, and they could only publish as much as could fit between the front and back pages of the print paper. For the most part these practical constraints no longer exist. The press or anyone else can access huge amounts of personal material themselves and through others. A reporter can legitimately find personal information published on the internet or source recorded audio/video from members of the public. Equally, a reporter can illegitimately access private material or illicitly record personal moments or private phone calls. The papers can then publish as much of this material as they like in text, audio, or video online. Or anyone else can publish this information, on a website, on a blog, on a social networking site like Facebook, on twitter, on a wiki. The information can then ripple rapidly outwards across the net.
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98
Fifth submission of the Media and Standards Trust: Privacy: Submission to the Joint Committee on Privacy and Injunctions November 2011, pp 7-8
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In this context, it is vital that the press in general develops, and/or maintains, internal cultures in which respect for individual privacy and dignity is central, without impacting adversely on genuine investigative journalism. In the absence of such cultures, the temptation to use the technology that is now available to invade privacy and to publish private information, when not in the public interest, may be irresistible. It is to the evidence on the use of some of those technologies which I now turn.
3. Unlawful or unethical acquisition of private information

Introduction
3.1 This Chapter will now explore the evidence heard by the Inquiry in relation to the practices of the press in obtaining private information, the extent to which these practices could properly be described as cultural rather than sporadic or isolated incidents, and the extent to which those working in the media industry were aware that these practices were occurring. The practices under consideration are known colloquially in the industry as the dark arts, although this term no doubt goes wider than the unlawful and unethical acquisition of private information. The Inquiry received evidence of a general nature about these practices from witnesses such as Nick Davies from the Guardian.99 The witness statement of Michelle Stanistreet, and her exhibits containing anonymous testimony, included evidence from one journalist who had experienced the practices of the dark arts across a range of mid-market, tabloid and broadsheet newspapers, and had himself worked with a private investigator on a number of stories. The witness explained to Ms Stanistreet that investigators could provide surveillance services including bugging homes and offices and recording landline phones, Police National Computer (PNC) checks to learn about criminal convictions and cautions, and could find up to date addresses. These services were provided in return for cash delivered in rolled up newspapers by journalists. This evidence recalled that, initially, the use of such techniques was not widespread in newsrooms but was restricted at that time to a few journalists who had an investigative bent. However at another title, methods of obtaining information were talked about more openly and, in relation to two titles where the witness had worked, there were small coteries of reporters who could and were expected to practice the dark arts.100
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3.4 This topic has been addressed in other sections of the Report . However, for reasons of aiding the overall narrative, and because phone hacking amounts to one of the most egregious examples of unethical press practices, a relatively brief recapitulation of the evidence is provided here. Whilst the precise methods by which phone hacking was perpetrated do not require detailed explanation, the evidence of Detective Inspector Mark Maberly is worth noting at this juncture.101 One method of obtaining access to voicemails was referred to in Fleet Street
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p61, Nick Davies, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Morning-Hearing29-November-2011.pdf 100 pp14-21, lines 12-15, Michelle Stanistreet, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/ Transcript-of-Afternoon-Hearing-9-February-20121.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/MS-Exhibit-11.pdf 101 pp74-94, lines 17-24, Mark Maberly, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-29-February-2012.pdf
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folklore as double whacking; this worked by one person ringing a mobile phone to engage it, and then another person ringing the phone to be directed to the voicemail. With some telephone companies there was a prospect of then interrupting the voicemail message and being diverted into the voicemail account where a PIN could be entered to listen to the messages. As Mr Maberly observed, it would not be possible to use this method on too many occasions as it would become difficult to justify repeated spurious calls and this would arouse suspicion. The method of voicemail interception used by Glenn Mulcaire, amongst others, was a more sophisticated form of voicemail interception facilitated by calling into service providers through a unique retrieval number and entering a PIN to listen to message, the PIN often having previously been changed or reset to default by the intruder.102 3.6 Interestingly, the evidence the Inquiry has received from Vodafone indicates that they were apparently unaware of these possibilities until 2006.103 Vodafone is a large company and its corporate memory may be difficult to pinpoint. Vodafones evidence needs to be considered in the context of other material put before the Inquiry, including compelling evidence from Steve Nott, which indicated that as early as 1999 the security flaw within the voicemail system was known about by at least two service providers.104 News of the World 3.7 3.8 Little needs to be said about the NoTWs involvement in phone hacking, given the preceding sections of this Report, but a short summary of the evidence canvassed previously is helpful. Taking together the evidence which has emerged from the prosecution of Mr Mulcaire and Mr Goodman, the admissions made by News International in the context of civil claims founded upon allegations of phone hacking and what the Inquiry has been told by former employees, in my view there is clear evidence that voicemail interception was occurring at NoTW from if not slightly before 2000, and probably continued until around 2009.105 It is equally clear that these practices were not limited to a single journalist. In opening the Inquiry, Robert Jay QC described these activities as amounting to a thriving cottage industry.106 Without delving into any of the detail regarding particular journalists or employees of the company, which would plainly be inappropriate given the extant criminal proceedings, it would not be unfair to describe the practice of voicemail interception within a part or parts of the NoTW as cultural. Daily Mirror 3.9 The Inquiry has also heard evidence which suggests that phone hacking may not have been confined to NoTW, and may have been occurring at other tabloid newspapers, including the Daily Mirror. All of this evidence needs to be considered by the Inquiry with great precision, as well as a measure of caution, partly because civil claims have been issued in respect of allegations of phone hacking at the Daily Mirror,107 but also because it is generally unfair to
pp74-94, lines 17-24, ibid http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Vodafone.pdf 104 p2, Steve Nott, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-6December-20111.pdf; 105 p88, lines 5-6, Opening of Inquiry, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-14-November-2011.pdf; 106 p88, lines 25, ibid 107 On 23 October 2012, it was reported that a number of civil claims had been brought against the Mirror Group alleging the Mirror had engaged in phone hacking: see, for example: http://www.guardian.co.uk/media/2012/oct/23/ phone-hacking-allegations-trinity-mirror-shares
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name and potentially criticise others in relation to illegal or unethical conduct when the need to avoid prejudicing criminal investigations and prosecutions means that I am unable fully to investigate or describe what was happening at the NoTW. 3.10 In this context, consideration needs to be given first to the evidence relating to the voicemail of Heather Mills, which may be summarised as follows. In 2001 a number of voicemail messages were left by Sir Paul McCartney on Ms Mills mobile phone following a disagreement between them. The precise content of the messages is immaterial, save to note that in the messages Sir Paul apologised and sought forgiveness from Ms Mills through song. Ms Mills picked up the voicemail messages the following day, she recalls the messages were treated as saved messages, rather than as new messages on her voicemail system, which she thought was unusual but did not regard as significant at the time. Later that day she was telephoned by a former employee of Trinity Mirror Group (TMG) who told her they had heard that she had argued with her then partner, who had sung down the phone. Ms Mills responded that the only way this could have been known was to listen to her voicemail, to which the journalist laughed.108 In October 2006 it was reported in an article written by Piers Morgan in the Mail Online that he had been played a tape of a voicemail message left for Ms Mills in 2001. The article read Stories soon emerged that the marriage was in trouble. At one stage I was played a tape of a message Paul had left for Heather on her mobile phone.109 Mr Morgan confirmed in his evidence to the Inquiry that he had listened to a tape of a voicemail message left for Ms Mills in around 2000 or 2001 when he was editor of the Daily Mirror. Mr Morgan was asked to explain his understanding of how the tape had been obtained. His evidence was that he had no reason to believe that this had been through an unlawful means, and no story had been published by the Daily Mirror based on the tape.110 Mr Morgan declined to give any evidence to the Inquiry relating to the provenance of the voicemail message, the circumstances in which the tape was played to him, or any evidence to the effect that Ms Mills had consented to or authorised his actions, invoking the confidentiality of his source.111 Ms Mills confirmed to the Inquiry that she had never played the message described by Mr Morgan to anyone, never taken a recording of the messages and that the messages were deleted in 2001.112 Ms Mills has also confirmed that she never authorised Mr Morgan to access her voicemail, listen to her voicemail or played to Mr Morgan or authorised him, or any other person, to listen to a recording of her voicemail messages.113 Ms Mills further told the Inquiry that evidence obtained during Operation Weeting proved that private voicemail messages of Ms Mills and her sister had been hacked into, albeit that evidence did not relate to the taped voicemail message presently under scrutiny.114
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pp80-86, lines 13-24, Heather Mills, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcriptof-Morning-Hearing-9-February-2012.pdf; pp1-3, paras 4-14, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/02/Witness-Statement-of-Heather-Mills.pdf 109 pp69-70, lines 25-8, Piers Morgan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-20-December-2011.pdf; 110 pp7-8, para 32 -33, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Second-Witness-Statement-ofPiers-Morgan.pdf 111 p70-71, Piers Morgan http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-AfternoonHearing-20-December-2011.pdf; 112 pp1 -3, paras 4 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-ofHeather-Mills.pdf 113 pp1-3, para 4 -18, ibid 114 pp15-16, paras 56-57, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Supplemental-WitnessStatement-of-Heather-Mills.pdf
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When subsequently asked to comment on Ms Mills evidence, Mr Morgan placed in issue her assertion that she had never played her voicemail messages to anyone, and put before the Inquiry a witness statement from John Ferriter (Ms Mills agent at the time, and now Mr Morgans agent) dated 29 October 2012 which claimed that, in 2007, Ms Mills played him a recording of a voicemail message left by Sir Paul.115 It is clear from the context that this particular message was left very much later than the message to which Mr Morgans evidence relates (although Mr Ferriter is not specific about this), and for that reason alone is irrelevant to the issue the Inquiry is considering. It has been noted that, when asked to comment on extracts of Mr Ferriters evidence, Ms Mills denied ever having played Mr Ferriter a voicemail message.116 Ms Mills reiterated her sworn testimony that the voicemail message Mr Morgan described having been left by Sir Paul for Ms Mills in circumstances where the couple had clearly had a tiff, Heather had fled to India and Paul was pleading for her to come back, was not one which she had played to anyone. Insofar as it does relate to issues directly relevant to the Inquiry, I accept the account that Ms Mills has provided. The evidence relating to this particular episode cannot be considered in isolation. The Inquiry also heard evidence from Jeremy Paxman and Richard Wallace in relation the possibility that the voicemail of Ulrika Jonsson had been hacked by the Mirror. Mr Morgan, in his book The Insider, described an incident during the period when he was editor where Mr Wallace, then the showbusiness editor employed by the Daily Mirror, had come into his office with a wicked grin on his face and relayed to him a story about the details of Ms Jonssons private life. Mr Wallace in his evidence explained that this tip off had come from the showbusiness team at the Daily Mirror; he accepted that he could not positively assert what the source of the tip off was, and acknowledged that it was possible the source was phone hacking.117 Mr Morgan subsequently called Ms Jonssons agent who had confirmed that the details of the story were true. As for Mr Paxman, he explained that he attended a lunch at the offices of TMG on or around 20 September 2002; the lunch was hosted by Sir Victor Blank, the then Chairman of TMG, and the then editor of the Sunday Mirror, Mr Morgan. Ms Jonsson, Philip Green and a number of others were also present. In the course of conversation he heard Mr Morgan joke with Ms Jonsson that he knew the content of conversations between Ms Jonsson and Sven Goran Eriksson, with whom Ms Jonsson had had a relationship. Mr Paxman explained that Mr Morgan turned to him and asked him whether he had a mobile phone and whether he had a security setting on the message facility; he then explained that the way to gain access to peoples messages was to go to the factory default setting and press either 0000 or 1234, and further said that if you did not put on your own code, in Mr Morgans words, Youre a fool.118 This evidence does not establish that Mr Morgan authorised the hacking of voicemails or that journalists employed by TMG were indulging in this practice. What it does, however, clearly prove is that he was aware that it was taking place in the press as a whole and that he was sufficiently unembarrassed by what was criminal behaviour that he was prepared to joke about it. Whatever other inferences might be drawn from Mr Paxmans convincing evidence on this issue, it is sufficient for present purposes to leave the matter there.
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Witness Statement of John Ferriter is available on the Inquiry Website The Third Witness Statement of Heather Mills is available on the Inquirys website 117 pp74-76, lines 5-8, Richard Wallace, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-16-January-2012.pdf 118 pp136-139, lines 9-1, Jeremy Paxman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcriptof-Afternoon-Hearing-23-May-2012.pdf Mr Morgan denied listening to Ulrika Johnsons voicemail messages in relation to Sven Goran Eriksson
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The Inquiry also heard evidence from James Hipwell, who was employed as a journalist at the Daily Mirror from 1998 to 2000 and worked on the City desk. He sat next to the Daily Mirrors showbiz journalists and explained in his evidence that he was able to see at close hand how they operated. He observed journalists carrying out repeated privacy infringements, by hacking into the voicemail systems of celebrities, their friends, publicists and public relations executives. Mr Hipwell observed that the openness and frequency of their hacking activities gave him the impression that hacking was considered a bog-standard journalistic tool for gathering information. He explained how he heard showbiz journalists openly discussing what had been heard on voicemails and one of the journalists showed Mr Hipwell how to hack into voicemails. He also observed that, on occasions, the journalists would joke about having deleted a message from a celebritys voicemail to ensure no journalist from The Sun would get the same scoop by hacking. Mr Hipwell further explained that he observed this conduct on a daily basis in 1999 and a great number of the Daily Mirrors showbusiness stories would come from phone hacking.119 Although doubts may exist as to Mr Hipwells credibility, given his criminal record and the real risk that he bears a grudge towards his former employer, the account he gave to the Inquiry on these matters was clear, firm and convincing.120 Mr Hipwell did not name any individual journalists, and his evidence cannot do more than serve to demonstrate that phone hacking as a practice may well have been occurring at the Mirror titles when Mr Hipwell was working there. Mr Morgan denied knowing about the activities described by Mr Hipwell,121 and the latter did not say in terms that the editor knew about them. The issue for consideration at this stage is exactly what inferences the Inquiry is minded to draw in relation to Mr Morgan. It is right that the Inquiry is explicit about this, given the public concerns which followed the receipt by the Inquiry of Mr Morgans oral evidence in December 2011 and the prominence given to the reporting of Mr Paxmans evidence. There is no evidence that Mr Morgan hacked into any mobile phone and, because of the approach I have adopted, it would be unfair and wrong in principle to reach any conclusion that he expressly authorised the hacking of voicemails at the Mirror titles or was aware that this practice had occurred in any individual case. Further, Mr Morgan has refused to reveal his confidential source in Ms Mills case and the Inquiry faces the perennial difficulty of not being able to penetrate beneath that refusal. For the avoidance of doubt, however, the Inquiry does conclude that the practice of phone hacking may well have taken place at the Mirror titles at the time Mr Hipwell was working there, that Ms Mills voicemail probably was hacked into by someone (albeit it is unnecessary, if not impossible, to reach a conclusion as to whether he or she was a Mirror journalist), and that it is equally probable that Ms Jonssons voicemail was hacked into. It is a separate issue whether Mr Morgan was aware in broad terms of the general practice of phone hacking. This issue, touched upon above in relation to the evidence of Mr Paxman, will be addressed below under a separate rubric.
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pp13-18, lines 13-6, James Hipwell, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-21-December-20111.pdf 120 Mr Hipwell also drew attention to the sentencing remarks of Beatson J at his trial (page 6, liness 10-13, http://www. levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-21-December-20111.pdf): There was no guidance from your superiors or from the in-house lawyers, and there was evidence of a culture of advance information about tips and share dealings within the office. 121 p78, lines 925, Piers Morgan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-20-December-2011.pdf
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Other publications 3.23 It should be noted that the evidence heard by the Inquiry relating to phone hacking is not confined to NoTW and the Mirror titles. However, the evidence in relation to the use of the technique at other titles was limited and problematic. Paul McMullans belief was that the practice of phone hacking was not limited to the NoTW, but he was unable to provide any firm evidence for this belief. Stuart Hoare recalled that his brother Sean had told him that the practice was widely used at The Sun122 but, given that this was hearsay evidence, and wholly untested, it is difficult to place any substantial weight on it. Mark Lewis, a solicitor and partner at law firm Taylor Hampton, told the Inquiry that he received a compact disc which had the recording of a conversation between Mr Mulcaire and a person working for a newspaper owned by Associated Newspapers Ltd, in which Mr Mulcaire was teaching that person how to hack a mobile phone.123 However, it is difficult to see how far this evidence goes because, on its own, it does not start to establish that phone hacking was practised by anyone at any of these titles. Furthermore, although evidence from Mr Davies124 and from anonymous journalists whose evidence was related by Ms Stanistreet of the NUJ, suggested that phone hacking was being deployed through a range of mid-market, red top and broadsheet newspapers,125 this evidence, taken in isolation, is insufficient to establish, on any basis, that these practices occurred. Overall, the available evidence does not allow me to conclude to the requisite standard of proof that the practice of phone hacking occurred at any specific individual title other than the NoTW and, to the extent already discussed, the Mirror titles. There is, however, another way of examining this issue, which is to consider the evidence of a more general nature which the Inquiry has received to the effect that phone hacking was occurring on a widespread basis within the industry, that many knew of it, and that no one did anything to address it. The significance of this evidence is that it throws light on the culture, practices and ethics of the press at a truly generic level. It does not directly implicate any individual title, but it establishes the potentially broad nature of the practice across an indeterminate number of unnamed titles, as well as a cultural indifference within the industry to its prevalence. It is this evidence which now falls to be analysed. Industry knowledge of phone hacking and response to phone hacking 3.26 The Inquiry heard evidence from a number of journalists and editors which supports the conclusion that there were at the very least rumours circulating in Fleet Street that phone hacking was occurring on a systematic basis, and some evidence from travels considerably beyond the limited realm of rumour. It is convenient to commence this section by returning to the evidence of Mr Morgan. In the first volume of his published diaries, The Insider, he records under the entry for 26 January 2001 that he had been told that people might be listening to his mobile phone messages because, if the security code was not changed, then anyone could call his number and if he
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pp8-9, lines 3-13; p12, lines 2425, Stuart Hoare, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Transcript-of-Morning-Hearing-19-December-2011.pdf 123 pp26-27, lines 14-4, Mark Lewis, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-23-November-20111.pdf 124 pp111-113, lines 6-10, Nick Davies, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-29-November-2011.pdf 125 pp14-15, lines 12-15, Michelle Stanistreet, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/ Transcript-of-Afternoon-Hearing-9-February-20121.pdf
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did not answer, tap in the four digit code and listen to all the voicemail messages. Mr Morgans diary entry somewhat wryly observed it makes me wonder how much public figures and celebrities are aware of this little trick.126 Mr Morgan was asked to clarify this statement when he testified to the Inquiry. He said that, as far as he was aware, he had not previously known of this ruse,127 but could not recall who had made him aware of it.128 3.28 Mr Morgan was then asked about an interview which he gave to the Press Gazette in 2007, in which he said this:129 As for Clive Goodman, I feel a lot of sympathy for a man who has been the convenient fall guy for an investigative practice that everyone knows was going on at almost every paper in Fleet Street for years. 3.29 When asked to clarify that evidence, Mr Morgans explanation was as follows:130 Well, that was the rumour mill at the time. I mean, it was exploding around Fleet Street. I wasnt there, I hadnt been there for three years, but everyone you talked to said that he was being made a scapegoat, that this was a widely prevalent thing. I wasnt aware that it was widely prevalent in any specific form. I was hearing these rumours like everybody else. The reality is that it certainly seems to have been much more widespread at one newspaper, and we now know that the Guardian also phonehacked, so you had two newspapers. So its certainly wider apparently than just Clive Goodman, but Im not going to get into rumour-mongering because thats not really the point of this Inquiry, I dont think. Q. But were you rumour-mongering when you had the interview with the Press Gazette in 2007 or were you speaking from your own experience? A. No, I was just passing on rumours that Id heard. Q. Was this a practice which, if we may add a third newspaper to the mix, was taking place within the Daily Mirror before 2004? A. I do not believe so, no. Q. You dont believe so, or youre sure? A. I dont believe so. To the best of my recollection, I do not believe so. 3.30 This was not, in any sense at all, a convincing answer. Mr Morgan could not even resist a further side-swipe at the Guardian (he had earlier referred to that title as the self-appointed bishops of Fleet Street), perhaps in an attempt to draw attention away from the broader ramifications of the question. When linked with other evidence, his reference to the rumour mill somewhat downplayed the quality of the evidence incriminating the industry as a whole. And Mr Morgan chose his words very carefully when asked to speak about the Daily Mirror. Overall, Mr Morgans attempt to push back from his own bullish statement to the Press Gazette was utterly unpersuasive.
Morgan, P, The Insider, p278. pp63-64, lines 21-20, Piers Morgan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-20-December-2011.pdf 127 p57, line 17, Piers Morgan, ibid 128 p57, lines 18-20, ibid 129 p58, lines 6-11, Piers Morgan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-20-December-2011.pdf 130 pp58-59, lines 13-1, Piers Morgan, ibid
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Mr Morgan was also asked about what he had appeared to admit in relation to phone hacking during the course of his appearance on Desert Island Discs in June 2009, but he explained that he had misheard Kirsty Youngs question.131 But, in an article originally published in April 2007 in GQ magazine it is clear that Mr Morgan had no difficulty hearing the questions which Naomi Campbell started to put to him about phone hacking:132 Q. Ms Campbell asked you: It is an invasion of privacy though. And you say: It is, yes, but loads of newspaper journalists were doing it. Clive Goodman, the News of the World reporter, has been made the scapegoat for a very widespread practice. So youre making it clear there what your belief was in April 2007; is that correct? A. Yeah, and it seems to have been borne out by events.
3.32
Unsurprisingly, there was little or no material difference between what Mr Morgan told the Press Gazette and Ms Campbell in 2007. On this occasion Mr Morgans explanation was similar: that there were endless rumours that the practice went much further than Mr Goodman. For obvious reasons, Mr Morgan conceded that these rumours turned out to correct. Max Clifford explained in his evidence that it was common rumour in the media that mobile telephones were being hacked from early 2000 and that this was a topic which various journalists and people working in the industry discussed in his presence.133 In a similar vein, in 2002, Dominic Mohan, then the showbusiness editor at The Sun, gave a speech to members of the press at the Princess Margaret Awards in which (no doubt with a trace of irony) he thanked Vodafones lack of security for the Mirrors showbusiness exclusives. Mr Mohan accepted in evidence that this was a reference to the rumour, if not the fact, that one could hack into Vodafones mobile phones because their PIN system was so easily penetrable, particularly if the default setting had not been changed. He acknowledged that it was well known it was possible to hack voicemails fairly readily and stated there had been a number of articles printed about this, including in the Daily Mirror which, in 1998, had published a piece about the lax security around the Irish cabinets mobile phones, with part of the investigation being the hacking into voicemails.134 That said, this Irish example was somewhat stale material in the public domain. It is likely that Mr Mohans sources were both more recent and closer to home. When Mr Mohan first testified as to these matters, in particular his speech at the Princess Margaret awards, it is interesting quite how close his words of explanation were to Mr Morgans:135 Q. Wasnt the true position something along these lines: that there were rumours going around in the press, which you well knew about, which were suggesting that phone hacking was occurring on a fairly systematic basis in the Mirrors titles? Is that right or not?
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pp62-63, lines 18-3, Piers Morgan, ibid p65,lines 9-18, Piers Morgan, ibid 133 pp41-42, lines 21-6, Max Clifford, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-9-February-20121.pdf 134 pp63-65, lines 1-14, Dominic Mohan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Afternoon-Hearing-9-January-2012.pdf; pp115-117, lines 6-3, Dominic Mohan, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/02/Transcript-of-Afternoon-Hearing-7-February-2012.pdf 135 p64, lines 14-25, Dominic Mohan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-9-January-2012.pdf
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A. There were rumours in the industry. Theres always rumours in the industry about various methods, but this wasnt based upon any evidence at all. It was just the Fleet Street rumour mill. Q. You werent concerned about the law of defamation, were you, when you made this statement? A. I dont remember that I was, no. 3.35 He also explained that this speech was purely a joke, and a cheap shot at the Daily Mirror, which had had a successful year.136 Mr Mohan returned to give further evidence on a range of matters towards the end of Module One. On that occasion he was asked to explain the source of a series of articles in the Bizarre column of The Sun, because others had suggested that material evidence had been procured by phone hacking. Mr Mohan denied this suggestion, and there is no evidence to contradict him.137 It was put to him that his joke about Vodafone had raised the biggest laugh of the evening, but he claimed that he could not remember one way or the other.138 He also denied that he had borrowed Mr Morgans terminology when previously testifying about phone hacking in order to draw attention away from the fact that he knew that phone hacking had been taking place at the paper,139 (or it might be added elsewhere). In this context it is notable that Duncan Larcombe, the Royal Editor at The Sun, commented that he would not be surprised that if there were or had been the technology to intercept voicemail, it might have been being abused by some journalists on some papers.140 A number of editors, former editors and in house lawyers acknowledged in their evidence that phone hacking may have been occurring but suggested that they were not aware of the practice or that it was hidden from them. For example, Mr Wallace explained that when he was showbiz editor at the Daily Mirror, he was not aware of phone hacking being conducted by journalists on the showbiz team but acknowledged that the practice might well have taken place and been hidden from him.141 He also acknowledged that the tip off in relation to a story on Ms Jonsson, which came from the showbiz team, could have been a result of phone hacking.142 Drawing these various strands together, in my view the evidence which the Inquiry has received, viewed in the round, strongly suggests that phone hacking was a practice which, over the period from the late 1990s to the arrest of Mr Goodman and Mr Mulcaire in 2006, was occurring within the industry on a more than localised basis. The nature of the evidence currently available does not permit any more robust conclusion. Save for the evidence relating to the Mirror titles which has already been examined, it is not possible, and indeed is unnecessary, to seek to identify particular titles or to quantify the extent of the practice. Equally of interest to the Inquiry is the extent to which this practice was generally known about. The evidence of individual witnesses has been examined in some detail, and the point has already been made that the evidence of Mr Morgan, in particular, has already attracted considerable public interest. I have concluded that Mr Morgan was aware of the use of the
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p63, lines 18-21, ibid pp106-114, Dominic Mohan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-7-February-2012.pdf 138 p115, lines 10-11, ibid 139 pp116-117, lines 22-2, ibid 140 pp80-81, lines 4-12, Duncan Larcombe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-9-January-2012.pdf 141 pp7-8, lines 18-12, Richard Wallace, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-16-January-2012.pdf 142 pp74-76, lines 5-8, ibid
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technique of phone hacking in the industry, and that articles were likely to have been published on the basis of material obtained by that technique. Here, the Inquiry is referring to the issue at a level of some generality; it is unnecessary to be any more specific. Mr Morgan felt able to discuss the matter quite freely in his diary and when interviewed about it after the arrest of Mr Goodman and Mr Mulcaire. He also felt no compunction about alluding to the matter in specific terms when lunching with Mr Paxman in September 2002. For him, the issue must have been of current interest and worth talking about in that context. It is not plausible that he was making an elaborate joke about things which simply had not occurred: Mr Paxman himself felt that Mr Morgans tone was bullying,143 which, in any event, somewhat dispels the joke hypothesis. 3.39 It is not possible to reach similar critical conclusions about Mr Mohans evidence, although aspects of it gave cause for concern. It should be emphasised, however, that in arriving at its overall conclusion relating to the state of the industry over the period which has been identified, I have not simply focused on the evidence of these two individuals: all relevant evidence has been weighed and considered. My conclusion is that knowledge that phone hacking was taking place existed in parts of the industry over the period from around 2000 to 2006, and that to speak only of rumours being rife underplays the extent of the understanding and knowledge. It is to my mind both striking and of serious concern that despite that knowledge and the rumours circulating through Fleet Street, nothing public was said or done about this issue beyond a series of in-jokes at award ceremonies and unguarded references in memoires. Further, in the aftermath of convictions which definitively established that phone hacking had occurred within at least one title, minimal steps were taken within the industry to identify whether phone hacking had occurred elsewhere or to investigate the extent of these practices. For example, in 2007, after the convictions of Mr Mulcaire and Mr Goodman, TMG did not investigate whether or not there had been phone hacking by any of their journalists. Sly Bailey, the then Chief Executive of TMG, explained that there was no evidence and she did not see a need to investigate.144 The extent of her response to the convictions was to call a meeting of the editors of the Daily Mirror, the Sunday Mirror and the People, the Group managing editor and the then head of editorial to emphasise that she would not tolerate unlawful activity.145 Even as recently as 2011, a Newsnight investigation alleged that phone hacking had occurred at the Sunday Mirror, that celebrities voicemails had been hacked and that reporters had listened to phone messages and taken a note of what was said. Although TMG denied the allegations made by Newsnight, it appears that no formal complaint to the BBC was made146 and Tina Weaver confirmed was that no investigation was carried out by the Sunday Mirror
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p139, lines 8-11, Jeremy Paxman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-23-May-2012.pdf; 144 p109, line 4, Sly Bailey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-AfternoonHearing-16-January-20121.pdf 145 p18, paragraph 72, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-SlyBailey.pdf 146 Trinity Mirrors response was provided to Newsnight and quoted as part of their report: Trinity Mirrors position is clear. Our journalists work within the criminal law and the PCC code of conduct. In evidence Sly Bailey described the allegations contained within the Newsnight report as unsubstantiated and the result of poor journalism: see p111, lines 18, Sly Bailey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Afternoon-Hearing23-May-2012.pdf
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as a result of it.147 Lloyd Embley, who was appointed acting editor of the People in November 2007, was asked questions of a general nature in relation to phone hacking, and his responses resonated with those given by others:148 Q. In terms of the hacking scandal, as that broke, what was done on your newspaper to deal with that as an industry issue? A. What was done on it? Q. Yes. A. In terms of ...? Q. Can you tell me whether anything was done? A. No. I do not believe any hacking has occurred on my newspaper. Im certainly not aware of any. Ive never asked anyone to hack a telephone. Ive never seen anyone hack a telephone. Ive never heard anyone else ask anyone else to hack a telephone. Q. That wasnt quite my question. My question was really directed at whether your newspaper did anything to prevent such occurrences. A. No, because I was reassured in myself that it wasnt occurring. 3.43 Nicole Patterson, head of legal at Express Newspapers stated that no analysis of the newspapers financial records had been undertaken to see whether Mr Mulcaire or any of his associated companies had been engaged. The apparent justification of this position was that she had not been told the paper had used any entities connected with Mr Mulcaire.149 Without directly criticising Ms Patterson, her reasoning tends somewhat to circularity: in my view, some form of investigation could easily have identified whether journalists had used Mr Mulcaire to obtained information. This is not to suggest that phone hacking did take place at any of the Northern & Shell titles; the point being made is that inadequate steps were taken to establish that it had not. After all, by 2007, rumours of phone hacking were well known in the industry. It was also clear, from the ICOs publication of What Price Privacy? and What Price Privacy Now?, that large parts of the press had engaged private investigators to trade confidential information on an unprecedented scale. In that context, the convictions of Mr Mulcaire and Mr Goodman should have prompted newspapers to conduct proper investigations of the working methods of their journalists. The refrain repeated by a number of titles to this Inquiry that there was no need to launch an investigation because there was no evidence of a problem at their title simply does not wash. The potential seriousness of rumours, allegations and suspicions of phone hacking are selfevident. The Goodman and Mulcaire convictions should have sent out clear warning signals to the industry that phone hacking was a violation of the criminal law. Furthermore, at the very least, it was a grossly unethical practice unless in the pursuit of a story that was demonstrably in the public interest and of such significance that justified risking the hazards of the criminal law. Despite this, the lethargy on the part of the industry to recognise the gravity of this conduct, the reticence in conducting thorough investigations in relation to past
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pp99-104, lines 9-6, Tina Weaver, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-16-January-2012.pdf 148 p49, lines 6-22, Lloyd Embley, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-16-January-20121.pdf 149 pp19-20, lines 16-5, Nicole Patterson http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-12-January-2012.pdf
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and present conduct of journalists and the lack of a rather clearer steer from editors than has been evidenced, is disappointing and tends to support the view that phone hacking was simply not taken seriously by the industry. It is not difficult to imagine what the reaction of the press would have been if a similar scandal had been exposed in another industry. 3.46 With the exception of the sterling investigative journalism conducted at the Guardian, most other titles were slow to give prominence to the story, that is to say until the Milly Dowler story broke in July 2011. James Harding, editor of The Times, in addressing the point that The Times had been slow to pick up on the phone hacking story, acknowledged that this was potentially due to external pressures, and sought to explain that both NI and the police poured cold water on the story at the time.150 Other titles may have been concerned that giving publicity to the story might have the undesirable consequence of turning the lens of scrutiny in their direction. But July 2011 represented a sea-change in approach; the story was now too big to leave alone. As Mr Harding put it, once the Milly Dowler revelations occurred, the way in which we thought about what was happening or what had happened at the News of the World fundamentally changed, and that was not just about how widespread it was, but about the nature of the journalistic Inquiry there.151 The victims 3.47 Through all this, it is important not to lose sight of the victims of phone hacking. The reason why it matters that large parts of the press failed to take allegations of phone hacking seriously is not simply the fact that phone hacking is illegal; it is also because phone hacking amounted to an egregious breach of personal privacy and dignity which had seriously detrimental consequences on many of its victims. That large parts of the press were so slow in acknowledging this fact adds to the sense that there is, within those parts of the press, a cultural indifference to individual privacy and dignity. The diversity of the targets of phone hacking is striking. Without engaging in a very detailed analysis, it is not possible to identify any particular class of person who was more likely to be a victim than any other class. Although the targets included a large number of celebrities, sports stars and people in positions of responsibility, they also included many other ordinary individuals who happened to know a celebrity or sports star, or happened to be employed by them. Other victims had no association with anyone in the public eye at all, but were, like the Dowlers, in the wrong place at the wrong time. The impact of phone hacking on its victims was clear: the experiences of the Dowlers, Ms Miller and Ms Field were referred to elsewhere.152 Similar evidence was also given by Ms Church,153 who explained she had been shown information that confirmed that her voicemail had been hacked when she was aged just 17. Ms Churchs evidence as to the impact of phone hacking was striking: she said that she questioned how information was getting into the public
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pp3-7, lines 19-23; pp14-16, lines 13-23; Lawrence Abramson, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/12/Transcript-of-Morning-Hearing-13-December-2011.pdf; pp87-89, lines 7-4, James Harding http:// www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning-Hearing-17-January-2012.pdf; p35, lines 5-12, Colin Myler http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-MorningHearing-15-December-20111.pdf ; p42, lines 1-25, Julian Pike, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/12/Transcript-of-Morning-Hearing-13-December-2011.pdf; pp43-47, lines 14- 8, John Yates, http:// www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-Afternoon-Hearing-1-March-2012.pdf 151 p87, lines 15-24, James Harding, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-17-January-2012.pdf 152 Part F, Chapter 3 153 pp14-16, lines 17-8; pp29-31, lines 20-18; Charlotte Church, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Transcript-of-Afternoon-Hearing-28-November-20111.pdf
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domain and questioned the loyalty of her friends. Ms Church explained that she tried to cut people out of her life to reduce the number of people who could potentially leak information and she felt a sense of guilt having accused people when it was subsequently revealed that phone hacking was a more likely cause of the information being in the public domain.154 3.50 HJK gave evidence of the serious professional consequences of phone hacking: he/she had not been aware of an important professional message left on his/her voicemail as it had been hacked into, and as a consequence essentially accused a client of lying when the client (correctly) claimed to have left a voicemail message for him/her.155 Others, such as journalist Joan Smith, gave evidence of the complete shock on learning she had been a victim of phone hacking, particularly because the hacking had taken place shortly after her then partners daughter had died in a high profile skydiving accident and her belief was that her phone was hacked in relation to that story.156 Her evidence resonated with that of the Rt Hon Tessa Jowell MP, who described her reaction on hearing of the multiple interceptions of her phone messages as one of shock and stated that the invasion of [her] privacy was total during that period.157 Throughout the Inquiry, not a single witness suggested that any of the specific examples of phone hacking by the NoTW was justified in the public interest, and there is not a shred of evidence to suggest it was. Instead, it appeared to be a practice which, on the whole, was directed at obtaining information about the private lives of those in the public eye tittle tattle cheaply. It may well have been cheap for the newspaper titles who utilised the technique, but it cost its victims dearly.
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F
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Email hacking
The Inquiry has heard some evidence of computer and email hacking at both tabloid and broadsheet publications, and undertaken by journalists directly as well as through intermediaries. As with phone hacking, computer and email hacking is a criminal offence158 to which there is no public interest defence. For the avoidance of doubt, as with phone hacking the Inquiry has seen no evidence to suggest that a public interest defence, even if available, could have been successfully raised in any individual case, save to the very limited extent expressly referred to below. The scale of these activities is even more difficult to assess than phone hacking, in particular because the methods used to obtain the information require a greater degree of technological know-how and may well be harder to detect. I am conscious of the need not to speculate without sufficient evidence as to whether and, if so, to what extent, computer and email hacking has taken place and whether this has been perpetrated by journalists, or by third parties engaged by journalists for this purpose. However, it is important to record the evidence the Inquiry has heard on this issue as an example of conduct which may, and I put it no higher than this, have been more widespread than these examples. Ian Hurst, a former member of British military intelligence, told the Inquiry he was informed by a BBC journalist working for the Panorama programme that there was evidence that he had been targeted by a private investigator engaged by NoTW; that private investigator had
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pp14-16, lines 17-8; pp29-31, lines 20-18 Charlotte Church, ibid pp9-10, lines 10-10, HJK, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-MorningHearing-24-November-2011.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statementof-HJK.pdf 156 pp31-36, lines 22-25, Joan Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-21-November-2011.pdf 157 pp58-67, lines 1-17, Tessa Jowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-21-May-2012.pdf 158 See the Computer Misuse Act 1990
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then employed a private detective specialising in applying and controlling computer viruses to hack into his computer. He explained he was shown a fax which contained information from his emails, and an extract from specific emails copied into the fax which had been sent to the NoTW offices in Dublin during the time he was working in Northern Ireland in 2006. In this instance, the basis for the email hacking seems unlikely to be related to Mr Hursts private life, but rather his role in recruiting and running agents in Republican terrorist groups. He further explained that hacking into emails was achieved through the use of a Trojan worm inserted into the computer hard drive, in this case by way of an email being sent and opened.159 This allowed the hacker to see all emails sent and received by Mr Hurst for a three month period. 3.54 Jane Winter of British Irish Rights Watch was told in July 2011 that email communications and documents which had been sent by her to Mr Hurst had been illegally accessed, including attachments to emails of a confidential and sensitive nature. The effect of the hacking was described as chilling by Ms Winter because unauthorised access to material has the potential to compromise official investigations and the safety of individuals.160 In Ms Millers amended claim against NGN she alleged that in September 2008, her email account was hacked into using the same password as her mobile phone password, and that private messages were accessed. On 12 May 2011, News International admitted all the causes of action pleaded in her civil claim, including the allegation of email hacking.161 The Inquiry also heard evidence in relation to the alleged hacking of an email account at The Times, but for reasons which have already been explained it is inappropriate to explore this issue in detail. John Ryley, Head of Sky News, told the Inquiry that during his 12 years as a senior executive, he was aware of two cases in which Sky News had authorised a journalist to access the email accounts of individuals suspected of criminal activity, on the grounds that this decision was justified in the public interest. In one of these cases, the material that was discovered by the Sky News journalists was of sufficient importance and relevance to criminal investigations that it was handed to the police and used to prosecute an individual.162 Overall, it is safe to conclude that email hacking has taken place in recent years. However, particularly in advance of the conclusion of the investigations by the officers on Operation Tuleta, the evidence of email hacking is insufficiently robust to found any conclusions relevant to the culture, practices and ethics of the press. In those circumstances, the matter cannot be taken any further forward.
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pp45-48, lines 20-23; pp52-54, lines 3-20, Ian Hurst, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Transcript-of-Morning-Hearing-28-November-2011.pdf; pp2-4, para 10-15, http://www. levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Ian-Hurst.pdf 160 pp67-69, lines 25-18, Jane Winter, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Morning-Hearing-28-November-2011.pdf and p1, para 2, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Witness-Statement-of-Jane-Winter.pdf 161 pp3-4, para 10-14, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-SiennaMiller.pdf; p35, lines 11-20, Sienna Miller, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Morning-Hearing-24-November-2011.pdf 162 John Ryley, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-JHR1.pdf Mr Ryley further explained that Sky News conducted a review which concluded in July 2011 which found no evidence of illegal or improper conduct on the part of Sky News journalists accessing any third party e-maiIs, save for the two instances detailed at pp4-6, para 10-14; pp6-21, para 17-52, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/ Witness-Statement-of-John-Ryley.pdf ; pp2-4, lines 15-21; p10, lines 2-13; pp21-22, lines 9 -12; p35, lines 6-18; pp3638, lines 21-10, John Ryley, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of-MorningHearing-23-April-20121.pdf
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Blagging
3.58 The evidence of a number of witnesses has addressed the use of blagging techniques to obtain personal information. The term blagging refers to obtaining information by impersonating someone entitled to the information, either in person, by telephone or through other methods of communications. Usually, but not always, blagging will constitute an offence under s55 of the Data Protection Act 1998 (DPA). In instances where this provision applies, it should not be overlooked that the statute contains a public interest defence. In instances where this provision does not apply, and assuming that no other offence such as one under the Bribery Act 2010 or its predecessor legislation is in play, no issue of potential criminal liability could arise, but ethical considerations obviously would. The Inquiry has heard that blagging and impersonation techniques were used by journalists directly and by intermediaries engaged by journalists for this purpose. A significant part of the narrative relating to the use of blagging techniques is the evidence revealed by Operation Motorman163, which is addressed elsewhere in the Report.164 However, it is worth recalling in this context that the ICO investigation identified a widespread trade in personal information, driven in significant part by journalists, and uncovered conclusive evidence that Mr Whittamore was regularly engaged personally, or through associates, in the use of blagging techniques to acquire information which was then sold to journalists. In 2003 Richard Thomas, the then Information Commissioner, wrote to Sir Christopher Meyer, former Chairman of the Press Complaints Commission, identifying the problem in the following terms:165 It is clear from the very considerable volume of material that our investigations have collected that journalists from most national newspapers and many periodicals are significant customers of the enquiry agents concerned. We have obtained extensive and detailed records showing that numerous journalists routinely obtained confidential information they should have no access to. Such information has, for example, been obtained to produce articles on the personal lives of celebrities and others currently or prospectively in the public eye, where there appears to be no suggestion of using it to expose wrong-doing We have also obtained extensive records which show payments by newspapers for the confidential information which has been obtained through these channels. Given the sums involved, and the nature of the documentation, it is difficult to believe that senior managers were not aware of what was going on, and were therefore at least tacitly condoning it. In short, the material which has already been collected by my office indicates widespread reliance by the press on information which is obtained by deception or by bribing corrupt employees. 3.61 The documents retrieved as part of Operation Motorman reveal that in many instances information would be obtained by Mr Whittamore, or through his associates, by blagging techniques. As has already made clear, the Inquiry accepts the evidence of Mr Thomas that any possible public interest justification is likely to have been non-existent save in a few instances.
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pp44-71, lines 17-13, Brendan Gilmore, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/ Transcript-of-Morning-Hearing-9-May-2012.pdf 164 Part E, Chapter 3 165 Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-3.pdf
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In addition to the evidence heard in relation to Operation Motorman, the Inquiry heard evidence that a number of journalists were themselves responsible for blagging or attempting to blag information for stories.166 The Inquiry also heard that in some instances specific information would be blagged through the use of intermediaries, possibly in order to facilitate phone hacking which would be conducted by the journalist directly. For example, Mr Davies in his evidence explained that Mr Mulcaire would often not listen to voicemail messages himself, because this was mostly done by the journalists; but Mr Mulcaire would enable this to take place because he, as a brilliant blagger, would get information and data from a mobile phone company and pass this to journalists.167 Alex Owens (the ex-police investigator who worked with the Information Commissioner) took a similar view in relation to the activities of Mr Whittamore, namely that he was gathering the numbers he wasnt hacking, he was definitely not into hacking, we found no evidence of that. But he was then passing them to the papers and possibly those numbers were being passed to people who hacked.168 As with phone hacking, the practice of blagging was not confined to a handful of rogue reporters, nor was it confined to a particular section of the newspaper market. Journalists from across the range of newspaper titles were engaged in using blagging techniques and the Inquiry heard evidence that these techniques were known, or at the very least rumoured, to be occurring widely within the industry. For example, Mr Davies in his book Flat Earth News, published in 2008, made reference to the fact that, by the mid-1990s, Fleet Street was employing several dozen different agents to break the law on its behalf, mostly private investigators, and a few were ordinary civilians who developed the knack of blagging confidential information out of banks and phone companies.169 Some examples of the practice of blagging provided by Ms Rowling and the anonymous witness HJK were addressed above.170 Further examples were heard from other likely victims of the practice. The Rt Hon Alex Salmond MSP explained that he believed his bank account was accessed by the Observer newspaper in 1999 after a former Observer journalist gave him a fairly exact account of the contents of his account, that could only be known to somebody who had seen it.171 Alastair Campbell gave evidence to similar effect, namely that he had received calls from his bank and telephone companies indicating individuals had tried to access his accounts.172 Bob Crow, General Secretary of the National Union of Rail Maritime and Transport Workers (RMT), explained how he believed someone had telephoned the DVLA stating (falsely) that a motorbike had broken down and providing the registration mark of the vehicle. That person requested from DVLA the name and address of the owner of the vehicle, and these details were provided. They were then supplied to Mr Whittamore. Howsoever this request was
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pp115-117, lines 14-4; pp118-119, lines 1-7; pp121-122, lines 3-14, Sharon Marshall http://www.levesoninquiry.org. uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-20-December-2011.pdf 167 pp93-94, lines 14-5, Nick Davies, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-29-November-2011.pdf 168 pp40-41, lines 12-7, Alex Owens http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-30-November-2011.pdf 169 pp111-113, lines 6-10, Nick Davies, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-29-November-2011.pdf 170 Part F, Chapter 3 171 p16, lines 6-18, Alexander Salmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-13-June-2012.pdf 172 pp83-84, lines 25-6, Alastair Campbell http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Morning-Hearing-30-November-2011.pdf
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commissioned and what explanation was given is unknown but the information was passed on to Associated Newspapers Ltd to produce an article.173 3.66 Although one cannot be sure, it does not appear that there could have been a public interest justification for obtaining evidence by these means in any of the examples described. Moreover, these were not isolated instances,174 but tend to illustrate the breadth of information being sought by the press: from bank accounts details, to addresses and to medical records. A further notable example of the practice was provided to the Inquiry by Matt Driscoll, a journalist formerly employed by NoTW. He explained that he was investigating a story into health problems of a prominent football manager, and his then sports editor had obtained the medical records of the individual concerned. Mr Driscoll said that he was told they had been obtained through blagging techniques, and that it was possible to obtain this information through an investigator sending a fax to a GP or a hospital saying Im his specialist, I need these details; apparently many times the information would get sent straight back. Mr Driscoll thought it unlikely the sports editor had carried out the blag himself, but noted that there were special people on the news desk or features desk he went to.175 His evidence was further that specialist actors would be employed to obtain private information.176 Although it was clear that no possible public interest defence could have been run in the example provided by Mr Driscoll, it is important to reflect on the extent to which the blagging activities that have formed the evidence received by the Inquiry could generally be justified as being in the public interest. It is appropriate to commence this analysis with a number of examples of blagging which would satisfy the public interest test. First, Mr Davies recalled that a senior executive at the Guardian was responsible for procuring House of Commons notepaper and writing to a hotel in Paris to obtain a copy of Jonathan Aitken MPs hotel bill, this becoming a famous incident its referred to as the cod fax. Mr Davies accepted that this conduct was blagging but, in this instance, there was clearly a public interest justification for it.177 Second, journalist David Leigh, at the time a reporter with the Observer, told the Inquiry that, in order to try to prove a connection between Mark Thatcher, Mr Amunyi, an arms company executive, and a defence company. Mr Leigh telephoned Downing Street asking to be put through to Mark Thatcher, impersonating Mr Amunyi. He then had a conversation about a potential arrangement between Mr Thatcher and the arms company, deceiving Mr Thatcher
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pp39-41, lines 2-22, Bob Crow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-25-January-20121.pdf; p2, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Witness-Statement-of-Robert-Crow.pdf 174 The Inquiry heard evidence from other individuals who had been victims of blagging, for example: pp20-24, lines 9-3, Hugh Grant, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-AfternoonHearing-21-November-2011.pdf; pp11-12, lines 9-18, Steve Coogan, http://www.levesoninquiry.org.uk/wpcontent/uploads/2011/11/Transcript-of-Afternoon-Hearing-22-November-20111.pdf; pp23, para 9, http://www. levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Charlotte-Church.pdf; pp31-34, lines 19-5, Charlotte Church, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Afternoon-Hearing28-November-20111.pdf; pp105-109, lines 11-8, Jacquelines Hames, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/02/Transcript-of-Morning-Hearing-28-February-2012.pdf 175 pp13-21, lines 1-5, Matt Driscoll, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-19-December-2011.pdf 176 p1, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-MatthewDriscoll.pdf 177 pp16-17, lines 15-20, Nick Davies, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-29-November-2011.pdf
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into thinking he was Mr Amunyi. Mr Leigh defended his conduct on the basis that it was in the public interest as he was investigating impropriety of a public figure, and in this instance the defence appears to be well-founded.178 3.71 Jon Witherow accepted that journalists at The Sunday Times had used blagging in the past, and also impersonation techniques.179 He gave some examples of cases where blagging and impersonation techniques had been used in investigations undertaken by the newspaper including: in the 1980s, to establish financial links between the striking National Union of Mineworkers and Colonel Gadaffi; in the cash for questions articles which revealed that MPs were prepared to take money for asking Parliamentary Questions, a reporter posed as a businessman in order to deceive the MPs; and where a reporter posed as a potential donor to investigate the cash for honours scandal.180 Further, as part of an investigation into whether Labour peers were prepared to propose amendments to legislation in return for cash, reporters went undercover as lobbyists to try to obtain an amendment in return for cash. In all these cases, which have not been thoroughly investigated by the Inquiry, the potential for a public interest justification seems clear. The Inquiry is therefore content to proceed on the basis that the practices in these cases were justified as being in the public interest. A number of the Core Participants have submitted to the Inquiry that conclusions of a generic nature should not be reached about the practice of blagging, for two principal reasons. First, it is pointed out that a public interest justification for the practice has been shown to exist in a significant number of examples, and might exist in many others. Overall, it is argued that the Inquiry cannot assess the evidence, and the applicability of the potential defence, with sufficient robustness to make any generic or cultural conclusions. Secondly, it is pointed out that the Operation Motorman evidence is now stale, and that the Inquiry should accept the evidence of both the current and the former Information Commissioner that the press had got its house in order and no longer deployed practices of this sort. As for the first of these arguments, the Inquiry is entitled to adopt a commonsense approach. In relation to the Operation Motorman material, a consideration of the material obtained by Mr Whittamore suggests that, in the vast majority of cases, it would have been extremely difficult to mount a public interest defence. This is also no more than Mr Thomas has pointed out. In respect of what may be called genuine investigative journalism, and in cases where there was some evidence to justify a line of Inquiry which could not have been fruitfully pursued by other means, the use of blagging could have been justified; the Inquiry has provided some instances where such a conclusion would appropriately be reached. In other instances, however, the activity could better be characterised as fishing rather than as justifiable in the public interest. And then there is a whole body of cases, indeterminate in size and range but clearly more than isolated instances, well outside the envelope of genuine investigative journalism, in which the practice of blagging is very likely to have been unlawful and almost certainly unethical. The scale of the practice cannot be quantified with precision, but all the available evidence demonstrates that it occurred on a sufficiently prevalent basis to be cultural, and worthy of adverse comment.
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pp71-77, lines 14-4, David Leigh, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-6-December-20111.pdf 179 pp11-12, lines 23-8, Jon Witherow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-17-January-2012.pdf 180 p7, para 28-29, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-JohnWitherow.pdf
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The second argument is more difficult to address for a number of reasons. In the specific context of Operation Motorman, I accept the evidence of the current Information Commissioner, Christopher Graham, that his office has received no recent complaints of breaches of the DPA by journalists.181 Although he would have expected to receive complaints had relevant victims known of unlawful activity concerning them, it is the nature of the offence under this statute that it will typically be silent; after all, the evidence in Operation Motorman was only revealed after the police were conducting a criminal investigation in which they involved the Information Commissioner (in the person of Mr Owens) who picked up a thread that led to Mr Whittamore. Thus the absence of evidence does not prove a negative (namely that the practice has ceased), but it is right to point out that there is no evidence which proves that the type of conduct exemplified by the Operation Motorman material has continued in recent years. Looking at blagging more widely, it is impossible to reach any firm conclusions. Blagging has been a practice of some considerable pedigree and extent. It certainly formed part of the culture, practices and ethics of the press for many years and was frequently not justified by the public interest. Is it plausible that such an ingrained practice has been totally eliminated, except where justified by the public interest? The short answer, notwithstanding the paucity of recent evidence bearing on any particular title, is no. This is most assuredly not to condemn legitimate investigative journalism in the public interest in which blagging undoubtedly plays its part. This is supported by the evidence of Ian Hislop who stated in terms of blagging, I dont throw my hands up at blagging. There have been some very effective blags.182 I have no doubt that Mr Hislop is correct and that there are many instances that can be identified where blagging techniques had been used to obtain information clearly in the public interest and thus both in accordance with the law and ethical journalism. But that is not a fair portrayal of the picture. Aside from the breadth and currency of the practice, little of which apparently can be seen to have any legitimate public interest justification, it is appropriate to consider the manner in which the press as a whole responded to the problem when its prevalence and the concern about it was incontestable. By way of specific example, Mr Driscoll explained that he considered the reaction to blagging in the newsroom was one of mirth.183 Viewing the matter at a somewhat higher level of generality, the industry response to the Operation Motorman revelations, and its approach to the use of private investigators and enquiry agents generally, is itself revealing and is examined below in respect of various titles.
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Mail on Sunday 3.78 The Inquiry heard evidence from the then editor of the Mail on Sunday, Peter Wright, in relation to the steps taken to investigate the use of Mr Whittamores services following his arrest in March 2003 and charge in February 2004. Mr Wrights evidence was that the managing editor had issued an instruction around February 2004 (although not as a direct consequence of Mr Whittamore being charged) that his services should only be used in
p6, lines 10; p23, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-26-January-2012.pdf 182 p6, lines 12-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning-Hearing17-January-2012.pdf 183 p1, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-MatthewDriscoll.pdf
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narrowly defined circumstances, namely with authorisation from departmental heads who had to be satisfied that other means of obtaining information had been exhausted. Save for two payments made to Mr Whittamore in early 2005, Mr Wright told the Inquiry that the Mail on Sunday stopped using Mr Whittamore in September 2004. 3.79 It follows from Mr Wrights evidence that the Mail on Sunday was still using Mr Whittamore, albeit within certain parameters, after he had been charged with offences relating to the unlawful acquisition of private information.184 It appears from Mr Wrights evidence that no investigations were undertaken by the Mail on Sunday to identify which journalists were using Mr Whittamores services, whether or not they had been procuring the commission of offences, and whether there was a public interest defence for the activities and the information being obtained. Mr Wright said in his evidence why would I go and look for something that hadnt been suggested to me? I mean, I could begin from the assumption that every single enquiry that we make involves illegal activity of some sort, but I cant do that.185 Whilst it may have been going too far to assume every enquiry made of Mr Whittamore was unlawful, there was a serious risk that in relation to some types of information, for example seeking friends and family numbers, or criminal record checks, breaches of s55 of the DPA had occurred. Certainly by the time the second report of the Information Commissioner was published in December 2006, it was clear that the types of inquiries being made, for example criminal record checks, were probably unlawful. Mr Wright went on:186 I was aware by the time What price privacy? came out that the appropriate authorities, i.e. the Information Commissioner and the police, had conducted an investigation into this, that in I think two or three cases they had found evidence that they thought warranted a prosecution, which resulted in a conditional discharge. I didnt see the need to go over ground that they had gone over themselves, bearing in mind also that we didnt have and werent shown the evidence, Whittamores log books, on which the Information Commissioner based his research. 3.81 Without criticising Mr Wright, whereas the Information Commissioner and the police had investigated Mr Whittamore and a number of his associates, those entities had not investigated the activities of any journalists. Had there been any such investigation, the employers of the journalists involved would have been made aware. It follows that an investigation by the Mail on Sunday into the activities of its journalists would not have been going over old ground but would have the potential to uncover new ground. The Mail on Sunday accepted the overall findings of the Information Commissioner which included that 33 Mail on Sunday journalists had used Mr Whittamore for 266 transactions. In April 2007 the Mail on Sunday banned the use of all external search agencies.187
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pp91-110, lines 14-11, Peter Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-11-January-2012.pdf; pp7-8, lines 10-17, Peter Wright, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/01/Transcript-of-Afternoon-Hearing-11-January-2012.pdf 185 p93, lines 13-17, Peter Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-11-January-2012.pdf 186 p94, lines 14-24, Peter Wright, ibid 187 pp91-110, lines 14-11, Peter Wright, ibid; pp7-8, lines 10-17, Peter Wright, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/01/Transcript-of-Afternoon-Hearing-11-January-2012.pdf
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Daily Mail 3.82 Paul Dacre explained in evidence that, whilst he was aware of the use of Mr Whittamore from around 2004/2005, he was not aware of the extent to which his services were being used by journalists at the Daily Mail. Mr Dacre was asked to explain why he did not initiate an investigation at this time into the extent to which Mr Whittamores services were being used by the Daily Mails journalists. He replied:188 A. I dont think thats fair because everybody everybody, every newspaper and I see the BBC spent nearly as much on enquiry agents as we did was using him. We didnt realise they were illegal. There was a very hazy understanding of how the Data Protection Act worked and this was seen as a very quick way of obtaining phone numbers and addresses to corroborate stories. Q. Regardless of what other bodies might have been doing with search agencies, were talking about what the Daily Mail was doing with Mr Whittamore, who, after all, had had his collar A. Well, I mean no, but I mean all newspapers were using virtually all newspapers were using Whittamore. Q. Are you saying that that would be a reason for the Daily Mail not carrying out a proper investigation into the extent of the possible illegality, Mr Dacre?
A. Well, its very difficult to say that. The story of Operation Motorman barely registered on the consciousness. I dont think it made much in the papers. One was aware of it, I suspect, that the man had been given a conditional discharge. All newspapers were still using this agency. I repeat: we thought it was we believed and the journalists believed that it was to get phone numbers quickly. Im not sure an investigation at that stage was warranted. Q. Regardless of how quick and efficient this might have been as a means of obtaining information, the concern, of course, is that this mode of information-gathering was illegal. Didnt that cause you greater concern, Mr Dacre? A. We didnt believe it was illegal. Our journalists were asking for information and Im not sure that the implications of the Data Protection Act were understood at that stage. 3.83 This was revealing evidence on account of the light it throws on the culture, practices and ethics of the press. The argument that most other national newspapers were also using Mr Whittamores services does not tend to demonstrate the legality of the practice. At best, this is a neutral factor which ought not to have engendered any degree of complacency. The fact that no other newspaper carried out an investigation into what their journalists knew as to Mr Whittamores methods, despite their obvious wherewithal to do so, is a solid pointer to the ambient culture. Although Mr Dacre does not merit being singled out in this regard, his belief that his journalists were acting lawfully is something of a concern and certainly ought to have been put into question by the Operation Motorman disclosures. Notwithstanding that data protection was somewhat of a Cinderella subject ten years ago, it is somewhat surprising that extensive newspaper operations, which clearly were involved in handling data all the time, had not
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pp49-50, lines 11-20, Paul Dacre, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-6-February-20121.pdf
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ensured that they were sufficiently briefed on the implications of the data protection regime when the Act was passed; and this is to say nothing of what newspaper titles ought to have done to investigate the implications of the Motorman disclosures. 3.85 The second report published by the Information Commissioner placed the Daily Mail at the top of league table, with some 958 transactions which were claimed to have been identified positively as illegal, involving 58 journalists. In the aftermath of this report, Mr Dacre took a numbers of steps to respond to these revelations, including: writing provisions requiring compliance with the DPA into the contracts of journalists employed by the Daily Mail; holding seminars to give training to journalists on this issue; and contacting all third parties that had been used for research and information, including genealogists, tracing and search agencies, credit reference and information agencies and Inquiry agents by the Daily Mail, and asking each for an assurance in writing that their operations complied with the DPA.189 Further, in April 2007 Mr Dacre banned the use of search agents by the Daily Mail. Since that time, four named organisations have been approved for use by the newspaper, namely a genealogical research agency, a credit information company for business information and two tracing agencies.190 The Daily Mails actions between December 2006 and April 2007 were entirely appropriate and responsible. Mr Dacre summarised his evidence in the following way:191 All I am try to tell you is that when I did know the extent of it, I moved decisively and ruthlessly to stamp it out. Other newspapers didnt and we did. and In 2007 the Daily Mail brought the shutters down and banned absolutely the use of the Whittamore enquiry agencies. 3.87 Mr Dacres reference to what other newspapers were not doing will be addressed in due course. In relation to the Mail titles, the issue of whether the shutters have indeed been wholly brought down has been disputed on behalf of the Core Participant Victims. First, it is said that the Whittamore data may still be located in the offices of Associated Newspapers Ltd, because it is common ground that no positive steps have been taken to locate and erase it. That said, given the evidence that such data was not filed electronically but jotted down in journalists notebooks, this appears unlikely and, in any event, is very difficult to investigate. Second, it is pointed out that some of the journalists using Mr Whittamores services a decade ago are still working for the company in more senior positions. Even so, in fairness to Associated Newspapers Ltd, I accept that it would have been impossible to investigate or discipline employees so many years after the events in question. A fairer criticism of these titles relates to the lack of any investigation at an earlier stage. Northern and Shell 3.89 Peter Hill, editor of the Daily Express from December 2003 to February 2011, said in evidence to the Inquiry that he was not aware of the Information Commissioners reports, could not recall reading them, nor did he consider they were relevant on the basis that the Daily Express
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p14, para 42-45, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-PaulDacre.pdf 190 p14, para 42-45, ibid 191 p62, lines 19-22; p49, lines 3-5, Paul Dacre, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/ Transcript-of-Afternoon-Hearing-6-February-20121.pdf
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had never used anything of that kind. This does not precisely tally with the Information Commissioners report which identified that a handful of journalists from the Daily Express had sought information from Mr Whittamore on around 20 occasions. Mr Hill accepted that the more accurate position was that he had no idea whether private investigators were ever used by the Daily Express and there was no evidence to suggest that an investigation had taken place.192 3.90 The lack of knowledge of the extent to which private investigators and search agencies had been used at the Daily Express resonated with evidence relating to the Daily Star. Dawn Neesom, current editor of the Daily Star, acknowledged that she had not been aware that search agencies had been used until this had been brought to her attention by her legal team, and acknowledged that it had surprised her that these methods had been deployed.193 She explained that, at the Daily Star, the lineage sheets showing payments made were signed off by the deputy editor and these did not come to her attention. It was also apparent from Ms Neesoms evidence that the corporate governance system at the Daily Star essentially consisted of what she described as a financial system and a staff handbook; there were no processes or procedures in place to ensure transparency of conduct and accountability for methods used to obtain information, with the sums paid for this purpose. In answer to a question directed to the adequacy of corporate governance at the paper, Ms Neesom conceded:194 I think there might be some truth in that. Our system would throw up things financially, I think, as Nicole discussed earlier on, and on the lineage sheets those things would come up. On the Daily Star, the lineage sheets are always signed by my deputy editor, I dont sign them, and as I said, the figures seemed to be 50, 70 here and there, so its not something that would come to my notice in that way. 3.91 3.92 Ms Neesom explained that the current system was under review, in particular a proposal to introduce some training for new journalists joining the team. Ms Patterson, explained in her evidence that an internal investigation had been commenced in July 2011 in relation to phone hacking, blagging and associated activities from 2000.195 Ms Patterson said that she had asked news editors and other editors and deputy editors for names of search agents or private investigators that had been used and these names were searched in the accounts. Whilst Ms Patterson stated she felt she had done what she could, she acknowledged that the internal investigations into the use of search agencies and private investigators had not been straightforward. Ms Patterson explained that she had encountered problems in trying to marry up the payments made, often in the region of 75 or 90, with particular information, noting that whilst the invoices may contain the heading of the article it was not always apparent what information had been the subject of the request. She explained that it was almost impossible to match up the activities of Mr Whittamores company with the financial records and any particular journalists. She said that where fixed fees appeared regularly, for example 75, these appeared to relate to searches for the same type of information. However, where fees were higher, sometimes more than 1,000, she understood that this was a different type of search, or subject to negotiation.
3.93
pp14-15, lines 3-18, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-12-January-2012.pdf 193 pp43-45, lines 8-15, Dawn Neesom, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-12-January-2012.pdf 194 p44, lines 16-23, ibid 195 pp6-20, lines 1-5, Nicole Patterson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-12-January-2012.pdf
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Ms Patterson was not aware if JJ Services (one of Mr Whittamores companies) was still being used by Northern & Shell at present, although an examination of the records demonstrated that it was being engaged as recently as 2010.196 When asked to explain why Northern & Shell had still been using the services of Mr Whittamore in recent years, Ms Patterson said:197 Its a matter for the news editor and the editor. Its not something that is within my remit, Im afraid, and I cant speak for them. Q. No, you cant. Have you drawn these matters to the attention of the news editor and the editor? A. Yes. Q. And what advice you dont have to tell us the advice. A. No. Q. But I think what you can tell us is whether this is being pursued with Mr Whittamore? A. I cant tell you that. Q. Okay. You cant because you wont or because A. No, because I dont know This was another revealing answer. It speaks for itself.
3.95
Ms Patterson was not able to assist with the nature of the information that was being obtained by the search agencies, and also highlighted that it was in the circumstances difficult to identify what sums had been paid for precisely what services: for example, a sum was sometimes quoted as a day rate, and it remained unclear to what this rate related.198 In my view, these investigations could have been pursued with more success if the five search agencies that had been used had been contacted with a request to provide a detailed explanation of the work completed for Northern & Shell, the methods deployed in each case and sources used to attain information. However Ms Patterson explained this had not been done. Paul Ashford, group editorial director of the Northern & Shell companies, explained that he was not aware of the Information Commissioners reports until around 2010.199 He explained that he had some concern as to whether any inappropriate action had taken place, but he was informed by the legal department that agencies had been used as a means of finding out contact information, so it was fairly low profile stuff and he was not overly concerned about this. The fact that the Daily Express was still using Mr Whittamore as late as 2010 was not brought to his attention. In terms of payments, Mr Ashford explained that the invoices primarily showed amounts of 75 or 90, but in some cases there were invoices for 1,000. Surprisingly, there was no mechanism for determining precisely what the 1,000 was purchasing: for example, whether this was the total of the searches conducted on one day, or on a number of days, or simply one request. Mr Ashford accepted that the systems were, rightly, being reviewed and it would be a good idea to have a system where it was possible to see with enough detail what has been purchased.
3.96
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p14, lines 25, ibid pp15-16, lines 18-5, ibid 198 pp18-19, lines 24-3, ibid 199 pp32-35, lines 22-14, Paul Ashford, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-12-January-2012.pdf
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News International 3.98 Mr Witherow, confirmed that one journalist at The Sunday Times had made use of Mr Whittamore for four tasks. Certain investigations had been undertaken which revealed that one such task was to trace the phone number of a former Home Office official who could not be contacted through the Home Office. However, these investigations had not been easy as the individual had left the newspaper.200 Two points ought to be made about this. First, the extent of the problem at The Sunday Times had been minor, given that it only related to four cases. Second, this newspaper did more than others to carry out an investigation.
3.99
3.100 Thomas Mockridge, chief executive officer of NI, explained that the newspapers under his wing did not now employ private investigators (whom he defined as individuals who sought to obtain information not otherwise in the public domain), save in circumstances where a request was made by an editor to Mr Mockridge and consent was given. He explained he had not given approval for the use of private investigators to date. In relation to search agents (whom he defined as agencies obtaining information from publicly available records), these were subject to the general governance of the company and were restricted in the ways they operated, being held to the same standards as employees. Mr Mockridge accepted that the methods being used by search agencies may require positive control by the newspaper and ongoing attention to ensure the methods used were satisfactory.201
Trinity Mirror 3.101 Mr Embley, who was appointed acting editor of the People in November 2007, some 12 months after the publication of the Information Commissioners second report, said in evidence that he was unaware whether any investigations had been carried out as to whether or not transactions by People journalists with Mr Whittamore were legal or illegal. Mr Embley accepted that historically there had been a failure on the part of the media generally to respond to warnings; however, in relation to the People specifically, his evidence was to the effect that nothing had been done to react to warnings because he felt that no action was required.202
Conclusion
3.102 In reflecting upon what steps have been taken between the publication of the Information Commissioners Reports in 2006 and the present, both to investigate the use of private investigators and cash payments and improve governance structures to prevent the continued use of unethical practices, it is clear that different newspaper groups have adopted varying responses. That said, it is possible to draw at least two conclusions from the evidence heard by the Inquiry.
pp13-14, lines 19-13, Jon Witherow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-17-January-2012.pdf 201 pp49-51, lines 5-15, Thomas Mockridge, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-17-January-2012.pdf 202 pp47-50, lines 22-2, Lloyd Embley, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-16-January-20121.pdf
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3.103 First, a number of newspapers were very slow off the mark to respond to the fact that Mr Whittamore was arrested in 2003, and charged in 2004, for offences relating to the unlawful acquisition of private information. The majority of newspapers continued to use Mr Whittamore and his companies after his arrest, and in those circumstances there must have been at least some risk that journalists engaging him might have been receiving information which had been unethically, if not unlawfully, obtained. The Inquiry has received no evidence that newspapers sought express written assurances from Mr Whittamore explaining his new modus operandi and confirming that his operation would now be both ethically and lawfully carried out. 3.104 The arrest of Mr Whittamore in 2003 and subsequent charge, compounded by the knowledge (in some cases) that his services were being used, merited an investigation by newspapers as to the circumstances in which his services had been commissioned, the nature of the information obtained, the extent to which he continued to be used and the nature of his current methods. Notwithstanding that such investigations should have been conducted earlier, the Information Commissioners second report was another reminder which should have set in train detailed investigations into these issues. 3.105 Second, it is clear that, in relation to those newspaper groups that did undertake belated investigations into the use of private investigators, difficulties were encountered in trying to marry up invoices with the precise information that had been supplied to the journalists, or the methods used. These difficulties point to deficiencies in financial systems and corporate governance which require to be addressed.
Surveillance
3.106 For many celebrities and people in the public eye, being photographed on a daily basis is commonplace. Whilst some of this publicity may be encouraged for the purpose of promoting causes or creating positive publicity, other elements of photography is not welcomed. The Inquiry has heard evidence from a number of witnesses in relation to photographers being a constant presence outside their homes. By way of example Mr Coogan said that over a period of ten years photographers had frequently camped outside his house day and night.203 The Inquiry has also heard of individuals being pursued by the paparazzi. Ms Miller in her evidence explained:204 I would often find myself I was 21 at midnight running down a dark street on my own with ten big men chasing me and the fact that they had cameras in their hands meant that that was legal, but if you take away the cameras, what have you got? Youve got a pack of men chasing a woman and obviously thats a very intimidating situation to be in. 3.107 For the majority of these individuals the presence of photographers is known and obvious, indeed in some cases oppressively so. However, the Inquiry has also heard evidence that covert surveillance of individuals took place by the press, either directly by journalists or indirectly through the use of intermediaries, in particular private investigators. The Inquiry heard evidence from a variety of people to the effect they had been placed under surveillance
Mr Coogan had been told by Mr Paul McMullan, then of the News of the World had that he used to sit outside his house. pp11-12, lines 9-18, Steve Coogan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Afternoon-Hearing-22-November-20111.pdf 204 p24, lines 12-18, Sienna Miller, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-24-November-2011.pdf
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by newspapers; these individuals included celebrities and their friends and family,205 politicians,206 but also individuals who were not obviously public figures. 3.108 The evidence relating to the NoTWs employment of Derek Webb as a private investigator has been discussed in detail elsewhere.207 In the period spanning eight years, Mr Webb, a former police officer, placed approximately 150 people under surveillance on instruction from NoTW, including a number of celebrities, MPs, sportsmen and members of the public who were connected with famous individuals but were themselves of no particular interest. He estimated roughly 85% of his time was spent investigating celebrities and MPs, and most of the instructions related to stories on the topic of sexual relationships, affairs and intimate relationships. In some instances, celebrities would be subject to surveillance over a period of up to two weeks by following them by car or on foot, or solely watching them day in, day out. In one case a wife of a footballer was under surveillance for one month. Mr Webbs evidence corresponded with that of Neville Thurlbeck in these respects.208 3.109 Other examples of surveillance include that described by Mr Shear, a lawyer who was followed by journalists and photographers when attending to a client at a secret meeting place.209 Similar evidence was given by Jacqueline Hames who together, with her husband David Cook, was a serving police officer placed under surveillance by NI. This surveillance took the form of persons working in two vans, and on one occasion a van followed Mr Cook with his son and daughter to school. The NoTWs alleged justification for this surveillance was that it was suspected they were having an affair together, a position that lacked any credibility given that Ms Hames and Mr Cook had been married for some years and had two children. Ms Hames has suggested other motives for the surveillance,210 but the Inquiry was unable, in the time available, to come to any firm conclusion on those alternative motives. In any case, the impact on Ms Hames was significant: it provoked considerable anxiety, had significant consequences for her private life and her distress was evident in the course of her evidence to the Inquiry.211 3.110 The damage that can be occasioned by covert surveillance, particularly where surveillance cuts across police investigations, was also highlighted to the Inquiry. David Harrison was an intelligence officer working for the Serious Organised Crime Agency (SOCA) investigating the
Hugh Grant and Ms Hong (Hugh Grant, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Supplemental-Witness-Statement-of-Hugh-Grant.pdf ; p1 para 6 p2 para 7, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/02/Second-Witness-Statement-of-Mark-Thomson.pdf);, p12 lines 3 p13 lines 4, p14 lines 17 p16 lines 8, Charlotte Church, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-28-November-20111.pdf; p25 lines 11 p35 lines 10, Sienna Miller, http://www.levesoninquiry.org. uk/wp-content/uploads/2011/11/Transcript-of-Morning-Hearing-24-November-2011.pdf; and generally p87 lines 1619 and p88 lines 17-20, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Afternoon-Hearing-29-November-2011.pdf 206 The Inquiry also heard evidence from Alastair Campbell as that invoices had been discovered as part of police investigations suggesting the Mirror had paid private investigators to place him, a member of his family, and Peter Mandelson under surveillance: p69, lines 26, Alastair Campbell, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Transcript-of-Morning-Hearing-30-November-2011.pdf 207 Part F Chapter 4 208 pp26-35, lines 25-5, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Afternoon-Hearing-12-December-20111.pdf 209 pp51-52, lines 4-13, Graham Shear, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-21-November-2011.pdf 210 pp70-71, lines 23-7; pp97-103, lines 4-11, Jacquelines Hames, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/02/Transcript-of-Morning-Hearing-28-February-2012.pdf ; pp12-16, para 29-40, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Jacqueline-Hames.pdf 211 pp12-16, para 29-40, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-ofJacqueline-Hames.pdf
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murder of five young women in Ipswich. SOCA was assisting Suffolk police with surveillance of potential suspects. Mr Harrison was informed that NoTW had deployed a surveillance team to identify the SOCA officers and, on at least two occasions during the course of his surveillance work, observed vehicles undertaking surveillance of the SOCA team. Mr Harrison conveyed his concerns that the activities of NoTW could have jeopardised the police investigation because the efforts of the SOCA team in trying to avoid being subject to surveillance themselves by the newspaper distracted them from trailing a suspect and further weakened their ability to look for evidence.212 3.111 Mr Harrison made other claims about a surveillance team from the Sunday Mirror who were seeking to pick up the suspect and take him to a place where he could be debriefed. However, the evidence in relation to such a team was unclear, and the Inquiry is satisfied on the basis of submissions made by counsel for Trinity Mirror that it did not exist.213 3.112 Inevitably in relation to an issue of this sort, the Inquiry may have received a somewhat onesided impression. It is quite possible that surveillance has on occasion been justified in the public interest, both in terms of the decision to deploy the technique and the resultant story. That said, the Inquiry received little evidence from newspapers containing concrete examples of what might be described as good practice in this regard. What is more likely is that the use of surveillance in individual cases has often led to newspapers deciding not to print stories, either because such surveillance specifically contradicted the story that was being planned, or because it failed to prove the matter one way or the other. The evidence from the photographer Matt Sprake was very much along these lines. One might think that the ethical issues which arise are likely to be more nuanced in these circumstances: the absence of a story means, by definition, that nothing has been placed in the public domain, but questions still fall to be asked about the basis for the decision to use an intrusive technique in circumstances where the ultimate goal may, in many cases, only be a story devoid of a public interest. 3.113 Mr Sprakes evidence was alarming in two respects. First, he provided a worklog, evidencing the fact that he had been commissioned by a number of titles (but predominantly by the People) to carry out covert surveillance and/or photography on over 300 different subjects between July 2010 and June 2012.214 Consistent with Mr Webbs worklog, the majority of the jobs appeared to relate to celebrity gossip and therefore the subterfuge was unlikely to have been justified in the public interest. Second, his oral evidence was of particular concern insomuch as he appeared not to recognise that he had ethical judgments to make in carrying out his tasks. When asked about the ethics of one particular example of covert photography, he said: I think its an answer for the newspaper, really, rather than us. Were tasked to provide the evidence.215
pp3-9, lines 23-16, David Harrison, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-19-March-20121.pdf. Simon Ash confirmed his evidence that during the investigation that a newspaper picked up a suspect and took them to a hotel and interviewed him whilst they were under police surveillance. Chief Constable Ash of the Suffolk Police explained in his evidence he was unable to find any information to support the face that News of the World were deploying surveillance teams against police surveillance teams who were following suspect, but there was no evidence to contradict this account. pp31-32, lines 15-4, Simon Ash, http:// www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-Morning-Hearing-26-March-2012.pdf 213 pp104-106, lines 20-6; pp121-123, lines 15-25, Mr Browne, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-20-March-2012.pdf 214 pp3-10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Matthew-Sprake. pdf 215 pp39-40, lines 20-15, Matthew Sprake, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcriptof-Afternoon-Hearing-18-July-2012.pdf
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3.114 In relation to the evidence which the Inquiry has specifically considered, it does appear that, in respect of the vast majority of the instances in which surveillance has been used, inadequate consideration has been given to whether such surveillance is itself justified in the public interest, let alone whether it is likely to produce any relevant information which goes to a story which is being contemplated. Some of the surveillance appears to have been commenced on a purely speculative basis in the hope that some fragments of interesting material might be obtained if a person is trailed for long enough, and in the many examples the Inquiry saw of surveillance commissioned with a particular purpose in mind, there was in any event no public interest justification for the surveillance in the first place.
Theft and misappropriation of property consisting of or containing private information

3.115 Another method at one stage used by the press to obtain private information was misappropriation and theft of property. 3.116 One practice which appears to have been used frequently was the searching of refuse outside the homes of persons of interests to newspapers, or binnology as it has become known. In particular, the Inquiry heard that newspapers engaged the services of Benjamin Pell (known as Benjy the Binman) to search for documents and other information in rubbish bins outside the homes and offices of celebrities, and the offices of their accountants and lawyers.216
3.117 Mr McMullan told the Inquiry I think most journalists, me included, would find the contents of peoples bins incredibly interesting .... it gives you such a great starting point, much better, actually, than hacking a phone because that almost tips them off that youre looking...217 In an article written in 2006 Scandal on Tap, Mr Leigh explained that he did not turn up [his] nose when the notorious Benjy the binman emptied a bag of stinking rubbish onto [his] carpet. He wanted to show [him] incriminating statements about Saudi arms deals which a City law firm had been too idle to shred before putting out on the street for collection.218 However, Mr Leigh also made it clear that he also had a look at other rubbish which might also have contained material relevant to a public interest story. 3.118 Mr Morgan explained that he had engaged the services of Benjy the Binman on several occasions, including one where he was presented with sacks which were full of documents relating to Elton John; this included bank statements and had been obtained from the bins of Mr Johns manager. Mr Morgan considered that this conduct was not illegal and was on the cusp of being unethical.219 3.119 The rummaging through bins was practised both in relation to celebrities but also offices of newspapers and magazines. Mr Hislop, for example, explained that the bins outside Private Eye had been searched and that, in due course, an article which probably derived from that rubbish appeared in one magazine.220 Mr Campbell told the Inquiry that he would wake
pp50-54, lines 25-1, p62, lines 614, Piers Morgan, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/12/Transcript-of-Afternoon-Hearing-20-December-2011.pdf 217 pp85-86, lines 17-11, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Afternoon-Hearing-29-November-2011.pdf 218 pp84-88, lines 16-15, David Leigh, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-6-December-20111.pdf 219 pp50-54, lines 25-1; p62, lines 6-14, Piers Morgan, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/12/Transcript-of-Afternoon-Hearing-20-December-2011.pdf 220 p7, lines 5-18, Ian Hislop, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-MorningHearing-17-January-2012.pdf
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up in the night with people going through his bins and Mr Coogan had experienced similar instances with people going through his bins early in the morning.221 The searching of bins has also proven to be a mobile operation, and one that is not defunct. In June 2011, an individual journalist who stated that he was working as a freelancer for The Sunday Times was found going through the bins at the venue holding the AGM for the RMT hoping to acquire information.222 3.120 The misappropriation of property is not confined to extracting documents out of bins, but includes the theft of photographs and physical items, such as diaries.223 Mr McMullan explained that he had been involved in the blagging his way into a property in France, stealing a photograph off the mantelpiece, copying it and printing it in the NoTW.224 The basis for this misappropriation appears to be that it had not been possible to find a photograph in the public domain of the relevant individual. This conduct appears to be a gross invasion of privacy; whether it was a breach of the criminal law has not been investigated. Further, Tom Rowland in his evidence explained that many photographs continued to be stolen today, albeit electronically, where watermarks and copyrights were sliced off the bottom of photographs and used by newspapers.225 3.121 That said, it is critically necessary to retain a sense of proportion, and consider the extent to which these types of practices still represent part of the culture, practices and ethics of the press. Whereas binnology and kindred practices did form part of the culture in the past, it is correct to say that there is insufficient evidence that it still occurs to any significant extent and, equally, insufficient material from which that inference might be drawn.
Bribery and corruption

3.122 The evidence relating to the practice of inducing or seeking to induce public or corporate officials to disclose confidential information in return for payment is considered in detail elsewhere in this report in the context of Operation Elveden.226 Given the present state of the criminal investigation, it is not possible to reach any conclusions of a generic nature, although the extent of the criminal investigation and the large number of arrests made is undeniably a cause for concern. Further, it is worth noting briefly in this context that a number of journalists
pp13-14, lines 16-2, Steve Coogan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-22-November-20111.pdf 222 pp52-54, lines 12-18, Bob Crow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-25-January-20121.pdf; p3, para 11, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Robert-Crow.pdf 223 See the evidence relating to the provenance of the McCann diaries and the theft of diaries of Harold Shipman from his widow: pp49-52, lines 15-1, Kate McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Transcript-of-Afternoon-Hearing-23-November-2011.pdf; pp81-84, lines 14-20, Colin Myler, http://www. levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Afternoon-Hearing-14-December-2011.pdf; http:// www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Third-Witness-Statement-of-Colin-Myler.pdf; pp74-82, lines 23-4, Daniel Sanderson, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-MorningHearing-15-December-20111.pdf; pp63-69, lines 19-4, Ian Edmonson, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/02/Transcript-of-Morning-Hearing-9-February-2012.pdf; pp45-46, lines 21-16, Tom Crone, http://www. levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-14-December-2011.pdf; p43, lines 16-23, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Morning-Hearing-1February-2012.pdf 224 pp69-70, lines 1-23, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-29-November-2011.pdf 225 pp5-6, lines 14-17, Tom Rowland, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-23-November-2011.pdf 226 Part E, Chapter 5
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indicated to the Inquiry that they had previously paid officials for information,227 although in each instance reliance would no doubt have been placed on the public interest. 3.123 Given the inevitable paucity of the information available which relates to each of these cases, and notwithstanding that neither the Bribery Act 2010, its predecessor legislation, nor aiding and abetting misconduct in public office contain a public interest defence, I make no comment on this evidence; I merely note that it was given. The Inquiry heard evidence of a somewhat historical nature that, at some newspapers, it was expected that crime reporters would pay sums of money to police officers in exchange for information. The evidential picture is incomplete but, again, the current state of the evidence does not enable any conclusions of a generic nature to be reached.
Conclusion
3.124 I have concluded that the evidence seen and heard by the Inquiry is inconclusive, or insufficient, to find that bribery and corruption, blagging, theft and/or email hacking are cultural problems within the press today but there is sufficient arising out of what has been said and the present criminal investigation to merit concern. Further, the evidence of these practices, limited though it is, does support a wider conclusion that there is a cultural problem within parts of the press with regard to the use of unethical methods to acquire private information.
3.125 The slow and often inadequate response by large parts of the press to the widely known practice of phone hacking, considered alongside the inadequate response to the Operation Motorman revelations, indicates an industry which, in general, did not find it noteworthy or particularly problematic that parts of the press were regularly breaching individual privacy, not to mention the criminal law. In addition, the fact that large parts of the press continue to employ private investigators to carry out covert surveillance without any clear public interest supports the conclusion that, notwithstanding the evidence that phone hacking is likely to have ceased as a method employed by journalists, the press retains a casual (or less than robust) attitude to the use of unethical methods of acquiring private information.
4. Breach of confidence and misuse of confidential and/ or sensitive information

4.1 In addition to the evidence demonstrating that the press has accessed private information from individuals either unlawfully or unethically, the Inquiry heard significant evidence of misuse of that private information. That misuse has taken place in two ways: first, through the unlawful trade in confidential and/or private information, and second, through the unjustified publication of that information. As discussed above, Operation Motorman revealed an extensive trade in confidential data. Although there is evidence to suggest that that trade has significantly diminished, there are reasons to believe that at least a limited trade continues.
4.2
pp20-21, lines 5-11, Kelvin Mackenzie, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-9-January-2012.pdf; pp62-64, lines 23-8, Richard Wallace, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/01/Transcript-of-Morning-Hearing-16-January-2012.pdf; pp101-102, lines 14-9, Peter Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning-Hearing-11-January-2012.pdf
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4.3
Notably, during the course of the Inquiry, the Guardian reported on the illegal trade of passenger flight information from an employee at Virgin Atlantic to the picture agency Big Pictures.228 The article revealed that over the course of some considerable time (which subsequently turned out to be a period of approximately two years),229 an employee within Virgin Atlantic had regularly disclosed to someone within Big Pictures the personal flight information of over 60 different celebrities. The strong inference was that Big Pictures used that information as an advantage over competitors when arranging for photographers to pursue celebrities on holidays and other trips abroad. Jillian Anne Brady, on behalf of Virgin Atlantic, told the Inquiry that Virgins internal investigation had confirmed the flow of confidential information from Virgin to Big Pictures; she also confirmed that the employee in question had left her employment and that Virgin had reported to the ICO what had happened in its own operations.230 It must be said that the response by Virgin Atlantic to the revelation was exemplary, and there seems to have been very little more that the company could have done to prevent the disclosure. By contrast, the same cannot be said of Big Pictures: for legal reasons they declined to provide the Inquiry with any further evidence of what had taken place.231 The disclosure of personal flight information from an airline to a picture agency is both unethical and unlawful and is consistent with the practices identified in Operation Motorman. Notwithstanding the evidence from editors which suggested that the trade in private and confidential information had declined substantially since Operation Motorman, what happened between the Virgin and Big Pictures gives cause for concern and the fact must be that there is a market for pictures taken as a result. I doubt that it is the only recent example of a trade in confidential information in which the press has an interest, and there is an undoubted risk that a picture agency (or the paparazzi) will be used, whether knowingly or not, as surrogates for the press. Thus, it will not be a journalist who obtains the information that provides the intelligence to lead a photographer to a picture but it will be the photographer who does so, then selling the picture to the press with exactly the same outcome. Although the evidence received by the Inquiry did not establish that the press remain complicit in a trade in private and confidential information, the picture appears to be complex. The evidence did suggest that third parties remain involved in the trade of confidential information, and then sell products based on that trade to the press. Ultimately, the press do remain responsible for the content it publishes and therefore must remain on guard to ensure that information or photographs provided by third parties were obtained ethically. Although there was no clear evidence that the press remain directly involved in the trade in confidential information, there was ample evidence to suggest that large parts of the press were willing to publish confidential, private or sensitive information, without regard to the impact on the individuals concerned and without consideration of the public interest. The NoTWs publication of Dr McCanns diaries is a prime example of this,232 as is the publication of photographs, and the personal blog, of Sebastian Bowles after his death.233
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4.6
4.7
pp4-5, Jillian Brady, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-JAB-11.pdf p4, para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Jillian-AnneBrady1.pdf 230 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Jillian-Anne-Brady1.pdf 231 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Nigel-Regan-taken-as-read. pdf 232 Part F Chapter 5 233 Part F Chapter 5
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4.8
The Inquiry heard many other examples of the publication of confidential material. Mr Clifford gave evidence of the publication, without consent, of private photographs of Rebecca Leighton, the nurse falsely accused of poisoning patients at Stepping Hill Hospital. Photographs of Ms Leighton in fancy dress were allegedly taken from her Facebook account and used in articles to suggest her guilt.234 Similarly, Ms Mills told of how confidential details of her divorce settlement appeared in the national press.235 And Ms Rowling gave evidence of the publication of excerpts of a stolen advance copy of one of her novels.236 None of these examples of the publication of obviously private, confidential, or copyrighted material was justified in the public interest. Further evidence of a willingness within the press to publish confidential or private information came from the examples of newspapers revealing pregnancies, or rumours of pregnancies, prior to the 12 week period prescribed by the Editors Code. The first pregnancies of both Ms Diamond and Ms Church were revealed by the tabloid press before they had even informed their families.237 Ms Witchalls pregnancy (of only five weeks gestation) was revealed while she was unconscious and before she or anyone other than her medical team and immediate family knew about it.238 That kind of disclosure in the national press is not only a breach of the Editors Code but displays a complete disregard for individual privacy, and a lack of respect for inherently private and sensitive information. A similar type of disclosure which caused significant distress for a number of witnesses was the disclosure by newspapers of a persons address, or of sufficient information to allow a reader to identify the persons address. While an address is not necessarily confidential, it is ordinarily private and is certainly sensitive. For a number of witnesses, the disclosure of their addresses in the national press occurred with no reasonable justification and gave rise to very real concerns for personal safety. Ms Churchs address was disclosed at a time when she was the subject of death threats.239 Ms Rowlings address was revealed along with the details of her the security features which she had deployed.240 Ms Diamonds address was published, along with a complete layout and description of her home. As Ms Diamond wrote: it was a complete burglars charter.241 Chris Bryant MP also had his address published in a national newspaper. In his witness statement, which described the publication of a story revealing his appearance on a gay dating website, he wrote:242 As the Mail on Sunday had also published my address, I also acquired a stalker who followed me home from the tube and sent me a series of lurid letters. On one occasion he called my landline (which was ex directory) at two in the morning and told me he was standing outside the front door to my flat. I rang the police and had him removed.
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4.10
p2, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Max-Clifford.pdf p12, para 39-40, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Supplemental-WitnessStatement-of-Heather-Mills.pdf 236 pp79-82, lines 1-15, JK Rowling, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-24-November-20112.pdf 237 para25, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-CharlotteChurch.pdf ; para 22, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-AnneDiamond1.pdf 238 pp18-19, lines 19-25, Baroness Hollins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcriptof-Afternoon-Hearing-2-February-2012.pdf 239 pp19-20, lines 14-17, Charlotte Church, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Afternoon-Hearing-28-November-20111.pdf 240 pp38-39, lines 12-12; pp65-74, lines 22-16, JK Rowling, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Transcript-of-Afternoon-Hearing-24-November-2011.pdf 241 pp66-67, lines 1-19, Anne Diamond, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-28-November-20111.pdf 242 p7, para 19, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-by-Chris-BryantMPpdf
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4.11
What is clear from all of these examples the publication of confidential material without consent, the revelation of pregnancies before individuals had told friends and families, and the publication of individuals home addresses is that the publication of stories which on any reasonable analysis may fairly be described as inconsequential can cause very real harm to the individuals concerned. Perhaps the most egregious instances of the disclosure of confidential information were the four examples heard by the Inquiry of a willingness of the press to disclose private medical information. This type of information is deserving of the highest protection. The story surrounding the revelation of the condition of the Rt Hon Gordon Browns son is discussed in detail above.243 Second, Mr Grant referred to two episodes in which his private medical information was published. In 1996, the Daily Mirror reported his visit to see a specialist at Charing Cross hospital and included within the story his diagnosis and treatment. More recently, in March 2011, his visit to the A&E department at Chelsea and Westminster hospital was reported in The Sun and the Daily Express.244 Included in those articles was his exact complaint; Mr Grants view was that the information must have come straight from his medical records and, in all likelihood, from a paid source within the hospital.245 Although there was insufficient information to conclude for certain how the information was obtained, for the purposes of the Inquiry, it does not matter. The simple fact is that private medical information was published without consent and without regard to the public interest (or, at least, any reasonable formulation of the public interest). Third, and as already referenced in the previous section of the Report, former NoTW journalist Mr Driscoll gave evidence of how the paper blagged the medical records of a Premiership football manager and used that information to bargain with the manager for cooperation on future stories. Notwithstanding the fact that the medical records were likely to have been obtained unlawfully and their disclosure was likely to have been an actionable tort, the newspaper successfully persuaded the manager that, in return for the newspaper keeping the medical records private, he would cooperate with the newspaper by providing stories in future. The final example of a willingness within parts of the press to obtain and disclose private medical information was the evidence provided by the filmmaker Chris Atkins, in relation to the medical records sting in his film Starsuckers.246 Mr Atkins had posed as the boyfriend of a woman who worked in a cosmetic surgery in Harley Street. He called a number of tabloid newspapers to say that he might be willing to sell information about the procedures carried out to various celebrities. A journalist from the Daily Express immediately dismissed the proposal a contrary to the Editors Code and ended the conversation. Journalists from the People, the NoTW and the Daily Mirror arranged a meeting to discuss. The transcripts of the conversations which took place at those meetings are extensive and revealing.247 During the course of the meeting with a journalist from the People, the journalist expressed some concern about the publication of medical information, but proposed a
4.12
4.13
4.14
4.15
Part F, Chapter 5 p5, paras 13-15, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-HughGrant.pdf 245 pp10-17, lines 22-7, Hugh Grant, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-21-November-2011.pdf 246 pp6-13, para 30-79, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-ChrisAtkins1.pdf; pp33-53, lines 10-23, Chris Atkins, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Transcript-of-Afternoon-Hearing-6-December-2011.pdf 247 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-Annex-1-to-Chris-Atkins-supp..pdf; http:// www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-Annex-2-to-Chris-Atkins-Supp.pdf
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number of ways in which the newspaper might make use of the material without necessarily revealing the source and, in so doing, raising concerns around privacy and protection of medical data.248 It was suggested that the material offered by him, which purported to prove that a member of the pop group Girls Aloud had undergone breast enlargement surgery, could be used as part of silhouette spread or a have they, havent they story.249 4.16 Mr Atkins meeting with the Daily Mirrors Nick Owens was equally illuminating and revealed a distinct lack of respect for the dignity of individuals whose medical information was purportedly for sale. During their meeting, Mr Owens asked Mr Atkins to provide as much information as possible on the cosmetic procedures carried out to named celebrities. Although he told Mr Atkins that the publication of medical information was problematic for the newspaper because of the Editors Code restrictions, he said that such publication could be justified if the stories were in the public interest. However, the transcript of the meeting revealed his deeply flawed understanding of the public interest. He said, for instance that there probably isnt a public interest in just reporting that someone had a gastric band operation, unless they are a massively big name then you might make a decision.250 Similarly, when discussing various fictional procedures of which Mr Atkins offered to provide further information, Mr Owens thought that we could get away with a story of an actress having had a gastric band procedure because, he said, thats massive, good story that because as you see she does not need it.251 Similarly, in relation to a story about an actor having a tummy tuck, he also thought the paper could get away with [it] because its so funny.252 The claim that the revelation of private medical information about a celebrity could be justified in the public interest because the celebrity is particularly famous, or because the story is funny or because the celebrity does not, in the journalists opinion, need a procedure, is frankly ludicrous. A sympathetic interpretation of Mr Owens comments is that he was merely thinking aloud and had given the issue very little thought. But that, perhaps, is the problem. What is clear from the transcript is that Mr Owens, an award winning and senior journalist with considerable experience,253 was engaged in a conversation directed at eliciting from Mr Atkins as much confidential medical information as possible to see whether the Daily Mirror might be able to use it in some way. What is also clear is that he had decided to engage in that conversation without considering the very many ethical questions that ought to have been contemplated in advance. Mr Owens sought to avoid that necessary inference from the transcript of the conversation. He appeared to claim that he had arranged the meeting with Mr Atkins with a view to potentially exposing him as an individual willing to sell medical records.254 However, that explanation is simply not credible. As Mr Barr noted in questioning, prior to the meeting Mr Owens had not discussed it with his news desk; neither had he, in any way, recorded any intention to carry out a sting on Mr Atkins.255 Further, although he had ample evidence that he was dealing with an individual who was willing to sell medical records, it is not suggested that he wrote up
4.17
4.18
pp39-40, lines 25-25, Chris Atkins, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-6-December-2011.pdf 249 pp39-40, lines 25-6, Chris Atkins, ibid 250 p2, para 50, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-Annex-1-to-Chris-Atkinssupp..pdf 251 p9, para 117, ibid 252 p11, para 126, ibid 253 pp3-4, para 10 -11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-ofNicholas-Owens1.pdf 254 pp53-56, lines 21-5, Nick Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-6-February-2012.pdf 255 pp54-56, lines 24-5, Nick Owens, ibid
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contemporaneous notes (let alone a story), or alerted his news desk about the possibilities. I find it very difficult to conceive that he would have done none of these things had he been genuinely intent on exposing Mr Atkins. 4.19 The transcript of the meeting between Mr Atkins and Mr Owens reveals a journalist intent on receiving information which was plainly confidential and obviously private. It may well be the case that Mr Owens had not formed any firm view about whether it would be appropriate to purchase or publish the information; and it appears that after the meeting Mr Owens did not pursue Mr Atkins with any vigour. But that is not the point. An offer to sell private medical information about celebrities should have been rejected outright: the Daily Express got it right, while Sarah Jellema formerly of the People, and Mr Owens got it wrong. Absent an intention to expose, by meeting with Mr Atkins and by encouraging him to access and provide medical records to substantiate his claims, Mr Owens acted in a way which showed no respect for the confidentiality of medical records and inherent privacy of the individuals in question. The evidence when considered as a whole suggests that there is a cultural willingness in parts of the press to receive and publish confidential and private information. The evidence also suggests that those same parts of the press have done so without consideration of the public interest, or with a conception of the public interest that is fundamentally flawed.
4.20
5. harassment
5.1 One of the recurring complaints advanced by the Core Participant Victims was that the attention they received from the press and paparazzi amounted, at times, to harassment. Ms Miller gave the most striking description of her harassment as she recalled frequently running down dark streets on her own pursued by ten or more men with cameras. Her evidence is dealt with in more detail above.256 Similarly, the evidence of Ms Church,257 Ms Rowling,258 and Mr Coogan259 contained further examples of persistent, intrusive and distressing levels of attention by press and paparazzi. Furthermore, the evidence of the McCanns,260 the Dowlers261 and Baroness Hollins262 illustrated that complaints of harassment were not limited to so-called celebrities, but were shared by those with no public persona who, for a variety of reasons, were thrust into the public eye. Mr Grant described a series of events in the months before and after the birth of his daughter which ultimately led to a High Court injunction to prevent what amounted to egregious harassment.263 Throughout her pregnancy, Ms Hong, now the mother of Mr Grants child, was regularly followed by foot and by car and photographed without her consent. At one stage during her pregnancy, when Mr Grant appeared on television discussing the phone hacking scandal, Ms Hong was apparently called on her mobile and told to Tell Hugh Grant to shut the fuck up.264
5.2
Part F, Chapter 3 Part F, Chapter 6, section 2 258 Part F, Chapter 6, section 2 259 Part F, Chapter 6, section 2 260 Part F, Chapter 6, section 6 261 Part F, Chapter 6, section 6 262 Part F, Chapter 6, section 6 263 Ting Lan Hong v XYZ and others [2011] EWHC 2995 QB 264 p1, paras 3-5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Supplemental-Witness-Statementof-Hugh-Grant.pdf
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5.3
After the birth of her child, Ms Hong received numerous phone calls, text messages and answer-phone messages from journalists.265 Despite requests for them to leave, up to ten photographers and journalists remained camped outside her house, day and night.266 The photographers spoke with neighbours and sought to persuade them to call Ms Hong for information about her baby.267 When Ms Hong left the house, she was pursued by photographers. On one occasion, on 10 November 2011, Ms Hong called her mother for assistance to prevent the pursuit of photographers. Her mother attempted to take photographs of one of them but, in response, he sped his car towards her in a menacing manner, forcing her to jump out of the way.268 The harassment experienced by Ms Hong and her family appeared motivated by one thing only: the pursuit of a photograph of, or statement about, Mr Grants new baby. But the impact on Ms Hong and her family was significant. She told the High Court that she was seriously intimidated and distressed by the experience. She had been unable to look after her daughter in a normal way, had had to cancel appointments and was frightened to drive with her child for fear that pursuit by paparazzi would make it unsafe to do so.269 She was under virtual house arrest. Whatever one thinks of the justification for publishing information about the private lives of so-called celebrities, there can be no justification for harassing a new mother and her child in this way. Ms Gascoigne provided evidence of similar levels of harassment. As the ex-wife of footballer Paul Gascoigne, she accepted that, by contracting for coverage of her wedding, appearing on shows such as Im a Celebrity Get Me Out of Here!, and by selling a book about her private life, she could only have a limited expectation of privacy. As a consequence she did not complain about the publication of details of her private life,270 but she did complain of the harassment that she had endured by journalists and photographers. She recalled that in the 1990s, when she was in a relationship with Mr Gascoigne, she was pursued relentlessly by photographers who would often drive dangerously to follow her. In order to end these pursuits, she would drive around roundabouts multiple times or drive into housing estates; on one occasion, concerned for the safety of her children, she was forced to drive to a police station to end the harassment. In 1996, when the curtains in her home would not close properly, she was forced to crawl on her hands and knees to prevent photographs being taken through the windows by multiple photographers camped outside.271 Although Ms Gascoigne noted that things improved slightly in the aftermath of the death of Princess Diana,272 the evidence provided to the Inquiry by others suggests that any improvement may have been limited. Mr Thomson gave evidence of his experience representing clients
5.4
5.5
5.6
p3, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Supplemental-Witness-Statement-ofHugh-Grant.pdf 266 para 11, judgment of Mr Justice Tugendhat, Ting Lan Hong v XYZ and others [2011] EWHC 2995 QB, http://www. judiciary.gov.uk/Resources/JCO/Documents/Judgments/ting-lan-hong.pdf 267 p3, para 13; p4 para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Supplemental-WitnessStatement-of-Hugh-Grant.pdf 268 p5, para 20, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Supplemental-Witness-Statement-ofHugh-Grant.pdf; para 14, judgment of Mr Justice Tugendhat, Ting Lan Hong v XYZ and others [2011] EWHC 2995 QB, http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/ting-lan-hong.pdf 269 para 16, ibid 270 p90, lines 14-23, Sheryl Gascoigne, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-23-November-20111.pdf 271 pp5-6, paras 22-24, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-SherylGascoigne.pdf 272 p6, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-SherylGascoigne.pdf
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who were the subject of press interest. He considered that car chases and dangerous driving by paparazzi were still very common. One of his clients, Lily Allen, had recently been involved in an accident where a photographer had driven through a red light and smashed into her car. As she emerged from the car, instead of apologising, the photographer took photographs of the singer in distress.273 5.7 Darryn Lyons of Big Pictures photo agency confirmed stories from his book Mr Paparazzi. He recalled using photos of Brad Pitt and Angelina Jolie, taken during a scooter chase in Paris.274 He also wrote of the widely used technique for getting car shots:275 You then run at the car crash, bang, wallop with a wide angle lens. Rosie and I used to run up to people driving home past the Portland and practice on them. Must have scared the living crap out of them. Funnily enough, just recently I took a call from the police who were making a complaint about a couple of my big guys. They were outside TV personality Ulrika Jonssons house and had been practising their car shots on a family and almost caused a major accident. 5.8 Ms Mills gave evidence that she had been the subject of many car chases and stalkings by the paparazzi.276 She had been advised by police to keep a video diary of paparazzi intrusion and she submitted that video to the Inquiry.277 Although the video is edited and it is sometimes difficult to be sure what is happening, it certainly appears to show evidence of photographers stalking, pursuing and chasing Ms Mills in a variety of situations, some of which are obviously private, and some of which appear to show photographers driving dangerously. Ms Mills complained of journalists sitting outside her home with scanning equipment, paparazzi hiding and jumping out at her daughter and her without notice, and chasing her in her car. The impact of such harassment on Ms Mills and her daughter was clear: she found the behaviour intrusive and abusive.278 The Inquiry heard further evidence of harassment from other witnesses. The Daily Mails picture editor Paul Silva noted the daily harassment suffered by the sister of the Duchess of Cambridge, Pippa Middleton. He said: there are nine or ten agencies outside her door every day. She goes to get a coffee or she goes back into her house, you get about 3 to 400 pictures on that day.279 The recent publication of images of Prince Harry and the Duchess of Cambridge280 (the latter, insofar as the print media is concerned, solely in foreign jurisdictions) illustrates the continuing intrusion into the private lives of young royals. The phenomenon of press and paparazzi harassment is not new: Ms Diamonds evidence of the behaviour of journalists and photographers in the aftermath of her sons death was an example heard by the Inquiry of seriously harassing behaviour from the early 1990s.281
5.9
5.10
pp54-55, lines 2-14, Mark Thomson, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-24-November-2011.pdf 274 pp11-12, lines 1-7, Darryn Lyons, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-9-February-2012.pdf 275 Lyons, D, Mr Paparazzi, p33 276 pp14-15, paras 50-52, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Supplemental-WitnessStatement-of-Heather-Mills.pdf 277 http://www.levesoninquiry.org.uk/video/video-evidence-from-heather-mills/ 278 p16, para 57, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Supplemental-Witness-Statementof-Heather-Mills.pdf 279 pp37-38, lines 22-2, Paul Silva, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-11-January-2012.pdf 280 Part F, Chapter 5 281 pp7-9, paras 29-37, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-AnneDiamond1.pdf
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However, technological developments in the last 20 years have limited the space in which subjects of stories are safe from intrusion. The evidence showing a corrupt flow of private flight information from Virgin Airways to the picture agency Big Pictures282 illustrates the difficulties experienced by public figures in seeking to escape the attentions of the press and photographers, even while abroad. Moreover, the growth of citizen journalists and the development of websites, and newspapers, encouraging amateur photographers to upload and sell their own celebrity pictures283 means that anyone armed with a keyboard or a camera can now be part of the wider press and paparazzi and can contribute to the harassment experienced by those in the public eye.284 The picture editor of the People noted that nowadays, nearly everyone has a camera with them at all times contained within their mobile phone, so often we will get photos sent in this way by members of the public.285 5.11 Neil Turner of the British Press Photographers Association said that the industry faced a real problem from amateur celebrity chasing paparazzi, or stalkerazzi. He said:286 they do involve chasing people down the road, driving dangerously/illegally. They do involve initiating a reaction and a response from people to get different facial expressions, you know, in a kind of completely over-the-top way. They do involve the trying to photograph women in compromising ways to show you either what theyre wearing under their skirts. Working in packs deliberately. Deliberately running in front of people. I mean, you know, hearsay, Im afraid, but Ive heard it second-hand that theyve seen one photographer deliberately get into a fight with a celebrity so a second photographer, with whom they were working as a team, could get the picture of the fight and split the money. 5.12 When asked whether he doubted the truth of the evidence given by some of the Core Participant Victims of paparazzi harassment, Mr Turner confirmed that he did not doubt any of it.287 His explanation for this kind of behaviour was simple: there was demand in the marketplace for the images resulting from the harassment.288 That appeared to reflect the evidence given by witnesses representing picture agencies. Gary Morgan, from Splash picture agency, confirmed that the market places a premium on exclusive photographs of individuals in the public eye. Photographs taken at press events or organised functions, where many photographers will be present, are inevitably worth less than photographs taken in more private situations, where there are fewer other photographers present.289 As such, there is an incentive on photographers to push the boundaries of what is an acceptable level of intrusion in order to get exclusive, and often private, images.
5.13
Section 4 See, for instance, www.peoplepaparazzi.com, run by Splash News and Picture Agency and www.mrpaparazzi.com, run by Big Pictures 284 The taking and publication of photographs of Prince Harry, discussed at Part F, Chapter 7, section 8 below, is a prime example of this. 285 p3, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Mark-Moylan. pdf 286 p15, lines 9-23, Neil Turner, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-7-February-2012.pdf 287 p16, lines 15-21, ibid 288 pp7-10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-The-BPPA1.pdf 289 pp86-87, lines 12-10, Neil Turner, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-7-February-2012.pdf
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5.14
Mr Lyons confirmed that in order to get valuable photographs his photographers, or freelancers, would pursue individuals by car or scooter, and would use the aggressive car shot technique described above.290 Matthew Sprake, of Newspics, confirmed that he happily used hidden cameras to photograph subjects.291 What was striking about the evidence received from Mr Morgan, Mr Lyons and Mr Sprake was that apparently Splash, Big Pictures and Newspics did not have any code of practice or guidance to identify acceptable or unacceptable behaviour for staff or freelance photographers. All three witnesses noted that they sought to comply with the Editors Code (despite the fact they are not bound by it) but, as Mr Morgan noted, the Editors Code is not comprehensive enough for photographers generally as it is directed mainly towards the print side of journalism rather than the digital age or photographers generally.292 It was also clear that each photo agency had very limited control or oversight over the behaviour of the freelance photographers from whom they purchased photographs. Mr Lyons said expressly that freelance photographers were not the responsibility of Big Pictures.293 Of greater concern was the evidence from Mr Sprake and Mr Lyons which demonstrated a lack of consideration for the privacy and dignity of the subjects of their photographers. Mr Sprakes evidence revealed that ethical considerations about privacy and harassment played a very limited role in the planning and execution of photographic assignments: if a newspaper commissioned his agency to get photographs proving rumours of a new relationship or affair, proving the accuracy or otherwise of the rumour was the primary consideration, and the avoidance of harassment or breaches of privacy appeared to be very much secondary in his thinking.294 Mr Lyons evidence indicated a general disregard for the dignity of individuals in the public eye. In his book Mr Paparazzi, he had said:295 All these truths about the nature of celebrity mean that when Big Pictures is out there papping the stars, some will claim that to an extent were imposing on their privacy and causing them some kind of distress. My answer to that is simple: if you cant hack the job, dont wear the hat.
5.15
5.16
5.17
His evidence to the Inquiry largely confirmed that view. Asked about a series of privacy and/ or harassment judgments made against Big Pictures, Mr Lyons was either unable to recall the details, gave inaccurate details,296 or was unwilling to accept that Big Pictures had acted unethically.297 He considered that we live in a world of voyeurism.298 His view appeared to be that because 50 per cent of celebrities want to be photographed and they love it for their own self gain in terms of financial back pocket and to make them more famous,299 then the other 50 per cent who might also be styled as celebrities should accept the intrusion
pp11-20, Darryn Lyons, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-MorningHearing-9-February-2012.pdf 291 pp39-40, pp69-70, Matthew Sprake, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofAfternoon-Hearing-18-July-2012.pdf 292 pp89-90, lines 4-2, Nei Turner, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-7-February-2012.pdf 293 p1, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Darryn-Lyons. pdf 294 pp38-41, lines 7-18, Matthew Sprake, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcriptof-Afternoon-Hearing-18-July-2012.pdf 295 Lyons D, Mr Paparazzi, p149 296 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Second-ws-of-JK-Rowling.pdf 297 pp13-35, Darryn Lyons, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-MorningHearing-9-February-2012.pdf 298 p34, lines 2-3, ibid 299 p34, lines 14-17, ibid
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of photographers on whatever terms the photographers chose. The only time he would choose not to photograph a celebrity was where the litigation risk would be too high: its a purely commercial decision, he said, and therefore not one based on any ethical principle or personal sensitivity.300 5.18 A number of witnesses suggested that it was often difficult to tell whether an individual photograph taken by a freelance paparazzo amounted to a breach of privacy and/or harassment of the subject. Although this may sometimes be so in relation to an individual photograph viewed in isolation, I suspect that very often the press are supplied with a series of photographs taken on the same occasion, and that it may not be overly difficult for an experienced picture editor to make informed judgments based on an overall impression. Assessed in the round, the evidence indicated a significant regulatory gap in relation to independent or freelance paparazzi and press photographers. It is important to recognise the symbiotic relationship between the press and paparazzi. As Mr Turner noted, it is the press that creates much of the market for paparazzi photographs. Clause 4 of the Editors Code requires editors to ensure they do not use material which derives from intimidation, harassment or persistent pursuit. If that principle were applied properly, and newspapers refused to purchase or publish those images taken in situations of harassment, one might expect a substantial reduction in harassing behaviour from independent and freelance photographers. As witnesses such as Sir John Major suggested to the Inquiry, newspapers should be held strictly accountable in the context of the Editors Code for the photographs they chose to publish, regardless of their source. Furthermore, it should be standard practice to require newspapers to print the name of the photographer or the agency against any published photograph. That said, the preponderance of the evidence provided by newspaper photo-editors suggested that most newspaper titles do scrutinise the photographs submitted to them by agencies and freelancers, do reject those photographs which appear to have been taken in breach of the Editors Code, and do seek to regulate the behaviour of their employed photographers. The problem which the evidence has identified is therefore one which demands careful consideration. Mr Silva gave evidence of one of the more comprehensive systems for managing and monitoring the behaviour of photographers. His employed and freelance photographers are given strict guidelines on how to conduct themselves, often tailored to the specific tasks allocated.301 In relation to photographs submitted by freelancers, he identified 11 different factors that were considered before deciding to publish.302 Most of these considerations were sensible and praiseworthy: for how long was the photographer taking photographs; was the subject aware they were being photographed; was the subject harassed in any way? One was more problematic. Mr Silva would consider whether the subject of the photograph was in a public or private place but his view, which he had not discussed with his editor or with the PCC, was that there would be no reasonable expectation of privacy on a public street.303 The natural consequence of that approach is that those in the public eye are unable to exit their homes without the threat of intrusion by photographers. Nonetheless, overall, the factors considered by Mr Silva were exemplary and, applied consistently, ought to prevent much of the harassment complained of.
5.19
F
5.20
5.21
pp35-36, lines 24-7, ibid p6, paras 25-26, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Paul-Silva. pdf 302 p3, para 12, ibid 303 pp10-13, lines 7-9, Paul Silva, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-11-January-2012.pdf
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5.22
Mr Silva gave examples of how the application of these principles had often led to the rejection of photographs submitted to the Daily Mail, including: photographs of a member of the Royal Family and a celebrity were rejected because the subjects may have been followed prior to the photograph; a photograph of a celebrity entering another celebritys home was rejected because Mr Silva was unhappy that a photographer was outside the celebritys home; pictures of a celebrity holding a baby were rejected because they were shot through a second floor window and were clearly intrusive.304 Those examples suggested an effective system in place to discourage or prevent harassment. The Suns picture editor John Edwards was not able clearly to identify the list of factors taken into account when deciding whether to publish photographs, but his evidence was that he too took care to review photographs prior to publication to ensure they did not breach privacy and were not taken in situations of harassment. He had rejected photographs of, for example, a well-known singer attending cancer treatment, photographs of a TV presenter taking her children to school, and a photograph of a heavily pregnant Ms Allen in a public street.305 Michael Lidbury of the Daily Express,306 Liz Cocks of the Mail on Sunday,307 and Mark Moylan of the People308 gave evidence of slightly different approaches to managing staff photographers and assessing photographs sent in by freelancers, but all three shared a general approach which suggested that care was taken to avoid harassment, and/or to avoid the publication of photographs taken in situations of harassment. The evidence of picture editors was nonetheless concerning. There appears to be a gap between the in-principle approach discussed by the picture editors and the experiences of those who have been subjected to harassment, as described above. From the oral evidence of Mr Silva and Mr Edwards,309 it appeared that the Editors Code and/or the self-imposed principles for preventing harassment are not applied as consistently as all the evidence from the picture editors might have suggested. In relation to the harassment of Ms Hong, Mr Edwards accepted that there was no rational difference between photographs of a heavily pregnant Ms Hong on a public street and a heavily pregnant Ms Allen on a public street. In his written evidence, Mr Edwards highlighted that he had chosen not to publish the photograph of Ms Allen because he was sensitive to her privacy given her advanced stage of pregnancy and, having checked with her PR representative, discovered that she did not want the photographs published.310 However, he defended The Suns publication of photographs of Ms Hong in an advanced stage of pregnancy, at a time when she was regularly pursued by photographers, without reference to her and without consideration of her privacy or concerns for harassment. He could not adequately explain why he had adopted a different approach in each case.311
5.23
5.24
5.25
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p5, para 22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Paul-Silva.pdf pp2-3, paras 4-6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-JohnEdwards.pdf 306 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Michael-Lidbury.pdf 307 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Liz-Cocks.pdf 308 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Mark-Moylan.pdf 309 Mr Silva and Mr Edwards were the only picture editors to give oral evidence. The following discussion therefore focuses on their evidence, but it should not be read as identifying any particular criticism of the two of them above any other. It is the principles that are important 310 In a letter to the Inquiry after the evidence gathering phase had been concluded, Mr Edwards said in the case of Ms Allen there was a need for increased sensitivity on account of Ms Allens previous miscarriages. However, although this was no doubt an additional consideration, it still does not adequately explain the treatment of Ms Hong 311 pp117-119, lines 14-3, John Edwards, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-9-January-2012.pdf
305
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5.27
Similarly, in Mr Silvas written evidence he had highlighted the fact that he had previously rejected photographs taken outside a celebritys home on the basis that he was unhappy that the photographer was stationed outside their home.312 However, in the case of Ms Hong, Mr Silva saw no objection to what he considered was the normal response of sending a photographer to the home of Ms Hong after hearing of the birth of her child.313 In what might be seen as a conflation of the public interest with what interests the public, Mr Silva denied that the birth of Mr Grants child was a private matter and noted that it was a major showbiz story which was of great interest to our readers and thats the reason why we sent.314 That justification was echoed by Mr Edwards who, when asked whether he agreed that it was clear that it was a private situation, said: Its a difficult call. Mr Grant is of huge interest to our readers, and I think you know, hes an A list Hollywood actor who everyones very interested in.315 Neither Mr Silva nor Mr Edwards had considered calling Mr Grants PR in advance to inquire whether photographers would be welcomed. Although Mr Silva claimed that his photographer would have left immediately if he had been told he was not welcome,316 Mr Grants evidence was that when he arrived at the house he made it very clear that photographers were not welcome.317 However, despite this, the photographers (including the Daily Mails photographer) remained and did not leave until asked to do so by the PCC. This somewhat undermines the claims of a number of newspapers that the photographers were simply waiting to see if Ms Hong would willingly pose for a photograph with the child. If there were any doubt about that, Mr Grant made clear that she would not do so but the photographers remained nonetheless. The individual decisions of the Daily Mail and The Sun to publish a photograph of a heavily pregnant Ms Hong on a public street, or like the other newspapers who did the same, to send a single photographer to her house shortly after she had given birth, may not have led inevitably to harassment. But the collective decisions of numerous photo-editors, photoagencies and freelance paparazzi, certainly did. And it is this collective responsibility which often gives rise to the problem. In relation to the publication of photographs of Ms Hong, Mr Edwards argued that there could be no reasonable objection to the publication of a single photograph of an individual taken in a public place which did not appear to be taken in circumstances of harassment. In the abstract, that must be correct. But, very often, for the subject of the photograph, that single photograph taken in a single public place will be one of many photographs taken in many public places by many photographers, over a course of many weeks, months or years. In those circumstances the single photograph in a single public place may not evidence any harassment precisely because the harassment is evidenced by the cumulative experience. I recognise that this makes it very difficult for editors and photo-editors to assess the ethics
5.28
5.29
5.30
In a subsequent letter to the Inquiry, sent after Inquiry had concluded its evidence gathering phase, Mr Silva claimed that he had different reasons for rejecting that particular photograph, namely that there was evidence that the celebrity had been followed. This may be so, but it was not the reason put forward in his written evidence: para 21.6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Paul-Silva.pdf 313 pp41-46, lines 16-25, John Edwards, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-9-January-2012.pdf 314 p41, lines 20-22, ibid 315 p110, lines 5-8, John Edwards. http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-9-January-2012.pdf 316 p46, lines 20-25, Paul Silva, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-MorningHearing-11-January-2012.pdf 317 p3, para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Supplemental-Witness-Statement-ofHugh-Grant.pdf
312
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of publishing a particular photograph, but assess these they must. And, in doing so, one of the important considerations is the collective and/or cumulative impact of the decisions of numerous titles to take or publish photographs of the same subject. If that is in doubt, a phone call to the representative of the subject, much like the phone call Mr Edwards made to Ms Allens PR , may provide an answer. 5.31 With regard to the presence of multiple photographers outside Ms Hongs home, all competing for a photograph, and unwilling to leave when requested, it is difficult to see how that can be justified as ethical or Code-compliant behaviour. All photo-editors responsible for sending photographers to Ms Hongs home must have been aware that it was highly likely that there would be a pack of photographers outside her house, and that the situation could be oppressive for the new mother.318 In that context, and when Mr Grant made it clear that photographers were not welcome, it is difficult to understand why, applying the general principles contained in all of the picture editors evidence, the photographers present remained at the house until the PCC issued a desist request to all newspaper editors. Although Colin Myler praised the effectiveness of PCC desist notices in circumstances like those endured by Ms Hong,319 the need to issue such a notice reflects a failure on the part of editors to ensure that their photographers comply with the code of conduct to which the titles are committed. If the PCC can see that a situation of harassment has developed, responsible editors should recognise that fact too. The harassment experienced by the McCanns on their return from Portugal, discussed above320 is another prime example of where responsible editors and photo-editors could not reasonably claim to have been unaware of the harassment experienced, but where employed and freelance photographers, as well as journalists, were sent to pursue the McCanns nonetheless. Mr Edwards could see in retrospect that the situation they faced was unacceptable321 but, at the time, he had sent his photographer to join the pack who had gathered outside their house. Mr Silva also acknowledged that, with hindsight, possibly some of the photographs (in particular those featuring unpixellated images of the McCann children) should not have been used,322 but noted that the story was unique, intense and one of the most difficult he had had to work on.323 In my view, there are a number of reasons why there is such a disjunction between the general principles articulated by photo-editors to prevent harassment and the specific examples of harassment heard by the Inquiry. I accept that a good deal of the harassment experienced by those in the public eye is caused by unregulated freelancers. I also accept that the British press has only limited influence over those freelancers: although the British press can reduce the market for photographs obtained in situations of harassment, the harassers can still sell into the international market.
5.32
5.33
5.34
In addition, whether Mr Silva, in particular, knew it or not, Daily Mail journalists had been calling Ms Hong repeatedly and leaving messages on her answer-phone; in consequence she already felt pressured by journalists. Mr Silvas evidence and subsequent letter to the Inquiry did not address this broader context, but it is another example of how the experience of harassment may be cumulative and cannot be considered without regard to that wider context 319 p68, lines 3-17, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-15-December-20111.pdf 320 Part F, Chapter 5 321 pp115-117, lines 25-10, John Edwards, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-9-January-2012.pdf 322 It seems clear that at least some of the photographs showing the McCann children were taken with the consent of the McCann family 323 pp54-57, lines 8-15, Paul Silva, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-11-January-2012.pdf
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5.35
However, it is clear from the evidence provided to the Inquiry that not all of the blame for harassment of those in the public eye can be levelled at the unregulated freelance paparazzi. The British press has been guilty of publishing photographs clearly taken in circumstances of harassment, and employed photographers and journalists have been guilty of harassing behaviour. It is possible that, contrary to the evidence given to the Inquiry, editors and photoeditors do not, in general, take care to avoid harassment. Taking this in the round, I believe that the evidence provided to the Inquiry by photo-editors was essentially genuine, and that photo-editors and editors alike do, in general, try to take care to avoid situations of harassment. However, there appear to be two general factors which conspire against that care which means that the harassment of individuals continues. First, some of the harassment experienced by witnesses to the Inquiry is the consequence of collective and cumulative decisions by photo-editors and editors, rather than single obvious breaches of the Editors Code: each individual publications decision might appear justified, but the collective and cumulative decisions of many editors over a period of time are not. Editors must face up to this problem. In a letter to the Inquiry, Mr Edwards referred to the treatment of the McCanns on their return from Portugal, acknowledging again that the situation was unacceptable. He blamed it on a collective problem for which television crews and international press were also responsible, but defended The Sun, denying that it had made any inappropriate publication decision. That cannot be right in circumstances where The Sun had a photographer within the pack outside the McCanns home. It is one thing to say that there is a collective problem and we are all responsible. It is another thing entirely to say that there is a collective problem, and therefore we cannot be held responsible individually. Second, it seems that where a story is too big, as in the case of the McCanns, or where a readerships interest in a celebrity is too great, as in the case of Mr Grant, the general principles applied to avoid harassment are relaxed, or even set to one side. That is consistent with Piers Morgans observation in a note to Assistant Chief Constable Jeremy Kirkby that Fame and crime sends most of the usual rules out of the window.324 It is also consistent with two observations made in other parts of this Report: first, that where the perceived imperatives of very big stories are concerned, there is a tendency to disregard the rule book, and second, that there has been, within parts of the press, a conflation of the public interest with what interests the public, such that individual privacy and dignity is ignored to satisfy the demands of a readership.325 Mr Peppiatts evidence appeared to support this conclusion. He told of his pursuit of the Britains Got Talent star Susan Boyle, at a time when there was huge international interest in her story. Under enormous pressure after her sudden rise to fame, Ms Boyle had been acting unpredictably and lashing out. The producers of Britains Got Talent had sent her to Scotland for some time out to relax and recover and the press were expressly asked to leave her alone. Mr Peppiatt recalled that this request was like a red rag to a bull for the Daily Star, which sent him to Scotland to pursue her and to make a mock marriage proposal. Mr Peppiatt spent a week pursuing Ms Boyle around Scotland before making the mock proposal, undoubtedly adding to the stress she was under. Mr Peppiatt said:326
5.36
5.37
F
5.38
5.39
pp28-29, lines 2-17, Jeremy Kirkby, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-27-March-2012.pdf 325 See paragraph 5.27 above and Section 2 above 326 pp23-25, lines 25-25, Richard Peppiatt, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Morning-Hearing-29-November-2011.pdf
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I think you caricature people and you make them not so much human beings as just your target on a story, and certainly it hammers home I think its a very hardnosed reporter on Fleet Street who cant recognise that sometimes the treatment is not humane, and I think that Susan Boyle is a good example of probably when I overstepped the mark with harassment.
6. intrusion into grief and shock

6.1 Partly a subset of harassment, a further complaint that has been levelled at the press is that it has shown insufficient respect for the special sensitivity of those grieving the death of those close to them, or in shock from tragic events. The press intrusion experienced by the McCanns, the Dowlers, and the Bowles family,327 are some of the more high profile examples of this complaint. But the Inquiry heard evidence of many more examples. As historic context, Disaster Action, a charity founded by the survivors and bereaved of disasters reminded the Inquiry of The Suns coverage of the Hillsborough Disaster, in which 96 Liverpool FC fans lost their lives, as an example of the appalling impact that insensitive and irresponsible reporting of death and disaster can have.328 Under the headline THE TRUTH, The Sun published a story containing assertions that some fans picked the pockets of victims, urinated on police officers (brave cops) and beat up PC giving kiss of life. Although this report has long been undermined, the myth has persisted.329 The reality has now been very substantially exposed in the publication of the report of the Hillsborough Independent Panel.330 In a statement issued after the publication of the report of the Panel, Mr MacKenzie (then editor of The Sun) asserted that he was misled when handed a piece of copy from a reputable news agency in Sheffield in which a senior police officer and senior local MP were making serious allegations against fans in the stadium and that he had absolutely no reason to believe that these authority figures would lie and deceive over such a disaster. He said he published in good faith. A contrary account comes from Harry Arnold, the reporter who had drafted the story; he told the BBC that he was aghast when he saw the headline, saying that the story he had prepared had been written in a fair and balanced way because he appreciated that they were no more than allegations.331 He challenged Mr MacKenzie at the time saying that he could not say what was written in the article because we dont know its the truth; Mr MacKenzie brushed the point aside responding Oh, dont worry. Im going to make it clear that this is what some people are saying. The relevance of the story to this Inquiry shines out of the editorial in The Sun on 13 September 2012 which was in these terms:332 The Suns reporting of the Hillsborough tragedy 23 years ago is without doubt the blackest day in this newspapers history. ... It highlights a concerted campaign ... to smear the innocent by fabricating lurid allegations about Liverpool fans and then feeding them to the media.
Part F, Chapter 5 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-Disaster-Action.pdf 329 See, for example, the way in which the former Liverpool footballer, Alan Hansen, on many occasions has had to rebut the allegation: http://www.telegraph.co.uk/sport/football/teams/liverpool/9539741/Hillsborough-report-thiswas-the-most-important-day-in-Liverpools-history-says-Alan-Hansen.html 330 To be found at http://hillsborough.independent.gov.uk/report/ published on 12 September 2012 331 Hillsborough: searching for the truth, BBC1 Yorkshire and North West 9 September 2012 332 http://www.thesun.co.uk/sol/homepage/news/article4535743.ece
328 327
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But it is to the eternal discredit of The Sun that we reported as fact this misinformation which tarnished the reputation of Liverpool fans including the 96 victims. ... The role of a newspaper is to uncover injustice. To forensically examine the claims made by those who are in positions of power. In the aftermath of the Hillsborough tragedy we failed. And by failing in our duty we heaped more misery on the families of those who lost their lives and the people of Liverpool. Nothing can excuse The Suns Page One presentation, under the heading The Truth. It was inaccurate, grossly insensitive and offensive. This version of events was NOT the truth. 6.5 The extent of this egregious failure, now fully recognised (but not previously in the 23 years that have elapsed), exemplifies many of the concerns which have been ventilated in the Inquiry, not the least in relation to the intrusion into grief and shock, but also in relation to accuracy (discussed below). It also underlines the enormous power of the press and, as a consequence, its absolute obligation to exercise that power responsibly. The press has real influence in our society and is given privileges in law in order to fulfil its function. The story underlines the need for a regulatory mechanism to challenge the press and to require it to justify itself. If the Hillsborough reporting represented large scale intrusion into grief and shock, the Inquiry heard extensive evidence of smaller scale, but equally distressing coverage of death and tragedy. Margaret and James Watson told the Inquiry of the insensitive reporting of their daughters murder by a fellow student in the 1980s. The articles published in the Glasgow Herald and in Marie Claire magazine, which, contrary to the clear conclusions expressed at the trial, sought to portray their daughters murderer as a victim and their daughter as involved in a feud with the murderer, caused the couple and their son immense anguish which was still clearly felt when they gave evidence.333 Similar anguish was caused by the reporting of the death of Ms Diamonds son in 1991. Only an hour after Ms Diamond found her son dead, photographers and journalists began to knock at her door. The pack that arrived was so large that the family priest was too intimidated to enter the house. A photographer was seen sitting on Ms Diamonds back wall, trying to photograph the grieving family in their garden; a journalist tried to force her way into the house on the pretence of delivering flowers. Despite the familys express requests for the funeral to be private, a freelance photographer took photos of Ms Diamond and her husband with their sons coffin. Further, despite express requests not to do so, The Sun ran the photograph on its front page the following day. Ms Diamond recalled the series of events as a great violation of her privacy and an enormous intrusion into her private grief.334 It might be said that the evidence of Ms Diamond, along with that of the Watsons and the Hillsborough example, are of purely historical interest, given that they each relate to publications more than 20 years ago. But the evidence heard by the Inquiry does not support that view. The experiences of the McCanns, the Dowlers and the Bowles family, all of which occurred much more recently, suggest that parts of the press can continue, on occasion, to display a cavalier attitude to intrusions into shock or grief.
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6.8
pp82-102, lines 19-2, Margaret Watson, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Transcript-of-Morning-Hearing-22-November-20111.pdf; pp1-4, paras 1-13; p5, paras 15-16, http://www. levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Margaret-Watson.pdf 334 pp7-9, paras 29-37, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-AnneDiamond1.pdf
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6.9
Evidence from other witnesses supports that view as well. Shortly after Mr Mosleys son died in 2009, up to 15 journalists and/or photographers camped outside his sons home, hoping to snap a photograph of Mr Mosley exiting the house. Only after his solicitors threatened to bring an action for harassment did the journalists leave.335 Similar evidence was given to the Culture Media and Sport (CMS) Select Committee by Tim Fuller, the father of a girl who had committed suicide in 2008 and who had been unable to go to his daughters house for days after her death because it was surrounded by press.336 Likewise, in the aftermath of her daughters stabbing, Baroness Hollins was door-stepped by journalists and photographers, subject to subterfuge by journalists pretending to be doctors, and photographed with long lens cameras while on private family outings.337 The harassment and intrusion of which these witnesses complained appears to be borne from a culture of indifference, within parts of the press, to the sensitivities of those who are grieving or in shock; that indifference is doubtless borne out of an anxiety to capture the big story. Mr Peppiatt gave evidence of a story he had written immediately after the suicide of Kevin McGee, the ex-partner of television personality Matt Lucas. On the day of Mr McGees death, the Daily Star was telephoned by a source who made sensational claims about the drug and alcohol abuse that had caused Mr McGees death. The source also alleged that Mr Lucas was on suicide watch himself. Although Mr Peppiatt was keen to meet the source to verify the claims, he was told to write and publish the story immediately without further checking. Prior to publication, no consideration was given to the sensitivity of those close to Mr McGee, nor apparently to the truth of the story. Mr Peppiatt noted that within the newspaper there was certainly the consideration that the man is dead, therefore you cant really libel him.338 Mr Lucas successfully sued the newspaper and was awarded damages for breach of privacy and for libel (insofar as the libel related to him rather than Mr McGee).339 Mr Peppiatt recalled that he expected to be disciplined in some way in the aftermath of the litigation for his part in the story. But no internal inquiries were made and no disciplinary action taken. Mr Peppiatt considered that the attitude of the newspaper was that the damages award was simply part of the cost of doing business.340 The Daily Mails Mr Dacre was asked about an article on the death of Boyzone singer, Stephen Gately, which had given rise to over 25,000 PCC complaints. A post-mortem examination had found Mr Gately to have died of natural causes. The article speculated, with some conviction but no factual basis, that his death could not have been natural, but must have been linked to a dangerous homosexual lifestyle. His death was associated with the death of Mr McGee and was said to strike a blow to the happy-ever-after myth of civil partnerships.341 In his evidence to the Inquiry, Mr Dacre said that he wished that the article had been subject to more judicious sub-editing, but he defended the journalists right to express her view in the newspaper.342 The PCC adopted the same approach, criticising parts of the article but deciding
6.10
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6.12
p13, paras 57-60, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-MaxMosley.pdf 336 paras 377-398: http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/362i.pdf 337 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Baroness-Hollins.pdf 338 pp21-22, lines 3 18, Richard Peppiatt, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Morning-Hearing-29-November-2011.pdf 339 http://www.guardian.co.uk/media/2010/may/25/daily-star-matt-lucas 340 p52, lines 8-14, Richard Peppiatt, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Morning-Hearing-29-November-2011.pdf; p3; para 8, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Witness-Statement-of-Richard-Peppiatt.pdf 341 http://www.dailymail.co.uk/debate/article-1220756/A-strange-lonely-troubling-death.html 342 pp68-73, lines 15-19, Paul Dacre, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-6-February-20121.pdf
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that it did not amount to a breach of the Editors Code because it would not be proportionate to rule against the columnists right to offer freely expressed views about something that was the focus of public attention.343 6.13 The conclusion of the PCC is surprising. A columnist is, of course, entitled freely to express his or her views. But where those views had no factual basis, were expressed very shortly after Mr Gatelys death, and intruded into the grief of those who loved him, it is difficult to see how that did not amount to a breach of the requirements of the Editors Code that newspapers should handle sensitively stories which intrude on personal grief or shock. In any case, the publication of the story, which the PCC recognised was in poor taste, displayed a disregard for the grief of the friends and family of Mr Gately. There may be some truth in the old chestnut that if it bleeds, it leads. The reporting of crime, and the reporting of the death of those in the public eye, will always be an important and valuable part of the press. As noted by Baroness Hollins, the majority of the press achieve this with sensitivity and care.344 But it is clear to me that a significant minority does not. To that minority, death or tragedy is treated as just another news story, to be reported without regard to the special considerations that ought to apply to protect the friends and family of the subjects of the stories. To address the failings of this minority, Mr and Mrs Watson proposed a change in the law to allow the family of the dead to sue for libel.345 It is an interesting idea and one which may well have positive effects in some cases, although it would cause real complications and difficulties in others: would, say, the family of Sir Winston Churchill be able to sue if a published book was defamatory of him? Furthermore, it is a change that would not address the wider problems of the harassment by journalists and photographers of those grieving the loss of loved ones, and truthful but insensitive reporting in the aftermath of death or tragedy. To address those wider issues, it is not a change in the law but a change in culture that is required, to ensure that those who are responsible for reporting, photographing, and editing stories of death and tragedy treat those who may be grieving or in shock with the dignity they deserve. It is clearly not impossible to do so because so many, much of the time, do so. It is difficult, therefore, to see why it should not be the practice of all.
6.14
6.15
7. treatment of children
7.1 A further criticism made by some Core Participants to the Inquiry was the failure of parts of the press to treat children with dignity and respect. As noted in the evidence of Stephen Abell, then Director of the PCC, the Editors Code imposes tight restrictions to safeguard the interests of children, and its terms are interpreted broadly to provide a high level of protection to children. Although a public interest exception may allow for the publication of private information about children, the public interest justification must be exceptional to outweigh the paramount interests of children.346 No-one who gave evidence to the Inquiry suggested that the Code was in any way defective in providing this higher level of protection to children, but the evidence suggested that it was not always observed by parts of the press.
http://www.pcc.org.uk/news/index.html?article=NjIyOQ; http://www.pcc.org.uk/news/index.html?article=NjIyOA p1, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-BaronessHollins.pdf 345 p10, paras 31-34, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-ofMargaret-Watson.pdf 346 pp125-126, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Stephen-Abell. pdf
344
343
658
7.2
In her evidence, Ms Church revealed a disrespect from photographers, journalists and editors for her own privacy when a child, and subsequently a disregard for her childrens privacy once she was a mother. As noted above, Ms Church told the Inquiry that, after the birth of her daughter, when six paparazzi were waiting outside her house for a photograph of the baby, she chose to sell managed photographs to OK! Magazine rather than face the pack of photographers: the idea was to allow the photographs to be taken in the hope that she would then be left alone. Rosie Nixon, the editor of Hello! Magazine, told the Inquiry of the pressure experienced by new mothers in Ms Churchs position, as there was a sort of bounty on the head of that child for the first photos. They can make a paparazzo a lot of money.347 The harassment experienced by Ms Church after the birth of her child was shared by Ms Hong after giving birth to Mr Grants child,348 and by Ms Rowling after the birth of her children.349 The Inquiry was told that the demand for photographs and information about the children of those in the public eye continued well beyond the early days of the childrens lives. Mr Coogan spoke of the publication, without consent, of a photograph of his seven year old and five year old children.350 In addition to the many examples given by Ms Rowling of photographers seeking to take (and newspaper titles publishing) photographs of her children without consent, she told the Inquiry of a journalist placing a note in her five year old daughters schoolbag,351 and another journalist contacting the headmaster at her 15 year old daughters school to discuss private (and fabricated) information about her daughter.352 The intolerable levels of press and paparazzi harassment experienced by the McCanns on their return to Portugal was suffered not only by Drs Kate and Gerry McCann, but also by their two and a half year old twins who were with them throughout and who found the experience very upsetting. Photographs of the twins were published in numerous newspapers, without pixellation, and without any clear justification except for the fact that the story was unique and intense.353 A further, high profile example of this failure was the decision of The Sun newspaper, in 2006, to publish private medical information about the son of the then Chancellor of the Exchequer, the Mr Brown, discussed above.354 All of these examples suggested that parts of the press failed to abide by the Editors Code generally, but specifically failed to abide by the requirement not to use the fame or notoriety of a parent as sole justification for publishing private details of a child. When considering the evidence in the round, it is fair to say that the press tends to be more respectful of the privacy of children than that of adults: there were substantially fewer complaints heard by the Inquiry in relation to children than in relation to adults, and even the Browns noted that, since The Suns publication of medical information about their child, the press has generally refrained from publishing photographs of, or information about, their children. However, the fact that unethical press practices in relation to children are less frequent, or limited to a smaller section of the press, does not mean that there is less urgency
7.3
7.4
7.5
7.6
pp37-38, lines 16 9, Rosie Nixon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-18-January-2012.pdf 348 above at section 2 349 above at section 2 350 pp34-36, lines 2-10, Steve Coogan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-22-November-20111.pdf 351 pp45-46, lines 6-2, JK Rowling http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-24-November-20112.pdf 352 pp62-63, lines 10-21, ibid 353 pp54-57, lines 8-15, Paul Silva, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-11-January-2012.pdf 354 Part F, Chapter 5
347
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in addressing them: the publication of the photograph of the sister of Sebastian Bowles,355 suggests that the Editors Code continues to be breached in relation to children. The reason for the Editors Code is obvious: to those whose children have been unjustifiably exposed to the public gaze, and to the children themselves, the damage caused can be significant.
8. Representation of women and minorities

Introduction
8.1 A different kind of criticism made by those who submitted evidence to the Inquiry was that the representation of women and minorities (such as immigrants or asylum seekers), at least in parts of the press, is discriminatory and ill-considered. What makes these complaints different from those which precede them is that they are complaints on behalf of classes of people, rather than a series of individuals. Under the complaints system operated by the PCC, which normally requires an individual complainant who was individually affected by a story, this kind of complaint was not ordinarily admissible.356 Accordingly, the Inquiry provided a first opportunity for a number of representative groups to express their concerns about discriminatory press reporting. The starting point for an accurate examination of this topic is the Editors Code of Practice, the relevant provisions of which specify as follows:357 It is essential that an agreed code should be honoured not only to the letter but in the full spirit. It should not be interpreted so narrowly as to compromise its commitment to respect for the rights of the individual, nor so broadly that it constitutes an unnecessary interference with freedom of expression or prevents publication in the public interest. ... 1. Accuracy The press must take care not to publish inaccurate, misleading or distorted information, including pictures. ... 12. Discrimination (i) The press must avoid prejudicial or pejorative reference to an individuals race, colour, religion, gender, sexual orientation or to any form of physical or mental illness or disability. (ii) Details of an individuals race, colour, religion, sexual orientation, physical or mental illness or disability must be avoided unless genuinely relevant to the story.
8.2
Part F, Chapter 7 However, the evidence suggested that exceptions were made to allow representative complaints in certain undefined circumstances: see, for example, the evidence of Stephen Abell at pp109-111, lines 17-15, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-30-January-2012.pdf 357 http://www.pcc.org.uk/assets/696/Code_of_Practice_2012_A4.pdf
356
355
660
8.3
In the context of this section of the Report, in theory, it is possible to envisage three types of complaint to the PCC arising out of these provisions. First, a complaint brought by an individual of inaccurate, discriminatory and/or pejorative reporting directly relating to him or her. The vast majority of complaints of discrimination do not fall within this category. Second, a complaint brought by a group relating to an individual directly identified in the offending article, where that individual does not wish to bring his or her own complaint. Here, no issue arises on the Code as such, because the case clearly falls within the language of clause 12; the issue is the PCCs policy. Third, a complaint brought by a group, relating to alleged discriminatory treatment of the group as a whole, rather than any one individual. This type of complaint does raise an issue on the terminology of the Code because clause 12 refers in terms to an individuals personal characteristics, not to those of a group. Put simply, the Code would clearly be breached if an article attacked Mr Y on the basis that he was a member of a particular religious group, but it is far less clear that the same breach would occur if there were no mention, either express or implied, of Mr Y in the article and the attack were directed at the religious group in general. A reading of the Code which takes on board its spirit rather than simply the letter probably does not surmount this difficulty. The only route to finding a violation of the Code in such a case would be by invoking clause 1, the requirement to be accurate. Some discriminatory reporting is too subjective and loosely worded to fall foul of this provision, but it is not too difficult to envisage examples of reporting which would engage it. Those representing womens and minority groups would be entitled to retort that if the Code as currently worded creates the kind of legalistic difficulties which have just been outlined, then the solution is a straightforward one: simply amend the Code. The force of this point is noted, but it should be considered in depth by any future regulator, rather than by this Inquiry. The argument has also been put that there is an important issue of free speech in play here, and that the press is entitled to be partisan. Furthermore, matters of taste and decency are outside the Code, and properly should be. The force of these arguments needs to be recognised, but only in their proper context. For example, putting to one side issues concerned with domestic violence, material which is pornographic and demeaning to women does not violate clauses 1 and 12 of the Code, and is readily available in pornographic magazines subject to the general law. This material is offensive to many, but an issue does arise for consideration as to whether a regulator of a free press which is entitled to be tasteless and indecent should be intervening in this sort of area. On the other hand, most people would argue that obviously racially offensive material, which on one level might be said to be partisan in tone and content and therefore defensible as falling within the prerogative of a free press, should be capable of being the subject of regulatory comment notwithstanding the absence of an obvious first party complainant. It must be recognised, however, that there are many cases along the spectrum where reasonable people will disagree. At the very least, the issue is both complex and sensitive. The Inquiry heard from a number of groups who advanced powerful arguments in favour of greater regulation, in particular for greater balance. Although the Inquiry received much evidence and submission devoted to the issue of the value of a free press in general terms, few came forward to advance the contrary case to that put forward by the groups I have mentioned. Sunday Sport (2011) Ltd has recently filed a series of well-argued and sustained submissions emphasising the free speech issues and drawing attention to the fact that, in its view, the Inquiry has not received
8.4
8.5
8.6
8.7
8.8
661
a representative spread of the available factual and opinion evidence. Dominic Mohan, the editor of The Sun, made a spirited defence of Page 3. He is not to be criticised for doing so, and many will feel that Page 3 of The Sun raises a taste and decency issue and none other. The point I am seeking to make at this stage is that I am alive to all the arguments and to the fact that, on what might be called the central ground, there is room for reasonable, opposing points of view.
Representation of women
8.9 Object, the human rights organisation, gave comprehensive evidence to the Inquiry of what it described as the sexual objectification of women and girls, and the mainstreaming of the sex and porn industries in the media and popular culture.358 Its evidence focused on Page 3 imagery, namely imagery found in The Sun, the Midweek and Sunday Sport, and the Daily and Sunday Star, of young (almost always white) women with bare breasts, sometimes entirely nude and in sexualised poses. Anna Van Heeswijk, representing Object, described a gradient of extremity running from the Sun to the Daily Star to the Sport:359 although Page 3 imagery is limited to page 3 of The Sun, it is found on many more pages in the Daily Star and yet more still in the Sport. Indeed, The Sport contains a self-explanatory nipple count which often numbers over 100.360 In each of these titles, the posed photographs of topless women may be accompanied by stories including up-skirt photographs, and extensive advertising for sex web cams, pornographic DVDs and escort agencies.361 Ms Van Heeswijk considered there was no marked difference between the content which exists within classified pornographic materials and the contents within some of these mainstream Page 3 tabloids.362 This may be putting it high with regard to The Sun, but it would be hard to disagree when looking at the coverage in the other titles. The front page of the Midweek Sport from 16 November 2011, for example, contained a full page photograph of a glamour model in a small red bikini, with her legs akimbo. Beside that photograph was a headline, Top 50 Glamour Babes Ever 8 page topless pullout. To the top right of the page was a headline, Pippas Amazing Bum Pic Shock New Photo Inside. To the bottom left was a censored photograph with the headline Jess Goes Topless Jungle Babe Bares Boobs Uncensored. At the very bottom of the page was the headline, Two Free XXX Sex DVDs for every reader.363 Ms Van Heeswijk argued that this type of material should not be on sale alongside other daily newspapers, but should be limited to the top shelf alongside pornographic material. She noted:364 Page 3 imagery is already prohibited in the workplace under sexual harassment legislation (set out most recently in the Equalities Act 2010), and it is restricted from broadcast media before the 9pm watershed. It would therefore be logical to recommend that Page 3 images which are considered unacceptable in the workplace,
p1, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-statement-of-Anna-vanHeeswijk.pdf 359 p1, para 5, ibid 360 p1, para 8, ibid 361 p2, para 9 and 14, ibid 362 p17, lines 17-25, Anna Van Heeswijk, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-24-January-2012.pdf 363 http://www.object.org.uk/files/Exhibit%201a.pdf 364 p3, para 18-19, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-statement-of-Anna-vanHeeswijk.pdf
358
8.10
8.11
662
and which would not pass the pre-watershed test for television, should not be displayed in newspapers which are sold at childs eye level with no age-restriction. These recommendations would allow for consistency in media regulation when it comes to keeping harmful materials out of the mainstream and away from children. 8.12 It is hard to argue against that in respect of some of the material contained in the Sport at least, but the regulation of the sale of explicit print material does not fall directly within the scope of this Inquiry. Of greater potential concern to the Inquiry is the degree to which the images may reflect a wider cultural failure to treat women with dignity and respect and/or a practice which, intentionally or not, has the effect of demeaning and degrading women. In respect of Page 3 imagery, there are a range of arguments. There are those, like Object and the recently formed internet group No More Page 3, who argue that the persistent representation of topless young women on the pages of national newspapers is inherently degrading and demeaning. By contrast, there are those like Mr Mohan, who argue that Page 3 is neither harmful nor offensive, and satisfies the demands of a readership.365 Somewhere in between are those who argue that Page 3 is simply an anomaly: out of place in the 21st century where a woman is just as likely as a man to purchase (or edit) a tabloid newspaper, or lead the country. The arguments between those who adopt each viewpoint will continue. But for the purposes of this Inquiry, the interesting point is that it was not Page 3 per se which gave rise to the core complaints made by womens groups. Instead, it was a general attitude which was found throughout the pages of those tabloids which contained images of semi-naked women (referred to as Page 3 tabloids), and of which Page 3 was only one example. Object, along with other organisations such as Turn Your Back on Page 3, Eaves Housing for Women, and the End Violence Against Women Coalition argued that Page 3 imagery was part of a broader culture of objectification and sexualisation of women in those newspapers. Ms Van Heeswijk wrote: This pervasive objectification and sexualisation of women is not restricted to the portrayal of the Page 3 models or to the Page 3 type feature. Rather, to varying extents, it influences the way that almost all women are portrayed in Page 3 tabloids, including female celebrities. Examples include an article in the Daily Star on the size of 15 year old Charlotte Churchs breasts (Shes a big girl now Child singing sensation showed just how quickly shes grown up after turning up at a Hollywood bash looking chest swell). This is juxtaposed with commentary of outrage against the satirical sting Brass Eye documentarys Paedophile special (Exhibit 4). More recent examples include a feature in the Sport commenting on the genitalia of a female newsreader which it describes in derogatory terms. (Exhibit 5)366 8.15 Both of the examples given in that passage support the broader points made by Ms Van Heeswijk and others. First, the unfortunate juxtaposition of the article expressing outrage at a satirical programme on paedophilia and an article commenting on a 15 year-olds breasts exposes a hypocrisy in relation to the sexualisation of young girls and women that is seen beyond the Page 3 tabloids: some have commented on the awkward co-existence of the Daily Mails support for traditional values with the Mail Onlines sidebar of shame. Second, the article commenting on the genitalia of a female newsreader supports the view that some
8.13
8.14
pp1-2, paras 2-11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statement-ofDominic-Mohan1.pdf 366 p1, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-statement-of-Anna-vanHeeswijk.pdf
365
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Page 3 tabloids apply a demeaning and sexualising lens beyond those who choose to appear in their pages with breasts exposed: even the most accomplished and professional women are reduced to the sum of their body parts. 8.16 Objects submission to the Inquiry gave examples of the sexualisation or demeaning of women from articles in The Sun, the Daily Star, and the Sport over a single week in November 2011. The articles exhibited demonstrated the gradient of extremity from The Sun through the Daily Star to the Sport, but all three titles contained what can only be described as objectifying material.367 All three included numerous articles with no other purpose except to show an image of a scantily clad or topless woman: see, for instance, The Suns articles Jess takes the plunge and Celeb beauty gets em out. All three titles included articles with no purpose other than to attach a photograph of, and describe in derogatory language, a womans breasts or bottom: see the Daily Stars article about getting a massive pervy eyeful of [a celebritys] pert ass, or the Sports article Jugs and Jury. All three contained large scale advertisements for pornography and/or escort services. And all three included articles which appeared to eroticise violence against women. This final category of article was forcefully criticised by the End Violence Against Women Coalition and Eaves Housing who both argued that there was a tendency in parts of the press to trivialise and/or sexualise violence against women.368 One of the examples identified from The Sun was an article entitled Bodyguards for battered Towie sisters reporting acts of serious violence upon two sisters, accompanied by a picture of one of them in an erotic pose in her underwear.369 A similar example from the Sport was an article, adjacent to a photograph of a large breasted, topless model, about a man who had committed a sexual offence by groping a womans breasts.370 A further example from the Sport involved a comment piece expressing the writers desire to have sex with a celebrity, but joking that the only way that would happen was if he raped her.371 Many more examples were made available to the Inquiry.372 The evidence as a whole suggested that there is force in the trenchant views expressed by the groups and organisations who testified to the Inquiry that the Page 3 tabloid press often failed to show consistent respect for the dignity and equality of women generally, and that there was a tendency to sexualise and demean women. That failure is particularly clear in the pages of the Sport, which is, in my view, hardly distinguishable from the admittedly softer end of top-shelf pornography. But it exists to a lesser degree in the Daily Star and The Sun. For The Sun, at least, it is a failure of consistency, rather than a general failure to show respect for women. The Sun has campaigned admirably against domestic violence, rape, and size zero models.373 But it is clear that those campaigns have, perhaps uncomfortably, sat alongside demeaning and sexualising representations of women.
8.17
F
8.18
pp 5-19, http://www.object.org.uk/files/The%20Leveson%20inquiry%20-%20OBJECT%20and%20Turn%20Your%20 Back%20on%20Page%203%20Joint%20Submission(3).pdf 368 The Inquiry noted that the evidence suggested that this tendency was not limited to the Page 3 tabloids, but on the evidence as a whole concluded that a broad criticism relating to the representation of women could not be sustained against other newspapers 369 The Sun, example 12, http://www.object.org.uk/files/The%20Leveson%20inquiry%20-%20OBJECT%20and%20 Turn%20Your%20Back%20on%20Page%203%20Joint%20Submission(3).pdf 370 The Sport, example 17, http://www.object.org.uk/files/The%20Leveson%20inquiry%20-%20OBJECT%20and%20 Turn%20Your%20Back%20on%20Page%203%20Joint%20Submission(3).pdf 371 The Sport, example 8, http://www.object.org.uk/files/The%20Leveson%20inquiry%20-%20OBJECT%20and%20 Turn%20Your%20Back%20on%20Page%203%20Joint%20Submission(3).pdf 372 See http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Heather-Harvey.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/End-Violence-Against-Women-Coalition-Submission. pdf 373 pp1-2, paras 12-19, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statementof-Dominic-Mohan1.pdf
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8.19
Importantly, these criticisms of the Page 3 tabloids do not derive from the fact those newspapers contain an image of a topless woman on Page 3 (or not only from that fact). They are criticisms for which evidence can be found on a reading of all the pages in those newspapers as a whole. They are also supported by the response that the tabloids have made to those who have criticised Page 3. When Clare Short MP campaigned against Page 3 in the 1980s she was described by The Sun as fat, ugly and jealous of beautiful women.374 When the Rt Hon Harriet Harman proposed legislation to ban Page 3 in 2010, she was described as a harridan and a feminist fanatic on a furious rant.375 Similarly, when ex-Equalities Minister Lynne Featherstone MP raised the issue in Government, she was described as a battleaxe and her proposal to limit childrens ability to purchase newspapers containing topless women was described as a potty plan.376 Describing the female critics of Page 3 as fat, ugly, jealous, feminist fanatics, harridans, and battleaxes goes some way to proving their point. Thus far, these criticisms have been considered at a level of some abstraction; it remains necessary to bring the debate back to the terms of the Code, and to the considerations foreshadowed in the introductory observations to this section. The article, Bodyguards for Battered Towie Sisters may well infringe clause 12 of the Code as currently drafted, but the majority of the material discussed under this sub-heading probably does not. The impact of discriminatory or prejudicial representations of women in the Page 3 tabloids is difficult to judge. There is credible evidence that it has a broader impact on the perception and role of women in society, and the sexualisation of society generally,377 although submissions from Sunday Sport (2011) Ltd refer to the range of academic opinion on the issue. Suffice to say, that this Inquiry is not the place to analyse, let alone reach conclusions on these matters. That said, these are important and sensitive issues which merit further consideration by any new regulator. What is clearly required is that any such regulator has the power to take complaints from representative womens groups. Consideration should also be given to Code amendments which, while protecting freedom of speech and the freedom of the press, would equip that body with the power to intervene in cases of allegedly discriminatory reporting and in so doing reflect the spirit of equalities legislation.
8.20
8.21
8.22
Representation of minorities
8.23 The Inquiry received a range of submissions from minority groups, as well as individuals raising similar points on behalf of groups; the full range of these submissions is available on the Inquiry website. Of necessity, the summary below draws on a selection of the submissions that were received, but the points will be equally relevant to many of the others who wrote in and, indeed, many other groups who did not take the opportunity to do so.
http://www.object.org.uk/files/Exhibit%2011a.pdf http://www.object.org.uk/files/Exhibit%2012.pdf 376 http://www.object.org.uk/files/Exhibit%2014.pdf 377 See Theme 1 of the Bailey Review: Letting Children Be Children: the Report of an Independent Review of the Commercialisation and Sexualisation of Childhood, https://www.education.gov.uk/publications/standard/ publicationDetail/Page1/CM%208078
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Transgender 8.24 Trans Media Watch (TMW) provided evidence to the Inquiry of disturbing and intrusive reporting of transgender and intersex issues by parts of the press.378 They wrote:379 The media and the tabloid press in particular has played a powerful role in creating and sustaining a climate of prejudice against transgender people. Worse instances in which the tabloid press has created situations in which very vulnerable people (including transgender children) are monstered and face public abuse or the threat of violence are not hard to find. Nor is it difficult to discover stories in which transgender people have had their privacy shamelessly invaded, personal details that could place them in grave danger revealed (either unethically or even illegally), or lies circulated about them by the press. Entirely innocent individuals have been forced out of jobs and homes, even received death threats, on the basis of coverage in the British press. Whilst an occasionally more sympathetic piece might appear, in a human interest setting, the tabloid press (especially) has consistently expressed almost no interest in behaving with human decency towards transgender people. 8.25 The organisation said that the tabloid press in particular tended to fit stories about transgender issues within one of three categories: trans as fraud, trans as undeserving and trans as deviant and deserving of parody. To that list might be added the outing of transgender people. TMW provided to the Inquiry many examples of these kinds of stories. Within this report it is possible to refer to only a few, but the examples which follow are by no means aberrations. Within the categories trans as fraud and trans as undeserving was an article published in the Daily Express and titled Half Man Gets New Breasts (and guess whos paying 78k). TMW said the article was not only inaccurate (the cost of gender reconstruction surgery is nowhere near as high as 78k), but it was also part of a narrative adopted by much of the tabloid press presenting transgender people as undeserving frauds using public money for illegitimate means.380 An article with a similar theme was exhibited from The Sun entitled Operation Sex Swap: MOD paying for troops gender surgery.381 Within the category trans as deviant and deserving of parody, TMW highlighted The Suns Tran or Woman quiz, where readers were provided with a series of photographs and asked to guess whether the subject was transgender or not.382 It further highlighted a tendency for the tabloid press to use comedic, demeaning or ridiculing language in stories about transgender people. Examples were The Suns use of genital-based puns in the headlines Dad of two driver changes gear in sex swap,383 and The Scottish Suns Sex swap mechanic goes nuts at medics384 or the use of derogatory words such as tranny. In respect of the Daily Mail, TMW noted its tendency to report on transgender people as though the category were false or unreal: it frequently used inverted commas around the words transgender people, and referred to transgender women as men and transgender men as women.385
F
8.26
8.27
http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-Trans-Media-Watch.pdf; http:// www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Supplemental-Submission-by-Transmedia-Watch1.pdf 379 p7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-Trans-Media-Watch.pdf 380 pp15-16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-Trans-Media-Watch.pdf 381 p21, ibid 382 p14, ibid 383 p12, ibid 384 p13, ibid 385 p17, ibid
378
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8.28
The final category the outing of transgender people was perhaps the most disturbing, given the very damaging effect this can have on individuals. Helen Belcher of TMW told the Inquiry that The Suns Dad of two driver changes gear in sex swap story was written without permission and without reference to the subject of the story. The photograph was similarly published without permission. Ms Belcher said:386 The piece was rewritten so it looked as though the subject had colluded with the Sun. The first the subject knew was when the Sun published it. It caused her immense distress. It also caused her children huge distress, because they thought that she had sold her story or was behind her story in some way, and she had nothing to do with the story whatsoever. It is a pure expose. There is no public interest.
8.29
Two further examples were referred to in TMWs second submission. First, on 12 February 2012, The Sun had revealed the story of (allegedly) the UKs first transgender male to give birth.387 Faced with an unwillingness (or inability) of transgender groups to identify the man, The Sun chose to publish a call for the public to identify the person concerned and offered a reward for information. Eventually, once identified, the individual was door-stepped by a journalist.388 The Sun published stories revealing his identity, and other newspapers, including the Daily Mail, published comment pieces about the freakish and revolting thought of a man giving birth.389 Second, on 20 February 2012, the Daily Mail published a story about a five year old child who had been diagnosed with Gender Identity Disorder. There was perhaps a public interest in the story itself, but included within the story was also the childs name, date and place of birth, birth certificate, photographs of the child and the name of the school and hospital she attended.390 It was unclear what form of consent was received to publish the story, but it seems inconceivable that the childs parents would have granted consent for what followed. In several follow-up articles, the Daily Mail criticised the childs misguided parents for their nonsense in allowing the child to be diagnosed with a disorder, criticised the school for profligate spending of resources to provide a gender neutral toilet in the childs school, and used the childs case (and photographs) as an example to debunk the politically correct rise of an industry which encourages trans-sexualism.391 The critical comments made in the follow-up pieces, although on occasion uninformed and potentially misleading, might well have been justified as fair comment on a matter of public interest. However, in the context, they were comment pieces which were directly related to an identified, photographed and vulnerable child. Each piece republished the same large photographs of the five year old as part of the article, and the impact of the reporting as a whole may well have been tremendously damaging. As TMW noted:392
8.30
8.31
pp47-48, lines 20-10, Helen Belcher, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-8-February-2012.pdf 387 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Supplemental-Submission-by-TransmediaWatch1.pdf 388 p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Supplemental-Submission-by-TransmediaWatch1.pdf 389 pp9-11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Supplemental-Submission-byTransmedia-Watch1.pdf 390 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Supplemental-Submission-by-TransmediaWatch1.pdf 391 pp16-24, ibid 392 pp4-5, ibid
386
667
TMW recognises that many more children report gender variant episodes than turn out to be trans. However, when a child expresses a strong level of distress about their gender, severe psychological issues can result if left untreated. It is entirely possible that Z may decide as she grows older that she wishes to revert to being a boy. If that scenario does arise, the level of press exposure is likely to make that decision far harder to take. There is significant concern about giving someone like this so much exposure, especially when they are vulnerable. Paradoxically this is a concern that the press has also expressed, but their rush to publish seems to be paramount. 8.32 On the basis of the evidence seen by the Inquiry, it is clear that there is a marked tendency in a section of the press to fail to treat members of the transgender and intersex communities with sufficient dignity and respect; and in instances where individuals are identified either expressly or by necessary implication perpetrate breaches of clause 12 of the Code. Parts of the tabloid press continue to seek to out transgender people notwithstanding its prohibition in the Editors Code. And parts of the tabloid press continue to refer to the transgender community in derogatory terms, holding transgender people up for ridicule, or denying the legitimacy of their condition. Although the Inquiry heard evidence that parts of the tabloid press had raised [its] game in terms of transgender reporting,393 the examples provided by TMW of stories from the last year demonstrate that the game needs to be raised significantly higher. The press has shown itself quite capable of doing so: 30 years ago, an Inquiry into the culture practices and ethics of the press was likely to have seen a deluge of complaints relating to the representation of homosexuals in the press.394 The fact that only a very few such complaints were received by this Inquiry may reflect the presss ability to put its own house in order. Alternatively, it may simply reflect that society had changed and the press has been forced to keep up. Ethnic minorities, immigrants and asylum seekers 8.34 It seems that a raising of the game is also required in relation to the representation of some ethnic minorities, immigrants and asylum seekers. The Joint Council for the Welfare of Immigrants drew the Inquirys attention to a recent report from the Council of Europes Commission on Racism and Intolerance, which stated:395 [ECRI] notes with concern that Muslims, migrants and asylum seekers Gypsies/ Travellers are regularly presented in a negative light in the mainstream media, and in particular the tabloid press, where they are frequently portrayed, for example, as being by definition associated with terrorism, sponging off British society, making bogus claims for protection or being troublemakers. ECRI is concerned... [about] the racist and xenophobic messages themselves that are thus propagated in the media... 8.35 This conclusion, and in particular, the identification of Muslims, migrants, asylum seekers and gypsies/travellers as the targets of press hostility and/or xenophobia in the press, was supported by the evidence seen by the Inquiry.
8.33
pp128-129, lines 11-11, Dominic Mohan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/ Transcript-of-Afternoon-Hearing-7-February-2012.pdf 394 p27, lines 12-25, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-28-May-2012.pdf; 395 The Treatment of Asylum Seekers Tenth Report of Session 2006-07, quoted at para 1, http://www.levesoninquiry. org.uk/wp-content/uploads/2012/03/Submission-by-Joint-Council-for-the-Welfare-of-Immigrants.pdf
393
668
8.36
In relation to alleged discrimination of Muslims, the Muslim advocacy group ENGAGE shared its concern that the last decade had seen, within parts of the tabloid press, an increase in Islamophobic and discriminatory coverage of Muslim issues. It drew the Inquirys attention to numerous headlines referring to Muslims, or Muslim practices, in alarmist and sensational terms. It noted, amongst others, the following headlines, which appeared to have little factual basis but which may have contributed to a negative perception of Muslims in the UK: Muslim Schools Ban Our Culture; BBC Puts Muslims Before You!; Christmas is Banned: It Offends Muslims; Brit Kids Forced to Eat Halal School Dinners!; Muslims Tell Us How To Run Our Schools.396 The organisation submitted to the Inquiry a summary of some of its complaints to the PCC since December 2007 relating to inflammatory and inaccurate reporting. The articles of which Engage had complained included: (a) a Daily Star article entitled Poppies banned in Terror Hotspots, which suggested that a ban on the sale of Remembrance Day poppies had been imposed in certain Muslim populated areas, where no such ban existed.397 A Daily Star article entitled Muslim only public loos, which suggested that a local authority planned to build new public toilets, with taxpayer money, for the exclusive use of Muslims, when this was a simple fiction.398 A Daily Express article entitled Muslim plot to kill the pope, which reported on a nonexistent plot.399 A Daily Mail article entitled Cafe wins fight to fry bacon after Muslim complaints which implied that complaints to a local authority which had sparked enforcement action by planning officers had been made by Muslims, when that was not the case.400
8.37
(b)
(c) (d)
8.38
ENGAGE also drew the Inquirys attention to complaints made by others to the PCC in relation to articles alleged to be discriminatory or inaccurate in their reporting of Muslim issues. Those complaints included: (a) A complaint from ummah.com in relation to an article in The Sun alleging a Muslim plot to kill prominent British Jews. The basis of the article was an apparently extremist posting on the ummah.com website. Investigations revealed that the posting had in fact been fabricated by The Suns anti-terror expert and the story had no basis whatsoever.401 A complaint from the Ummah Welfare Trust, an international relief and development charity, in relation to a Daily Express article alleging connections between the charity and terrorist organisations on the UNs proscribed list. There were no such connections.402
(b)
pp33-34, para 36, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Submission-by-Engage. pdf 397 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/First-Submission-by-Engage.pdf. The editor of the Daily Star was asked about a similar article which related to the burning of poppies; p65, lines 6-13, Dawn Neesom, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning-Hearing-12-January-2012.pdf; and other articles in a similar tone. She denied that the paper had an anti-Muslim agenda. 398 p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/First-Submission-by-Engage.pdf . The PCC upheld a complaint in relation to this article. 399 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/First-Submission-by-Engage.pdf 400 pp3-4, ibid 401 pp4-5 ibid 402 p4, ibid
396
669
8.39
ENGAGEs representative, Inayat Bunglawala, was of the view that the articles complained of had the cumulative effect of increasing prejudice against Muslims. However, he went further: his view was that the headlines identified, and the decisions to place those articles on the front page of the newspapers, were deliberate, and were intended deliberately to increase such prejudice.403 He indicated that many of the headlines had been used by the far right to further its racist propaganda.404 The Daily Telegraphs Peter Oborne shared some of these concerns. His pamphlet Muslims Under Siege was instructive.405 It recalled a story published in The Sun with the headline Brave Heroes Hounded Out which told how Muslim yobs had wrecked a house to prevent British soldiers returning from Afghanistan from moving in. In his pamphlet, Mr Oborne noted that millions of Sun readers reading the article would have felt justified anger and contempt for the violent and treacherous Muslims who had carried out such a disloyal act against brave British soldiers. But there was one very big problem with the Sun story there was no Muslim involvement of any kind. The pamphlet continued:406 What the Sun had done was to take a local story about a piece of vandalism, probably caused by local snobbery about the presence of soldiers and convert it into another kind of story altogether about evil Muslims. This case is far from unique. As we discovered while researching this pamphlet, is in fact typical of reporting of the Muslim communities across large parts of the mainstream British media.
8.40
8.41
Suleman Nagdi MBE, representing the Federation of Muslim Organisations, considered that certain tabloid papers have reported on issues concerning Muslims with a lack of accountability which has resulted in a climate of hostility in both the reporters and the readership.407 He thought that some articles were explicitly discriminatory, but drew the Inquirys attention to the conclusions of a study published by Paul Baker of Lancaster University entitled The Representation of Muslims in the British Press 1998-2009. This concluded:408 More common than the expressly negative representation of Muslims, was a more subtle set of implicitly negative representations, with Muslims often being collectivised via homogenising terms like Muslim world and written about predominantly in contexts to do with conflict, terrorism and extremism.
8.42
Other academic research seen by the Inquiry supports that view. In its briefing note for the All Party Parliamentary Group on Islamophobia, ENGAGE drew attention to a report by the Cardiff School of Journalism, Media and Cultural Studies which had reviewed the representation of British Muslims in the press between 2000 2008.409 That report concluded:410 In sum, we found that the bulk of coverage of British Muslims around two thirds focuses on Muslims as a threat (in relation to terrorism), a problem (in terms of differences in values) or both (Muslim extremism in general).
p34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Submission-by-Engage.pdf pp2-3, lines 21-10, Inayat Bunglawala, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Afternoon-Hearing-24-January-2012.pdf 405 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-PO1-to-Witness-Statement-of-PeterOborne.pdf 406 p13, ibid 407 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-Suleman-Nadgdi-MBE-DIL.pdf 408 p2, ibid 409 Moore K, Lewis P, Lewis J, Images of Islam in the UK: The Representation of British Muslims in the National Print News Media 2000-2008: http://www.irr.org.uk/pdf/media_muslims.pdf 410 p3, http://www.irr.org.uk/pdf/media_muslims.pdf
404
403
670
The language used about British Muslims reflects the negative or problematic contexts in which they tend to appear. Four of the five most common discourses used about Muslims in the British press associate Islam/Muslims with threats, problems or in opposition to dominant British values. So, for example, the idea that Islam is dangerous, backward or irrational is present in 26% of stories. By contrast, only 2% of stories contained the proposition that Muslims supported dominant moral values. Similarly, we found that the most common nouns used in relation to British Muslims were terrorist, extremist, Islamist, suicide bomber and militant, with very few positive nouns (such as scholar) used. The most common adjectives used were radical, fanatical, fundamentalist, extremist and militant. Indeed, references to radical Muslims outnumber references to moderate Muslims by 17 to one. 8.43 Mr Peppiatt suggested that this type of unbalanced reporting was motivated by circulation. One of the keys reasons he cited for resigning from the Daily Star was what he perceived as its Islamophobic agenda. He said that he experienced a top down pressure to unearth stories which fit within what was described as the Daily Stars narrative (immigrants are taking over, Muslims are a threat to security); the factual basis for a story was less important than that narrative. Mr Peppiatt said he was personally responsible for writing the fictional Muslim only public loos story. Although the newspaper was aware that the story was not true, an editorial decision was taken to publish anyway. Similarly, Mr Peppiatt described an article he wrote on plans to require Sikhs to remove their turbans at airport security, for fear that Islamic terrorists might disguise themselves as Sikhs. There was no factual basis for that story either, but Mr Peppiatt invented quotes from a security source to lend an air of credibility.411 The overall picture is more nuanced than witnesses such as Mr Peppiatt have been prepared to accept. The Daily Star submitted a lever arch file containing a bundle of what it described were pro-Muslim articles; although I would not necessarily agree with that precise designation, the broad sentiment is wholly accurate. Here, a quantitative assessment is inappropriate; the Inquiry could not begin to reach judgments as to the proportion of pro-Muslim against anti-Muslim pieces. In any event, that would be to miss the point. It is not as if the pro articles somehow cancel out or fall to be weighed in the balance against the anti: the real point is whether articles unfairly representing Muslims in a negative light are appropriate in a mature democracy which respects both freedom of expression and the right of individuals not to face discrimination. The evidence demonstrates that sections of the press betray a tendency, which is far from being universal or even preponderant, to portray Muslims in a negative light. As with the case of discrimination against women discussed above, issues arise in relation to the interpretation and application of clause 12 of the Editors Code, and the arguable need to identify an individual target of discrimination, but the key point which falls to be made in the present context is the need for a regulator with the ability and power to grapple with these issues and set appropriate standards. The tendency identified in the preceding paragraph is not limited to the representation of Muslims and applies in a similar way to some other minority ethnic groups. The Joint Council on the Welfare of Immigrants, the Migrant and Refugee Communities Forum, and the Federation of Poles in Great Britain gave evidence that supported and complemented each other. Together, their evidence suggested that the approach of parts of the press to
8.44
8.45
8.46
pp17-20, lines 25-4 & pp32-38, lines 7-20; Richard Peppiatt, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Transcript-of-Morning-Hearing-29-November-2011.pdf
411
671
migrants and asylum seekers was one of advocacy rather than reporting: some newspapers expressed a consistently clear view on the harm caused by migrants and/or asylum seekers (often conflating the two) and ensured that any coverage of the issue fit within that narrative. 8.47 It is unquestionably right that, in relation to inherently political questions like immigration and asylum, editors and journalists are entitled to express their strongly held views in their newspapers. However, the concerns raised by the various witnesses were not limited to the expression of views, but included allegations of wilful blindness to the (lack of) truth of stories which fit with a newspapers adopted viewpoint. Stories which are factually incorrect clearly raise issues under clause 1 of the Code regardless of clause 12. The organisations drew the Inquirys attention to the follow as examples: (a) The Suns story headlined Swan Bake, which alleged that gangs of Eastern European asylum seekers were killing and eating swans from ponds and lakes in London. Unidentified people were cited as witnesses to the phenomenon, but it seemed there was no basis to the story: the Sun was unable to defend the article against a PCC complaint.412 The Daily Stars article headlined Asylum seekers eat our donkeys. The story told of the disappearance of nine donkeys from Greenwich Royal Park. The police were reported as having no idea what had happened to the donkeys but, in a piece of total speculation, the story went on to claim that donkey meat was a speciality in Somalia and Eastern Europe, that there were large numbers of Somalian asylum-seekers in the area and some Albanians nearby, and concluded that asylum seekers had eaten the donkeys.413 The Daily Mails erroneous report that a judge had allowed an immigrant to remain in the UK because the right to family life protected his relationship with his cat.414
(b)
F
8.48
(c)
It is one thing for a newspaper to take the view that immigration should be reduced, or that the asylum and/or human rights system should be reformed, and to report on true stories which support those political views. It is another thing to misreport stories either wilfully or reckless as to their truth or accuracy, in order to ensure that they support those political views. And it does appear that certain parts of the press do, on occasion, prioritise the political stance of the title over the accuracy of the story. Ms Stanistreet, on behalf of the NUJ, gave evidence as follows:415 Journalists that I spoke to in the course of collating this testimony painted a disturbing picture of the nature of the day to day sentiments expressed by senior editorial staffsuch comments give an insight into the approach taken on coverage of race and ethnicity. These included a reporter being told by the news editor to write a story about Britain being flooded by asylum-seeking bummers; instructions to make stories as right wing as you can; a reporter being told to go out and find Muslim women to photograph with the instruction: Just fucking do it. Wrap yourself around a group of women in burkas for a photo.
p7, ibid p7, ibid 414 pp2-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Submission-by-Joint-Council-for-theWelfare-of-Immigrants.pdf 415 p7, para 19-20, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statement-ofMichelle-Stanistreet.pdf
413
412
672
8.49
Although the weight to be given to this anonymous evidence is necessarily limited, it coheres with the evidence given by Mr Peppiatt and Mr Oborne, and is consistent with the kinds of complaints made by the Joint Council on the Welfare of Immigrants, the Migrant and Refugee Communities Forum, the Federation of Poles in Great Britain, ENGAGE and Mr Nagdi. That evidence suggested that, in relation to reporting on Muslims, immigrants and asylum seekers, there was a tendency for some titles to adopt a sensationalist mode of reporting intended to support a world-view rather than to report a story. The evidence given by the Irish Traveller Movement in Britain suggested a similar approach to gypsy and traveller issues.416 It is important to reiterate that the evidence was not all bad: there were many examples of titles with responsible and positive reporting on these issues, and even within the section of the press identified for criticism, there was evidence showing a complicated picture. For example, although the Daily Mail has been criticised for its reporting of some minority issues, its Stephen Lawrence campaign demonstrated a newspaper committed to tackling and condemning racism. Nonetheless, when assessed as a whole, the evidence of discriminatory, sensational or unbalanced reporting in relation to ethnic minorities, immigrants and/or asylum seekers, is concerning. The press can have significant influence over community relations and the way in which parts of society perceive other parts. While newspapers are entitled to express strong views on minority issues, immigration and asylum, it is important that stories on those issues are accurate, and are not calculated to exacerbate community divisions or increase resentment. Although the majority of the press appear to discharge this responsibility with care, there are enough examples of careless or reckless reporting to conclude that discriminatory, sensational or unbalanced reporting in relation to ethnic minorities, immigrants and/or asylum seekers is a feature of journalistic practice in parts of the press, rather than an aberration. Overall, the evidence in relation to the representation of women and minorities suggests that there has been a significant tendency within the press which leads to the publication of prejudicial or pejorative references to race, religion, gender, sexual orientation or physical or mental illness or disability. Whether these publications have also amounted to breaches of the Editors Code in every case is debatable, but in the ultimate analysis is little to the point. That failure has, in the main, been limited to a section of the press and may well stem from an undue focus on seeking to reflect the views (even if unsuccessfully) of a particular readership. A new regulator will need to address these issues as a matter of priority, the first steps being to amend practice and the Code to permit third party complaints.
8.50
8.51
8.52
9. inaccuracy
9.1 It is not by accident that the Editors Code begins with a requirement for accuracy:417 it is the foundation stone on which journalism depends. For that reason, the extensive evidence heard by the Inquiry of problems with basic accuracy in parts of the press caused significant concern. In what follows, that evidence is considered in five parts. These are: (a)
416
evidence of deliberate invention and fabrication of stories by sections of the press, and/ or a failure to check the truth of invented stories;
http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-from-The-Irish-Traveller-MovementMarch-2012.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-from-The-IrishTraveller-Movement-April-20121.pdf 417 Clause 1(i) of the PCC Code requires the press to take care not to publish inaccurate, misleading or distorted information, including pictures.
673
(b) (c) (d) (e) 9.2
evidence of deliberately misleading headlines; evidence of careless or reckless inaccuracy in particular when reporting fast moving and high profile stories; evidence of a tendency for sections of the press to report political and social issues inaccurately in order to fit into the worldview of the title; and evidence that scientific stories are reported poorly and often inaccurately by much of the press.
It is important to note that it is inevitable that inaccuracies will appear in newspapers, given the quantity of stories published and the speed at which they need to be written. It is also inevitable that some stories will be defamatory. But what is not inevitable is that the inaccuracies or defamations will be deliberate or the result of reckless or careless journalism. The Inquiry heard many examples of inaccuracies in the press, and sometimes damaging inaccuracies which had led to successful defamation claims and serious criticism of the newspapers involved.418 Although consideration was given to basing criticisms in this Report upon some of those examples, I decided that it would be unjustified to do so. Unless the examples of inaccuracy manifestly fell into the categories of deliberate, reckless or careless inaccuracy, they have not been included in what follows. The Inquiry has been told by a number of witnesses that the majority of inaccuracy complaints to the PCC emanate from the regional press. As has been explained elsewhere, that section of the press has been expressly excluded from the generic criticisms which form this lengthy Chapter of the Report. But there is no inconsistency here: the point has already been made that mistakes are inevitable in any industry which depends on the judgments of human beings, and the problems deriving from the regional press are not in my view cultural or systemic. No one has suggested to the Inquiry that they are indeed, many have suggested affirmatively that they are not and on the available evidence I am happy to endorse that conclusion.
9.3
Fabrication or deliberate embellishment of stories

9.4 The Inquiry heard sufficient evidence to conclude that some sections of the press have deliberately invented stories with no factual basis in order to satisfy the demands of a readership. Mr Peppiatt spoke of his experience while a journalist at the Daily Star of a topdown pressure to fabricate stories. As noted above, he gave numerous examples of Daily Star stories about celebrities and about Muslim issues that were published despite the knowledge that they were untrue.419 In his resignation letter, he had written:420 Daily Star favourite Kelly Brook recently said in an interview: I do Google myself. Not that often, though, and the stories are always rubbish. There was a story that Id seen a hypnotherapist to help me cut down on the time I take to get ready to go out. Where do they get it from?
p7, para 24-25, p12, para 41, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/SupplementalWitness-Statement-of-Heather-Mills.pdf; p2, para 1012, p4, para 16-20, p6, para 25, http://www.levesoninquiry. org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Sheryl-Gascoigne.pdf; p5, para 18-20, http://www. levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Steve-Coogan3.pdf; pp5-9, lines 25-24, Jon Snow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-Afternoon-Hearing-25June-2012.pdf; p24, lines 15-25, Peter Burden, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Transcript-of-Afternoon-Hearing-5-December-2011.pdf; 419 p1, para 49, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-RichardPeppiatt.pdf 420 http://www.guardian.co.uk/media/2011/mar/04/daily-star-reporter-letter-full
418
674
Maybe I should answer that one. I made it up. Not that it was my choice; I was told to. At 6pm and staring at a blank page I simply plucked it from my arse. Not that it was all bad. I pocketed a 150 bonus. You may have read some of my other earthshattering exclusives. Michael Jackson to attend Jade Goodys funeral. (He didnt.) Robbie pops pill at heroes concert. (He didnt either.) Matt Lucas on suicide watch. (He wasnt.) Jordan turns to Buddha. (She might have, but I doubt it.) 9.5 In his evidence to the Inquiry he confirmed his view that much of tabloid journalism was not a truth seeking enterprise, but was instead ideologically driven and impact-driven.421 In that context, fictional stories were not only relatively commonplace, but were actively encouraged by senior staff within the title. In oral evidence Mr Peppiatt gave further examples of fictional stories published by the Daily Star as follows:422 Chile mine to open as theme park, Angelina Jolie to play Susan Boyle in film, Bubbles to give evidence at Jacko trial thats his monkey Jades back in Big Brother she was dead at the time. Obviously we have the likes of Maddies body stored in freezer, which weve heard already. Grand Theft Auto Rothbury that was the Raoul Moat killing. There was going to be a computer game based around it. Completely untrue. Brittany Murphy killed by swine flu wasnt the case. Macca versus Mucka on ice, which was Paul McCartney and his ex-wife were apparently going to showdown on Dancing on Ice. Never transpired. Then we have the likes of Muslim-only public loos, which in my letter I raise. Completely untrue as well. 9.6 Although Mr Peppiatts evidence was challenged by the Daily Star and a number of witnesses said that they did not recognise what he had described, it was consistent with the anonymous evidence reported by Steve Turner of the British Association of Journalists: he had received complaints from a number of other journalists who had reported similar editorial pressure to fabricate stories, sometimes under threat of dismissal.423 The evidence of Sharon Marshall is consistent with that of Mr Peppiatt. Not only did she suggest that quotations were routinely made up but also that it was common practice in some of the papers on which she worked for journalists to fabricate quotations to push a particular line with regard to a story and then find a willing contact to own the quote. She provides the specific example of the model and TV presenter, Abi Titmuss, who was one of a number of celebrities called to see if they would own a quotation that had been written to push a particular point of view or story.424 Further, a willingness by parts of the press to fabricate in order to tell an impactful story was also evidenced by Piers Morgans admission to have altered a photograph digitally to show Princess Diana and Dodi al-Fayed kissing, when the original showed nothing of the sort.425 The Inquiry heard evidence from a number of witnesses who had been victims of fabricated stories. Mr Grant exhibited an article in the Sunday Express, apparently written by Mr Grant himself. In fact, it was entirely fabricated: Mr Grant had not only not written the article, but
9.7
p11, lines 1-5, Richard Peppiatt, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-29-November-2011.pdf 422 p17, lines 9-22, ibid 423 para 33, 36, 39, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-SteveTurner.pdf 424 p112-113, Sharon Marshall, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-20-December-2011.pdf [NB: Miss Titmuss was not named in the course of the hearing] 425 p94, lines 5-17, Sharon Marshall, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-20-December-2011.pdf
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he had given no interview to the Sunday Express.426 In a similar example, Hello! Magazine published an exclusive interview with Ms Rowling, when no such interview had been given and when in fact Ms Rowling had expressly refused to give an interview to them.427 Unsurprisingly, in each example the relevant title was forced to apologise in open court. 9.8 Mr Campbell complained of numerous fabricated stories about him and about matters in Government generally. In respect of one particular example he said:428 I can recall one weekend being interrupted by persistent calls from reporters following up a story in the Sunday Express that I was leaving Downing Street to take up a position at Manchester United. This was based on so-called quotes from socalled friends and colleagues. I called the newspaper which had not put the story to me in advance to complain and to issue a strong denial. I said there was no truth in it whatsoever. I know, came the response. But its a good story. They knew the story was untrue, so did not put it to me because a denial would weaken it 9.9 The erroneous report in the Mail Online of the Amanda Knox guilty verdict is a different example. Prior to the verdict being read out, the Mail had prepared two set and hold versions of a story, to prepare for both a guilty and not guilty verdict; that much is not surprising. Through human error, the guilty verdict story was published online. That error was also made by The Sun online and the Guardian online and, again, such error is, at times, unavoidable. The Mails story, however, was unique in that it described, in detail, events that simply did not happen. Full Fact, an organisation dedicated to monitoring accuracy in the press, explained to the Inquiry:429 Amanda Knox was found not guilty of murder. Before that was announced, though, a verdict of guilty was given in relation to a charge of slander. As soon as the first guilty was pronounced, the Daily Mail published an online article headlined: Guilty: Amanda Knox looks stunned as appeal against murder conviction is rejected. The first part was mistaken; the second part was fiction. The fiction continued in the text, including: As Knox realized the enormity of what Judge Hellman was saying she sank into her chair sobbing uncontrollably while her family and friends hugged each other in tears and Prosecutors were delighted with the verdict and said that justice has been done although they said on a human factor it was sad two young people would be spending years in jail. 9.10 The Mails explanation given by counsel during the course of the Inquiry was that that the story was not fabricated; it claimed to have obtained alternative quotes from the Italian prosecutors in advance to cover guilty or not guilty verdicts. Whether prosecutors provided quotes for publication in advance or not, there can be no argument that the description of events in the courtroom when the guilty verdict was read out was anything other than fictitious licence. True it is that the fabrication only added colour and emotion to the story, but the example raises questions of how widespread that practice is, and how frequently the adding of colour goes unnoticed.
pp9-10, lines 25 18, Hugh Grant, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-21-November-2011.pdf 427 p29, para 63, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-JK-Rowling2. pdf 428 p27, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Alastair-Campbell.pdf 429 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Third-Submission-by-Full-Fact.pdf
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Mr Campbell, along with Mr Grant and others, expressed their concerns of a growing reliance, within parts of the press, on anonymous quotes, many of which they believed to be entirely fabricated.430 That there has been regular misuse of attribution to anonymous sources seems clear in light of the phone hacking revelations. Many of the stories published by the NoTW, now known to be based on phone hacking, were attributed to anonymous sources such as friends or pals or sources. Mr Peppiatt confirmed that in his experience, many quotes attributed to a source, a friend, a pal were indeed invented. He gave examples of quotes he had invented to support fictional stories about Katie Price, and said:431 Although unnamed sources are a valuable journalistic tool to protect sources, often in my experience of tabloids they are simply made up by the reporter to increase the word count and add a veneer of legitimacy to something that is speculation, at best.
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There is no easy-fix for this problem. The anonymity of confidential sources is a vital aspect of journalism and must be protected. But the use of anonymous sources can lead to an inability to assess whether the source is reliable, or even exists. Solicitor Magnus Boyd raised this concern in relation to a Daily Mail story about one of his clients, the Tamil hunger striker Parameswaran Subramanyam. The Mails story alleged that Mr Subramanyam had sustained himself with McDonalds hamburgers during his hunger strike and quoted an anonymous police insider and a source saying that police surveillance cameras had captured him eating the hamburgers. The story, it transpired, was entirely untrue: there was no police surveillance, there was no consumption of hamburgers and the Mail paid substantial damages for defamation.432 In relation to the police sources quoted in the article, Mr Boyd noted:433 As a matter of logic there are only two possibilities which are either that: i a police source simply made up these allegations and communicated them to The Daily Mail; or
ii The Daily Mail made up the police sources. 9.13 To that, one might add a third possibility, that there was a source, but it was not a police insider, as claimed, and that description of the source was given to lend greater credibility to the story. The reality is that it is impossible to know which of those three possibilities is correct. The journalist responsible, Stephen Wright, insisted that there was a source for each of the quotations in the article,434 but given the evidence seen by the Inquiry of invented sources and fabricated quotations, it is simply a question of having to be prepared to take his word for it.435 The very nature of this problem renders it close to impossible to express any generic conclusions about it; or, more precisely, conclusions based on evidence as opposed to informed speculation. There will be many instances where for very good reason a journalist
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p26, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Alastair-Campbell.pdf p69, lines 13-22, Richard Peppiatt, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-21-November-2011.pdf 432 p1, para 1-5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-MagnusBoyd-taken-as-read.pdf 433 p3, para 6, ibid 434 pp30-31, lines 19-20, Stephen Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-15-March-20121.pdf 435 Mr Wright has indicated to the Inquiry in correspondence subsequent to the conclusion of the Inquirys evidence gathering phase that the story was based on conversations with one police source and one source from the London Ambulance Service.
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will not wish to reveal the identity of his or her source. Indeed, it is possible to go further: to do so would break a confidence. But in many other instances, it is inevitable that there should be real concern that the invocation of an anonymous or confidential source is likely to be a camouflage for a source who does not exist, or one who is known or suspected to be unreliable, or one in respect of whom inadequate enquiry is made by the journalist. 9.15 An informed member of the public may harbour his or her suspicions or concerns about these matters, but will never know the true position if the journalist does not choose to disclose the very information which would enable a judgment to be made about it. The very substantial privileges accorded to journalists in this regard by the European Convention and the common law are such that immense trust is being placed on the press to deploy their sources in the public interest rather than against it. There is a powerful public interest in readers being able to assess for themselves the evidence base for any assertion of fact or expression of opinion in a newspaper. Overall, the identification of the source or sources would go a long way to meeting what Professor Baroness ONeill has described as the public interest in assessibility; and that should be the default position, only to be displaced if the public interest in confidentiality requires it. It is likely, of course, that many of the fabricated stories published by parts of the press do come from genuine sources, but there is evidence that, in certain circumstances and at certain titles, checking the facts provided by a source is limited (if not slapdash) at best. Mr Peppiatts view was that some newspapers adopted a cavalier approach to checking facts provided by a source where the risk of litigation was assessed to be low, particularly in celebrity stories that were not damaging to reputations.436 Examples of that approach to celebrity reporting were provided by Mr Atkins, who had sold numerous fictional stories to newspapers during the making of his documentary Starsuckers. The stories, published by various tabloid newspapers despite the fact that the core of each story was fabricated, included: Avril Lavigne falling asleep and snoring in a nightclub; Amy Winehouse setting her hair on fire at a party; Guy Ritchie injuring himself while juggling cutlery in a restaurant; Pixie Geldof padding her bra out with sweets; and Sarah Harding owning a number of books on quantum physics.437 Two aspects of the evidence in relation to the stories stood out. First, two newspapers added their own fabrications to the already fabricated stories: in the Amy Winehouse story, the Daily Star added its own twist that a friend was called in and ended up punching Flamey Amys head to put out the blaze; in the Sarah Harding story, The Sun appeared to have invented a quote from a source that theres a lot more going on under that blonde barnet than Sarahs given credit for. Shes a smart cookie and does read an awful lot.438 Second, when The Suns Gordon Smart gave evidence in relation to two of the stories published by The Sun (the Guy Ritchie and Sarah Harding stories) he appeared unwilling to accept that The Sun had, in fact, published fiction. He seemed to suggest that the stories, invented by Mr Atkins in key respects, might have coincidentally been true. In addition, he seemed not to think that there was anything wrong with publishing fiction in a newspaper which purported
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p27, lines 16-24, Richard Peppiatt, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-29-November-2011.pdf 437 p4, paras 19-22, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-ChrisAtkins1.pdf 438 paras 19-22, ibid
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to be publishing fact. He appeared to suggest that it did not matter because the stories were insignificant and trivial.439 Perhaps that explains why the story about Ms Harding remains on The Suns website notwithstanding the clear evidence that it was fictional.440 9.21 It is of course correct that the stories were insignificant and were trivial. But that does not change the fact that they were fictional, while purporting to be true. Furthermore, although newspaper readers will accept that not every story they read is accurate (because mistakes can be made), that is not the same as saying that they would be as sanguine about stories that were known by those responsible for writing and publishing them to have been made up or deliberately exaggerated. In addition to the fact that fictional stories undermine the trust on which newspapers depend, part of their problem is that they very quickly become popular truth by virtue of repetition in other newspapers, blogs and websites. Ms Church gave an example of this. The People published an entirely fictional story about Ms Church drunkenly proposing marriage to her boyfriend while singing karaoke in a pub. Allegedly the story was provided to the People by a source, but the People chose to rely on that source alone without putting the story directly to Ms Church or her representatives441 and without even the most basic fact checking. In fact, Ms Church was, at the relevant time, performing in a completely different town with a large public audience and there was not even karaoke at the pub she was reported to have been in. Nonetheless, once published, the story was republished and rehashed in more than 70 outlets internationally and became true in the public mind at least.442 Mr Peppiatt described how an inaccurate article in one title can spread virally through others. In his experience fact checking was rarely carried out in relation to stories published in reputable titles or news agencies. In his written evidence he wrote:443 The majority of stories appearing in the Daily Star are sourced from the news wires or plagiarised from other newspapers, in particular the Daily Mail, which is such a heavy influence that for the most part it dictated the Daily Stars news agendA. In addition to the major news agencies such as Reuters, PA and Associated Press there are dozens of local agencies dotted around the country supplying content to the national press. Some of this content is lifted from local newspapers, or sourced from agency reporters own contacts One obvious consequence of reporters cannibalising the work of other journalists is that the former is often wholly unaware of the veracity of their information. Sometimes the maxim that a story is too good to check comes into play, and in this manner falsehoods can easily become propagated across the media. 9.24
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He developed this in oral evidence, saying:444
pp68-71, lines 4-10, Chris Atkins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-9-January-2012.pdf 440 http://www.thesun.co.uk/sol/homepage/showbiz/bizarre/2355241/Girls-Aloud-star-Sarah-Harding-reads-bookson-astronomy-and-quantum-physics.html; http://www.thesun.co.uk/sol/homepage/showbiz/bizarre/2338619/GeriHalliwell-steps-out-with-an-old-flame-Nick-House.html is this right? 441 Although her representatives were approached to comment on the nature of Ms Churchs relationship with her boyfriend, the specifics of the story were not put to them 442 p4, para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-CharlotteChurch.pdf; pp40-41, lines 10-19, Lloyd Embley, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Afternoon-Hearing-16-January-20121.pdf 443 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Richard-Peppiatt.pdf 444 pp10-11, lines 14-5, Richard Peppiatt, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Morning-Hearing-29-November-2011.pdf
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So as a journalist, you know, if I see a Daily Mail story Ive been given to rewrite in Daily Star style, you know, for me to then research where theyve got their information, and if I find out that in fact that information has been distorted or is inaccurate, for me to then approach the news desk and say, Actually, Ive found out this Daily Mail story is just not standing up, youd be sort of kicked back to your seat fairly robustly. You know, thats not the point. This is, you know: the Daily Mail said it; write it. 9.25 Again, I recognise that much of what Mr Peppiatt said was challenged and said to be unrecognisable. It is undeniable, however, that many of the allegations that he made have been exemplified in other evidence provided to the Inquiry.
Deliberately misleading headlines

9.26 A particular problem of inaccuracy identified in the evidence was the use of misleading headlines that misrepresented the content of the actual story. Mr Peppiatt described his experience at the Daily Star:445 Another ethically dubious technique used by the Daily Star (and other tabloids, if not to the same ridiculous degree) is the overplayed headlines that misrepresent the truth of the story beyond. It is such an endemic problem at the Daily Star that most days a comparison of the front page with the story inside is bordering on the comedic. One recent example claimed TV KING COWELL IS DEAD. The story inside was about him leaving X Factor. This behaviour is purely a cynical ploy to encourage consumers to purchase the Daily Star over rivals. Often lacking a real scoop to encourage this, they simply pretend to have one. Its a con, plain and simple. The Daily Express is no better at this. Particularly distasteful are their front page claims of miracle cures for cancer/Alzheimers/Parkinsons, which upon closer analysis are simply initial trials on mice, with many years of research ahead before they can even be considered medically sound. This type of misleading sensationalism deliberately plays on offering false hope to people whose lives have been affected by such illnesses, all in order to sell their papers 9.27 In addition to the Telly King Cowell is Dead story, the Inquiry saw further examples from the Daily Star. One story headed Terror As Plane Hits Ash Cloud was accompanied by an image of a burning jumbo jet. The story was in fact about a television programme which had simulated what might happen if a plane flew into a volcanic ash cloud, but the headline and picture were so alarming that copies of that edition of the Daily Star were removed from airports.446 Another example was an article headed, English Defence League to become political party. The story in fact included an interview with the leader of the EDL who was quoted as not ruling out becoming a political party, but expressed a clear preference not to do so.447 Other newspapers were also guilty of misleading headlines. The Daily Express headlined a report of a poll showing that 28 per cent of people supported quitting the EU with the headline 75 per cent say quit the EU now! Similarly, the Mail on Sunday published an article under the headline BBC turns its back on Year of Our Lord: 2,000 years of Christianity jettisoned
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p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Richard-Peppiatt.pdf pp51-57, lines 1-2, Dawn Neesom, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-12-January-2012.pdf 447 pp57-59, lines 3-1, ibid
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for politically correct Common Era, which noted, only in the final paragraph, that the BBC had in fact made no decision on the use of the terms BC, AD, BCE and CE, and had issued no guidelines on the matter.448 449 9.29 Evidence of the embellishment of headlines was not limited to the tabloid press: some broadsheets and celebrity magazines were shown to have adopted the practice as well. From the broadsheets, the Inquiry was shown a Daily Telegraph headline Children to be banned from blowing up balloons, under EU safety rules. Notwithstanding the headline, the article reported that there was to be no ban on balloons, merely the introduction of a requirement for balloons to carry a warning.450 In relation to celebrity magazines, the Inquiry was shown a ruling from the PCC in 2008 which highlighted the issue and provided the following summary:451 Readers Misled by Front Page Teasers The Commission has recently resolved a number of separate complaints from concerned readers complaining that magazine covers have promised content that does not correspond to the inside articles. There was the cover of Reveal magazine suggesting that an article contained comments from Victoria Beckham about her fitness regime. The story actually contained quotes from Melanie Brown, who had briefly referred to Mrs Beckham. In order to resolve the complaint, the editor telephoned the complainant, apologising for the confusion and offering her a subscription. Look magazine provoked a complaint about a front-cover image of Jennifer Anniston with the caption Im having a baby!. The subsequent article contained the claims that Ms Aniston was thinking about rather than confirmation that she was having a baby with her partner. The editor apologised to the complainant, undertaking to bear her comments in mind for future reference, and refunded the cost of the magazine. OK Magazine ran a front-page headline referring to the Star-studded wedding of Wayne and Coleen. Inside, there was just a full page advertisement for the wedding which was to be covered in the following weeks edition. The magazine indicated that it had not intended to mislead readers, and offered the complainant a six-month subscription. This issue does not only relate to celebrity articles. A problem occurred with Love It magazine, which used the following front-page headline to summarise an article: Locked up by my hubby and forced to eat. The husband complained, making clear that his wife was sectioned under the Mental Health Act via a process that was controlled by a consultant, a GP and other medical staff. The magazine settled the complaint, including by apologising to the complainant. Clearly, there is growing concern about the use of material on front covers. Magazine editors should be aware of this issue and act to ensure that readers are not misled by headline references to inside articles. The Commission may be asked to adjudicate on the matter, where it would be asked to consider whether the brief reference on the cover is justified by the content of the story itself.
p51, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Submission-by-Full-Fact.pdf See also the submission by Full Fact, which includes several other examples from other titles in which the headliness do not reflect the content of the article: http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/ Second-Submission-by-Full-Fact.pdf 450 pp53-54, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Submission-by-Full-Fact.pdf 451 http://www.pcc.org.uk/news/newsletter/november/readersmisled.html
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Notwithstanding the fact that the PCC issued this warning in 2008, the Inquiry heard evidence of a continuing problem. In 2010, OK! Magazine advertised an exclusive interview with Ms Miller on its website, despite the fact that there was no exclusive interview in the magazine. Further, during the Inquiry, OK! Magazine published a teaser entitled, Catherines royal birthday, the intimate party, gifts, star guests and delicious menu despite the fact that inside the magazine there was no information on the gifts, guests or menu at the party.452 It cannot be the case that the majority of the misleading headlines and teasers identified during the course of the Inquiry were accidental. Although there was clear evidence (emphasised by journalists whose stories were criticised because of the headline) that headline writers were generally not the journalists who wrote the stories, those sub-editors or headline writers must have read the articles or piece in question before composing their headlines. And they must have written the headlines in the knowledge, first, that they did not fully reflect the contents of the article or magazine and, second, that if the rebuttal which undermined the headline was included in the piece, it was almost inevitably buried at the end. The Daily Stars editor Dawn Neesom agreed that the Daily Stars headlines were intended to create as much impact as possible in order that the person passing the newspaper stand might say, Ill buy the Star today. In respect of at least some of the headlines put to her from the pages of the Star, she accepted that the consequence was that they were misleading.453 Daily Express editor Hugh Whittow agreed that some of his headlines were designed to strike a resonance with the attitudes of his readers, but he too accepted that, in the 75 per cent say quit the EU example at least, that meant the headline was misleading.454 OK! Magazines Lisa Byrne noted a tension between the need to sell the magazine and the need for accuracy in teasers, but thought that, except in limited examples (a story about Wayne and Coleen Rooney and Sienna Miller example) OK! had not crossed the line into being misleading.455 What seems clear is that, faced with a fiercely competitive market, some titles have found themselves on the wrong side of the line between an attention-grabbing but accurate headline and an embellished and inaccurate headline.456
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Deliberate or reckless inaccuracy in respect of big stories

9.35 A third category of inaccurate reporting of which the Inquiry heard substantial evidence was a tendency in parts of the press to set aside the need for rigorous fact checking in the context of fast moving and high profile stories. The clearest examples of this practice are the highest profile: the defamatory and reckless reporting of the McCanns and Mr Jefferies, dealt with above457.
pp81-87, lines 15-2, Lisa Byrne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-18-January-2012.pdf 453 pp52-58, lines 16-22, Dawn Neesom, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-12-January-2012.pdf 454 pp121-124, lines 13-11, Hugh Wittow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-12-January-2012.pdf 455 pp86-87, lines 11-2, Lisa Byrne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-18-January-2012.pdf 456 See also the section on inaccurate reporting of political issues at para 9.38 below 457 Part F, Chapter 5
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Notably, this tendency was not limited to tabloid newspapers: in respect of Mr Jefferies in particular the broadsheets were not blameless. In addition, Mr Davies gave an example of the Guardians reporting of the Haut de la Garenne childrens home story as an example of where the Guardian, amongst others, had published inaccurate articles in circumstances where greater care would have led to the conclusion that there was no basis for the story. Consistent with the McCann and Jefferies examples, there was limited information available at the time of the reports of the alleged murders, torture and burials at the Jersey childrens home, but a significant public demand for information. Mr Davies said:458 We want the story that will sell papers, so therefore you pick the sexiest possible way of telling it. The problems that are associated with that I think spread across the spectrum. Im not exempting the Guardian from problems. We have run stories which were clearly false. The Jersey childrens home do you remember that, a couple of years ago where the idea was that the police had evidence that children had been killed and buried in the ruins of an old childrens home on the isle of Jersey. Thats a classic of what Richard [Peppiatt] was trying to describe earlier. The evidence for the truth of that proposition is screaming its falsehood. So, for example, the police said, We have been looking into the ruins of this building and we have found a cellar which is exactly like the cellar which is described by our survivor witnesses. Its very dark. Cellars are dark. It means nothing. Then they said, And in this cellar we found a bath, and its quite alarming, this, the sort of hints of torturing. Its actually bolted to the floor, as though everybodys bath was mobile. Its silly. It doesnt make any sense. So then the problem that occurred on all newspapers across the whole spectrum is its too good a story to knock down. So its exactly what Richard was saying. A reporter from any paper is sent out to Jersey to follow up on this story. The reporter who rings up and says, Actually, this is crap, theres just no evidence for this at all, they will not be thanked. Its a great story.
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These examples, along with some others, are part of the evidence base for a broader conclusion, that in respect of stories that become big stories followed by all the press, and generally involving crime or a very high profile individual, there is a tendency amongst large parts of the press to disregard the rule book.
Inaccurate reporting of political issues to fit the world view of a title

9.38 The Inquiry heard a great deal of evidence on the extent to which newspapers ought to distinguish between fact and comment in reporting; a requirement to do so is contained in the Editors Code.459 It was almost universally accepted by the witnesses who appeared at the Inquiry that the distinction between fact and comment, particularly in respect of the reporting of political issues, had been substantially blurred in recent years. Former Prime Ministers the Rt Hon Tony Blair and the Rt Hon Gordon Brown gave evidence of the corrosive effect that
pp85-86, lines 1318, Nick Davies, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-29-November-2011.pdf 459 Clause 1(iii) of the Code states: The Press, whilst free to be partisan, must distinguish clearly between comment, conjecture and fact
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this blurring of news and comment could have on political life.460 To varying extents, others, including the Rt Hon Kenneth Clarke461 and the broadcaster Jon Snow,462 agreed. 9.39 Although some consideration was given to whether this development justified criticism, it seems to me that the blurring of fact and comment, although prohibited in the Editors Code, is an inevitable part of press reporting in the 21st century. That is so for two reasons. First, because purely factual reporting devoid of all opinion is, to all practical purposes, impossible: the choice of stories to publish in a newspaper, and the facts chosen to include in a particular story, will necessarily be influenced by a newspapers agenda and opinions. Secondly, because in a world of 24 hour television and online news, readers expect newspapers to provide something more than pure news: campaigns, opinions and comment are what a readership demands and it is not always possible or indeed desirable to divorce these from pure reporting of the news. That is not to say that newspapers should not seek to identify, where possible, what is primarily news and what is primarily commentary. But it is to say that that the fusion of news and comment in the press is not necessarily a practice that is harmful or worthy of criticism. However, what is harmful and what is worthy of criticism is a practice identified in sections of the press of prioritising the worldview of a title over the accuracy of a story. Mr Campbell, a supporter of what he called agenda journalism (where news and comment are necessarily fused), nonetheless argued that sections of the press had taken agenda journalism to a point where it transgressed into the realms of invention and/or reckless inaccuracy.463 Mr Peppiatts evidence in relation to the top-down pressure experienced at the Daily Star to uncover stories that fit within a particular narrative is a prime example of this and is discussed above.. Full Fact has monitored press accuracy since April 2010. It provided a comprehensive and extremely helpful submission464 to the Inquiry which identified a range of inaccurate articles, including many where the inaccuracy appears to be the result of the titles agenda taking precedence or assuming too great a significance over and beyond the facts of the underlying story. It seems that stories on political issues are most likely to suffer from this form of inaccuracy; examples are considered within the following categories: (i) disability and social welfare benefits; (ii) criminal justice issues; (iii) immigration; and (iv) Europe and Britains role within it. In relation to articles on disability and social welfare benefits, Full Fact provided numerous examples of misleading articles about the transition from the old Incapacity Benefit (IB) to the new Employment Support Allowance (ESA). Each article appeared to support an agenda of exposing benefit frauds and getting the work-shy back into work. Full Fact provided many examples, all of which could have been included in this Report: by way of illustration only, three are referred to.
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p6, lines 4-24, p12, lines 1-23, p16, lines 914, p18, lines 125, pp24-28, lines 12-23, Tony Blair, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning-Hearing-28-May-2012.pdf; pp26-32, lines 16-4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Afternoon-Hearing-28May-2012.pdf http://news.bbc.co.uk/1/hi/uk_politics/6744581.stm; para 4 6, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/05/Witness-Statement-of-Tony-Blair1.pdf; pp15-21, lines 24 14, Gordon Brown, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-Morning-Hearing-11-June-2012.pdf 461 pp83-85, lines 1-1, Kenneth Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-30-May-2012.pdf 462 pp5-9, lines 25-24, Jon Snow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-25-June-2012.pdf 463 pp12-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-AlastairCampbell.pdf 464 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Submission-by-Full-Fact.pdf
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9.43
First, the Daily Mail published an article under the headline 400,000 were trying it on to get sickness benefits: 94% of incapacity benefits [sic] can work. In fact the report on which the article was based had reported that, in the transition from IB to ESA, only 6% of sickness benefit claimants had been assessed as unsuitable for any kind of work related activity. However, many of the 94% of people described in the headline as trying it on and fit for work were those assessed as falling with the Work Related Activity Group (WRAG) for the purposes of ESA; that is, they were eligible to claim ESA, considered unsuitable for immediate work, but potentially suitable for work in the future. That included people undergoing chemotherapy or dialysis treatment, hospital in-patients, and those suffering from uncontrollable and life threatening diseases, none of whom would ordinarily be thought of as trying it on to claim sickness benefit.465 Second, The Suns article, Fit as a Fiddler: Sick spongers could start work right now suggested 1.8 million people on sickness benefit were fit for work, or would be fit for work within a few weeks. The 1.8 million spongers described in the headline included the same group as those described as trying it on by the Daily Mail: those placed in the WRAG who were assessed as unsuitable for immediate work, but potentially suitable for work in the future, including cancer patients, those with renal failure, hospital in-patients and others suffering from serious diseases. The suggestion that this group would be fit for work within a few weeks had no factual basis.466 Third, the Daily Telegraph published an article reporting Nine out of 10 sickness benefit claimants are judged fit to work. That nine out of 10 judged fit to work included not only those in the WRAG, but also those who had withdrawn their claims because their condition had improved between application and assessment. In that context, it was not only misleading to refer to the nine out of 10 as fit to work, but it was also misleading to include within the figures the category of people who had withdrawn their claims and were therefore no longer claimants.467 The House of Commons Work and Pensions Select Committee was critical of the press coverage of welfare reform in its 6th Report. It noted:468 Sections of the media routinely use pejorative language, such as work-shy or scrounger, when referring to incapacity benefit claimants. We strongly deprecate this and believe that it is irresponsible and inaccurate. The duty on the state to provide adequate support through the benefits system for people who are unable to work because of a serious health condition or illness is a fundamental principle of British society. Portraying the reassessment of incapacity benefit claimants as some sort of scheme to weed out benefit cheats shows a fundamental misunderstanding of the Governments objectives. 41. In the end, the media will choose its own angle, but the Government should take great care with the language it itself uses and take all possible steps to ensure that context is provided when information about IB claimants found fit for work is released, so that unhelpful and inaccurate stories can be shown to have no basis.
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9.47
The Select Committee is right to acknowledge that the media is entitled to choose whatever angle on a story it wishes, particularly on matters of political importance. Nonetheless, there is an important distinction to be made between taking an angle and plain inaccuracy. It is vital that the press is cautious not allow the former to lead to the latter.
465 466
p15, ibid p41, ibid 467 p55, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Submission-by-Full-Fact.pdf 468 paras 40-41, http://www.publications.parliament.uk/pa/cm201012/cmselect/cmworpen/1015/101505.htm
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Full Fact identified a number of examples of misreporting on criminal justice issues where it also appears that this line was transgressed. In March 2011, both the Daily Mail and the Daily Express published articles reporting that new sentencing guidelines would allow those supplying class A drugs to avoid a custodial sentence if they were playing a subordinate role in a criminal gang. The Daily Mails piece was headlined, Heroin Dealers to Escape Jail: new sentencing proposals mean pushers would go free; the Express headline was Its madness to let drug dealers escape prison. The reality is that the new sentencing guidelines made no change at all to the approach to sentencing those involved in the supply of drugs, but broadly instead preserved the status quo.469 Nonetheless, the stories fit within an established agenda to resist a general softening in criminal sentencing. Full Fact noted these articles as part of a general trend within parts of the press to misreport stories on criminal sentencing to give an impression of a judiciary soft on crime and criminals. Retired Court of Appeal judge Sir Stephen Sedley recently spoke about this narrative in parts of the press and expressed his concerns as to its effect. He said to the Joint Committee on Privacy and Injunctions that:470 over the 20 years or so since I first became a judge a relentless campaign of accusing judges of being soft on crime and under-sentencing has led to the escalation of sentencing, which has now filled our prisons to bursting, about which it is recognised something needs to be done. That is insidious; it is very difficult to put your finger on any one newspaper article or case in which it has happened, but as a trend it undoubtedly has happened.
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9.50
The Howard League for Penal Reform also gave evidence in relation to the misrepresentation of criminal sentencing. It noted The Suns article on the sentencing of the mother of Baby Peter (formerly known as Baby P), and its expression of outrage that she could walk free in just over 3 years. The reality is that she had been given an indeterminate sentence for public protection (IPP), with a minimum tariff of five years. Under that sentence, the woman in question would only be released if she were deemed to pose no risk to the public, failing which she would remain in prison indefinitely and potentially for life. While it was technically true that, having served almost two years of her sentence on remand, she was eligible to be considered for parole after a further three years, the failure to mention that she had been given an IPP sentence, would not be released if she was considered a danger to the public and could remain in prison for life rendered the article significantly misleading.471 Similarly misleading reporting was noted in relation to immigration issues (some of which is discussed above). Further evidence included, for instance, a Daily Mail article alleging that a failed asylum seeker who had challenged deportation from Britain, was told he could stay because he goes to the gym. The article was erroneous on several bases. First, the judge had not granted the failed asylum seeker any leave to remain in the UK, but had simply required the Home Office to reconsider his application because of flaws in the decision making process. Second, at no stage in the judgment did the judge indicate that the individuals membership of a gym was in any way a factor in his favour. Although one sentence of the judgment referred to the fact that the individual had made friends at a gym, that sentence was a summary of the failed asylum seekers submissions to the court, rather than any part of the judges
9.51
p15, ibid. The only proposed alteration to the sentencing approach to class A drugs concerned drugs mules although they also would continue to receive substantial custodial sentences 470 pp7-8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Submission-by-Full-Fact.pdf 471 pp2-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-Howard-League-for-PenalReform1.pdf
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reasoning.472 It is unclear if the misunderstanding of the judgment in the article was careless or deliberate. Nonetheless, the story fits neatly within a campaign pursued by the newspaper against Article 8 of the European Convention on Human Rights, or what the Daily Mail has called the human right to sponge off the UK.473 9.52 A further Daily Mail story headlined Immigration soars 20 per cent last year making a mockery of government pledge to bring it down, was mirrored by the Daily Express with its headline Immigration soars 20%. In fact, the report on which both articles were based made clear that immigration had remained stable, but net migration had increased by 20% because emigration had fallen.474 Another article in the Daily Express, headlined Migrants more likely to claim jobless benefit, reported that a study had shown that migrants to the UK were more likely to claim unemployment benefit than people from the UK. In fact the report on which the article was based concluded that migrants, who were claiming benefits, were more likely than non-migrants, who were claiming benefits, to be claiming job seekers allowance, but migrants as a whole were less likely to claim benefits than the UK born population.475 Once again, it is unclear whether the errors were careless or deliberate, but they did fit within consistent agendas pursued by each newspaper. Articles relating to the European Union, and Britains role within it, accounted for a further category of story where parts of the press appeared to prioritise the titles agenda over factual accuracy. On Europe, Mr Campbell said:476 Several of our national daily titIes The Sun, The Express, The Star, The Mail, The Telegraph in particular- are broadly anti-European. At various times, readers of these and other newspapers may have read that Europe or Brussels or the EU superstate has banned, or is intending to ban kilts, curries, mushy peas, paper rounds, Caerphilly cheese, charity shops, bulldogs, bent sausages and cucumbers, the British Army, lollipop ladies, British loaves, British made lavatories, the passport crest, lorry drivers who wear glasses, and many more. In addition, if the Eurosceptic press is to be believed, Britain is going to-be, forced to unite as a single country with France, Church schools are being forced to hire atheist teachers, Scotch whisky is being-classified as an inflammable liquid, British soldiers must take orders in French, the price of chips is being raised by Brussels, Europe is insisting on one size fits all condoms, new laws are being proposed on how to climb, a ladder, it will be a criminal offence to criticise Europe, Number 10 must fly the European flag, and finally, Europe is brainwashing our children with pro-European propaganda! Of the UK press and the European institutions I speak as something of a Eurosceptic by Blairite standards it is clear who does more brainwashing. Some of the examples, may appear trivial, comic even. But there is a serious point: that once some of our newspapers decide to campaign on a certain issue, they do so with scant regard for fact. These stories are written by reporters, rewritten by subs, and edited by editors who frankly must know them to be untrue. This goes beyond the fusion of news and comment, to the area of invention.
9.53
pp28-29, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Submission-by-Full-Fact.pdf http://www.dailymail.co.uk/news/article-2004501/3-200-foreign-criminals-kicked-right-family-life.html 474 p21, p35, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Submission-by-Full-Fact.pdf 475 p33, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Submission-by-Full-Fact.pdf 476 pp13-14, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-AlastairCampbell.pdf
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Although Mr Campbells evidence may have been exaggerated for effect, there is certainly clear evidence of misreporting on European issues. Mr Campbell drew attention to a Daily Mail story claiming that the EU was going to ban grocers from selling eggs by the dozen, followed by a story that there had been a U-turn and the ban would no longer take place. The reality is that there had never been a ban proposed and the original story was based on a deliberate or careless misinterpretation of EU proposals.477 Full Fact drew attention to a number of further anti-EU stories which misrepresented facts, including a Daily Express report on EU plans to ban plastic shopping bags, when the reality was that a consultation had been launched to explore a variety of options, including a potential ban, for reducing waste from plastic bags.478 The factual errors in the examples above are, in certain respects, trivial. But the cumulative impact can have serious consequences. Mr Blair explained that the misinformation published about Europe by some parts of the press made it difficult for him to adopt particular policies or achieve certain political ends in Europe that he might otherwise have done. He said:479 My distinction is between that and how you actually report the story as a piece of journalism. So if you take the issue to do with Europe, what I would say is that those papers who are Eurosceptic are perfectly entitled to be Eurosceptic. Theyre perfectly entitled to highlight things in Europe that are wrong. What they shouldnt do is, frankly, make up a whole lot of nonsense about Europe and dish that up to the readers, because thats I mean, how does the reader know thats not correct?
9.55
9.56
That, ultimately, is the foundation of the criticism made in this section: there can be no objection to agenda journalism (which necessarily involves the fusion of fact and comment), but that cannot trump a requirement to report stories accurately. Clause 1 of the Editors Code explicitly, and in my view rightly, recognises the right of a free press to be partisan; strong, even very strong, opinions can legitimately influence the choice of story, placement of story and angle from which a story is reported. But that must not lead to fabrication, or deliberate or careless misrepresentation of facts. Particularly in the context of reporting on issues of political interest, the press have a responsibility to ensure that the public are accurately informed so that they can engage in the democratic process. The evidence of inaccurate and misleading reporting on political issues is therefore of concern. The previous approach of the PCC to entertaining complaints only where they came from an affected individual may have allowed a degree of impunity in this area: in the context of misleading reporting on political issues, representative bodies are likely to be far better placed to monitor, and complain about, inaccuracies.
Science reporting
9.57 In many ways, the imperative for accuracy in political reporting is matched in relation to science reporting. There is a significant public interest in the press reporting scientific advances, discoveries or reports in an easily accessible way. The evidence received by the Inquiry suggested that science reporting had improved in recent years and that the majority of science reporting was responsible and accurate.480 However, in the minority of cases where
p15, ibid pp38-39, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Submission-by-Full-Fact.pdf 479 p25, lines 3-12, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-28-May-2012.pdf 480 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Fiona-Fox.pdf; para 1, http://www.wellcome.ac.uk/stellent/groups/corporatesite/@policy_communications/documents/web_document/ wtvM054159.pdf
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the press reports a science story carelessly or inaccurately, it can cause substantial damage. As the Science Media Centre wrote:481 The potential of the media to influence and inform the public on science comes with a huge responsibility. When the media gets it wrong the impact is devastating and causes real harm to individuals and society. The furore over the measles, mumps and rubella (MMR) vaccine, which started in 1998 after a rogue doctor claimed a link between the vaccine and autism, is the best known example of how poor media reporting can cause harm. Vaccination rates before the story stood at about 92% but dropped down to 80% after the scare, and it has taken close to 15 years to get over the damage. Cases of measles in England and Wales rose from 56 in 1998 to 1,370 in 2008. 9.58 In respect of the MMR story, it is correct that the press as a whole were reporting the work of a qualified medical practitioner, as published in a respected medical journal. However, the Science Media Centre, the Association of Medical Research Charities, Cancer Research UK, the Wellcome Trust, and Sense about Science all considered that the press shared responsibility for the scandal, primarily because a single doctors research, based on a small case study, which conflicted with all other research in the field and conflicted with the great majority of medical opinion, was unjustifiably given front page prominence.482 The MMR example was cited by each of these organisations as an example of false balance within the press: that is to say, where the scientific view of a very small minority is given prominence which suggests that there is a significant conflict of opinion within the scientific community.483 As Fiona Fox, Chief Executive of the Science Media Centre, said in relation to the MMR scare:484 Time and time again the editor demanded that the fact that 99.99999 per cent of medical science believed this vaccine to be safe had to be balanced in every article by Andrew Wakefield or one of his supporters. So you have the terrible situation where a MORI poll showed, at the height of this crisis, that nearly 60 per cent of the British public thought that medical science was divided. Thats the bit on which the media let the public down. 9.60 False balance (or on occasion, overtly politicised reporting) was noted as a general concern in relation to other topics, including the reporting of GM crops and climate change.485 The Daily Expresss article 100 reasons why global warming is natural was identified as an example of where false balance, or the titles political agenda, resulted in a misleading and inaccurate piece of science reporting.486 The Association of Medical Research Charities, Cancer Research UK, and the Wellcome Trust wrote:487
9.59
p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Fiona-Fox.pdf pp19-22, lines 3-3, Fiona Fox, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-24-January-2012.pdf ; para7, http://www.wellcome.ac.uk/stellent/groups/corporatesite/@policy_ communications/documents/web_document/wtvM054159.pdf ; paras 2.3-2.4, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/02/Submission-by-Sense-about-Science.pdf 483 paras 2.3-2.4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-Sense-aboutScience.pdf 484 pp20-21, lines 17-3, Fiona Fox, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-24-January-2012.pdf 485 p6-7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Fiona-Fox.pdf ; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-Dr-John-Abraham-University-of-StThomas.pdf 486 p6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Fiona-Fox.pdf 487 paras 12-13, http://www.wellcome.ac.uk/stellent/groups/corporatesite/@policy_communications/documents/ web_document/wtvM054159.pdf
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The media often has a tendency to pursue balance in its stories, by countering one claim with another, and allowing alternative viewpoints a right of reply. This is perfectly proper in, for example, political reporting. Yet in science, the practice can often lead to distortions of its own. In science, it is often the case that a mainstream opinion about the interpretation of known data is shared overwhelmingly by professionals in that field, for example with the safety of the MMR vaccine or the link between greenhouse gases and global warming. When this is the case, the effect of balancing opinion to stoke debate can be to create a misleading impression that dissent from the mainstream view is more widespread and serious than it actually is. 9.61 In addition to a problem of false balance, the Inquiry heard that there is a tendency in parts of the press to sensationalise science news headlines. Ms Fox noted that the content of the copy of science stories, written by science reporters, was generally exemplary, but that the headlines attached by sub-editors tended to misrepresent and exaggerate the underlying story.488 Those headlines tended to fit within the category of scare story or breakthrough. Within the category of scare story the Inquiry saw examples including The Suns headline Breast cancer risk all over shops shelves. The underlying research showed that traces of household chemicals are found in the breast tissue of women with breast cancer but the research did not find any causal link between the chemicals and breast cancer, let alone a causal link sufficient to justify the headline.489 Similarly, a number of newspapers published stories, based on a British Medical Journal (BMJ) report, advising pregnant women against sleeping on their right (Sleeping on left cuts stillbirths: New advice for mums-to-be (Mirror); Sleep on your left to avoid stillbirth (Sun); Sleeping on your right side could put your unborn baby at risk (Mail)). However, the studys own authors, the BMJ editorial, the BMJ press release and a set of expert comments released by the Science Media Centre all stated clearly that the study on which the article was based was not sufficient evidence to provide any new health advice to pregnant women.490 The Daily Mail has a clear commitment to reporting on health issues, as evidenced by its weekly Good Health supplement, but it has also been criticised for headlining with unjustified scare stories. One example seen by the Inquiry was the Daily Mails report of a Cancer danger of that night-time trip to the toilet. The underlying research showed that interrupting the circadian rhythms of mice by flashing lights for one hour pulses during a 12 hour night time cycle could cause damage to cell division. The research did not show a causal relationship between interruptions of circadian rhythm and cancer, but suggested that further research could investigate whether there might be such a link. Although one of the researchers said in an interview that turning on an artificial light at night could have an impact on the body clock, there was no suggestion in the research, nor in the interview, that a night-time trip to the toilet causes cancer.491 It is appropriate to mention a more recent example of a slightly different type of science story which causes concern. On 26 June 2012 the Daily Mail published an article that purported to describe the findings of research undertaken by scientists at the University of New York.
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p25, lines 5-17, Fiona Fox, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-24-January-2012.pdf . As indicated above, this is not a problem limited to science stories. 489 pp40-41, lines 6-2, ibid 490 p10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Fiona-Fox.pdf 491 pp95-100, lines 1-22, Paul Dacre, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcriptof-Afternoon-Hearing-6-February-20121.pdf ; paras 66-84, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/08/Submission-from-RPC-regarding-Shaw-Morrissey-and-Mouse.pdf;
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The headline in the Mail Online read Racism is Hardwired into the Brain.492 The article itself made a number of points, including: Its possible, the researchers say, that even rightthinking, egalitarian people could harbour racist attitudes without knowing. 9.65 This interpretation of the scientific research put forward in the Daily Mail article has since been rebutted in terms in a letter to the Guardian by the team of scientists at New York University who conducted that research.493 Further, Dr Elizabeth Phelps, the lead researcher who is also cited in the Daily Mail article, has made clear in the relevant correspondence that the Daily Mail did not contact the researchers for comment, but rather quoted selectively from the press release announcing their findings.494 Dr Phelps et al criticised the interpretation of the research put forward by the Daily Mail, and in particular the use of words like hardwired, as irresponsible.495 In response to questions from the Inquiry, Martin Clarke, editor of the Mail Online, said that the article was written from copy supplied by a respectable agency, National News.496 Mr Clarke also stated that the article was published by others under a very similar headline. He drew to the attention of the Inquiry the example of Medical Daily, an online trade journal and news aggregator for the medical profession, published in the USA.497 However, Mr Clarke did not mention that the Medical Daily report appears to rely heavily on the Mails own article, and reads:498 A few decades ago, it was unthinkable that looking at the brain to understand representations of social groups such as black versus white was even possible, let alone that such explorations could yield useful knowledge, the authors wrote, according to the Daily Mail. 9.67 The argument that the article has been provided by an established News Agency, or alternatively published by others under a similar headline, if correct, merely serves to demonstrate that this lapse of standards occurred in publications beyond the Mail. On any view, this was contentious and problematic material, and merited careful handling. Further, it was not in the nature of a story which necessitated urgent treatment. Examples of scare stories are not limited to health journalism; the reporting of climate change is also susceptible to exaggeration. When a Nature paper modelling climate change projected warming between 2 degrees and 11 degrees, almost all the newspapers carried the latter figure in their headlines, with one tabloid splashing a huge 11 degrees on the front page alongside an apocalyptic image. This was in spite of the fact that the press briefing to launch the paper had all emphasised that the vast majority of models showed warming around 2 degrees.499
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http://www.dailymail.co.uk/sciencetech/article-2164844/Racism-hardwired-human-brainpeople-racists-knowingit.html 493 www.guardian.co.uk/world/2012/jul/02/mail-race-nature-neuroscience?newsfeed=true 494 ibid 495 ibid 496 p4, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-statement-by-Martin-Clarkere-Miscellaneous-articles.pdf 497 p4, para 10, ibid 498 http://www.medicaldaily.com/articles/10458/20120626/racism-decision-cognition-emotional-ethnicity-humanbrain-psychology.htm 499 p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Fiona-Fox.pdf
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The impact of these kinds of scare stories can be twofold: first they can create unnecessary public anxiety, and (as in the case of the MMR scandal) have a consequently detrimental impact on public health; and second, they can have a cry wolf effect, reducing trust in science reporting generally. The flipside of the scare-story is the overblown breakthrough. As noted by the Association of Medical Research Charities, Cancer Research UK, and the Wellcome Trust:500 Many newspapers (though not all of them) are apt to exaggerate interesting but preliminary advances in biomedical science, proclaiming them as groundbreaking achievements that will transform individuals health when in fact they are reporting nothing more than promising results from experiments on mice, or cells grown in culture.
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9.71
F
9.72
Examples of such stories included stories based on a report in Nature magazine that a drug discovered in the soil on Easter Island may have the effect of extending life in mice, but was expressly said to be harmful to humans. Nonetheless, the headlines included: Scientists discover Easter Island fountain of youth drug that can extend life by ten years, Easter Island drug adds decade to life and New pill can add decades to life.501 Similarly, an example from The Independent was a story about the use of human stem cells to regenerate growth headlined, Once they were blind, now they see. Patients treated with cells from human embryo. Unfortunately, the research on which the article was based did not show that stem cells had caused blind people to see again. It had simply shown that stem cells could be used safely in humans. There was no evidence that the stem cells, rather than chance, had caused two of the subjects of the experiment to show marginal improvements in their vision.502 Such exaggerated breakthrough reporting can have several negative consequences. First, it can raise expectations for advances in medical science which are not met. This can feed a public perception that science is always promising and never delivering. Secondly, it can raise false hopes for patients. As the Association of Medical Research Charities, Cancer Research UK, and the Wellcome Trust noted:503 This is particularly true and damaging where it concerns treatments for incurable diseases that are not proven, yet which are portrayed as miracle cures. This can lead patients to spend life savings on treatments that are most unlikely to work, or on occasion to eschew the most effective known therapies in favour of alternatives that are untested or disproved.
9.73
Ms Fox suggested that the press ought to exercise a little more caution in the prominence given to science stories and in the choice of headline. She noted that the press like to publish extraordinary claims, but need to ensure that those claims are backed by extraordinary evidence. She said:504 We are not proposing that the media ignore extraordinary stories but that they treat them with extra caution and demand at least some strong evidence before going to print. This may simply mean putting these stories further inside the paper rather than
pp2-3, http://www.wellcome.ac.uk/stellent/groups/corporatesite/@policy_communications/documents/web_ document/wtvM054159.pdf 501 p12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Fiona-Fox.pdf 502 pp26-28, lines 2-4, Fiona Fox, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-24-January-2012.pdf 503 p3, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Submission-by-Wellcome-TrustCancer-Research-UK.pdf 504 p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Fiona-Fox.pdf
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splashing on the front page, including the voices of third party experts casting doubt on the findings, and following up these stories with equally significant coverage if the claims are refuted. 9.74 Assessing the evidence as a whole, it is clear that science reporting is generally accurate and responsible. However, the examples of inaccurate reporting identified by the various witnesses demand attention. Given the important public interest in science journalism, and the potential harm caused by overblown or sensational science reporting, greater care is needed by parts of the press prior to publishing sensational headlines of breakthroughs or scares. In addition, further consideration should be given to the need to provide balanced reporting without giving unjustified credence to minority views. At the end of her evidence I invited Ms Fox to provide some draft guidelines for science journalism which, if followed, would reduce the risk of the press printing the type of story that has received critical comment. Ms Fox has responded to that request and has produced guidelines505 which in my view are commendable for their utility as well as their succinctness. Any new regulator should bear them closely in mind.
9.75
Conclusion
9.76 In their various submissions and representations to the Inquiry, the Press Core Participants and others with a similar interest have urged on me that factual error cannot be eliminated in press reporting, and that the evidence adduced to the Inquiry falls short of supporting the proposition that the problem is sufficiently serious or widespread to be classed as systemic, cultural or generic. I have paid close regard to these submissions, and I have not lost sight of the point that the Inquiry is inevitably taking a snap-shot of a picture which is immensely complex and multi-faceted. I have already made the point that the issue is not about quantity.506 Taking all these matters on board, and assessing the evidence as a whole, I have come to the conclusion that there does exist a cultural strand or tendency within a section of the press to practice journalism which on occasion is deliberately, recklessly or negligently inaccurate. In other words, this is not simply a matter of accidental (or co-incidental) understandable human error. The reasons for the existence of this cultural strand go further than the obvious and basic fact that stories are often written under pressure of approaching deadlines and it is inevitable that errors will occur. The pressures I am particularly concerned about are of a different nature: specifically, the commercial and personal pressures operating on journalists in an extremely competitive market to be the first to achieve the scoop, to place a novel slant on a story which otherwise lacks punch, or at worst to manufacture the facts or detail of a story to maintain the interest of the readership. As with other similar cultural problems which I have identified in this Chapter, the requirement is for the creation of a regulator with more robust powers, not to censor or control the content of press reporting but to set out firmer and clearer ethical and professional standards whose adherence would directly lead to far fewer (measured both qualitatively and quantitatively) of the types of sub-standard reporting this chapter has identified. In that regard, the value of the work carried out by Full Fact is extremely important and I am pleased to recognise that Full Fact can claim to be one of the organisations that does seek to guard the guardians.
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http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Second-Submission-to-inquiry-Guidelines-forScience-and-Health-Reporting.pdf. 506 para 1.1 of Part F, Chapter 3
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10. Financial controls and payments for stories

Controls on payments
10.1 The Operation Motorman revelations, along with the evidence of phone hacking at NoTW highlighted a significant problem with the control over cash payments within a number of newspaper titles. The evidence received by the Inquiry suggests that some improvements have been introduced to address the supervision of cash payments,507 but there was certainly some evidence to suggest that more could be done in some titles.508 Without engaging in the evidence relating to payments to public officials, which for reasons already described cannot be addressed in any detail, it is not possible to conclude in this Report that the supervision and control of cash payments is a practice for which the press, or parts of the press, deserve criticism as a whole. However, the evidence heard by the Inquiry did raise substantial concerns in relation to the payment of sources generally, whether by cash or electronically. The concern arises not necessary because those sources are or are likely to be acting unlawfully (such as Mr Whittamore or Mr Mulcaire), but because the very act of payment may reduce the reliability of the information, and/or encourage breaches of privacy. The evidence of the fake stories and medical records stings in Mr Atkins Starsuckers shone a light on this problematic issue. The evidence heard by the Inquiry is that the practice of paying sources for stories was widespread and continuing. Although there are undoubtedly circumstances in which payments for stories may be justified (see the MPs expenses stories) the evidence suggested payments for stories may incentivise exaggeration or fabrication and/ or encourage breaches of privacy. For those reasons, it is worth exploring the evidence of this practice in some detail. The Inquiry has been told that virtually all tabloid newspapers accept stories from members of the public, and indeed, many pay for that information. Most broadsheets, including the Financial Times, The Independent, the Daily Telegraph, The Times and the Guardian do not actively seek stories from the public and prefer not to work in this way, but all except the Guardian and the Financial Times would still pay for information if justified by the public interest.509
10.2
10.3
F
10.4
Advertising for stories

10.5 Both journalists and editors have told the Inquiry that they regard tip-offs from the general public as an important source of legitimate information. In particular, they have made clear that the importance of such information to newspapers should be recognised in the form of payment to the individuals who supply it. In his evidence to the Inquiry, Mr Myler said that it was entirely legitimate for newspapers to make payments to sources for information that was newsworthy.510 This view is shared by others in the industry, including Mazher Mahmood, who said that he believed that it was important that members of the public were
p9, para 26, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Hugh-Whittow. pdf 508 p118, lines 1-6, Hugh Whittow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-12-January-2012.pdf 509 p89, lines 1-3, Nick Davies, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-MorningHearing-29-November-2011.pdf 510 pp43-45, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-MorningHearing-15-December-20111.pdf
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paid and rewarded for legitimate tips, information and stories.511 However, there is perhaps a difference between making payment for a tip-off that is made without encouragement or request, and actively soliciting tip-offs through advertising for stories. 10.6 Traditionally, the tabloid press has advertised for information or stories through prominent advertisements in the pages of the particular newspaper and, in some cases, on the straplines of relevant columns, or through prominently sited and easy to find web-pages. Mr Smart confirmed The Suns approach: page 2 of the newspaper routinely carries a telephone number that members of the public can call directly if they have stories that they perceive to be of potential interest to the newspaper.512 By way of example, on Friday 30th March 2011, this advertisement read: Get cash for your stories: We are always after good story and we pay big money for them every day. If youve got a story about a celebrity, a scandal, a human interest story or any other great tip, call our newsdesk today. Dont worry about the cost well call you straight back. 10.7 10.8 In addition to the telephone number The Sun also provides an email address and Twitter link through which members of the public might contact the paper. Just like The Sun, the NoTW also advertised for stories, drawing the attention of readers to the payments, (sometimes in cash but also by cheque or electronic means) that the newspaper might make for those stories. In addition to advertisements carried on both its website and on the pages of the newspaper itself, the NoTW also asked readers to suggest potential lines of Inquiry that its one time investigative journalist, Mr Mahmood, might further investigate. That call was carried on the byline for Mr Mahmoods column and read:513 Do you know a scandal that Maz should expose? If so, you can ring him any time. 10.9 In addition to an email address, a phone number was also provided to facilitate that communication from readers. The NoTW was unique in advertising for members of the public to help inform potential lines of Inquiry for the investigative journalists at the newspaper, and in fact Mr Mahmood has said that only a very few investigations were initiated as a consequence of information received from members of the public.514 Mostly, where newspapers do advertise for stories, it is made clear, as is explored below, that the interest is in stories related to celebrities and other individuals with a public profile or, on a more limited basis, other human interest stories.
10.10 The Daily Mirror also advertises for stories and promises big monies for them. Particularly, it makes mention of stories relating to celebrities and other people with a public profile. Like The Sun, the Daily Mirror advertises for stories both on the paper as well as on the newspapers website through a link from the front page entitled sell your story.
p20, lines 11-19, Mazher Mahmood, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-25-January-20121.pdf 512 pp62-63, lines 22-5, Gordon Smart, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-9-January-2012.pdf 513 p39, lines 20-21, Mazher Mahmood, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-12-December-2011.pdf 514 p20, lines 11-13, ibid
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10.11 The Daily Star also advertises for stories through a dedicated page on its website accessed through a drop-down link from the landing page of the newspapers website. That page reads:515 GOT A PICTURE OF CELEBS LETTING THEIR HAIR DOWN? LET US SEE THEM! Get your camera phones working and send your photos, with details who, where, when to us! Messages cost 1 plus usual network charges, but well pay a whopping 200 if your pics are used on the Goss pages. LOVE CELEB GOSSIP? SO DO WE, SEND US YOUR STORY! Know of a star behaving madly, sadly or badly? For your chance to bag 200 Send us your story with all the juicy details. If we use your story, well send you the cash!* Its as simple as that. 10.12 In evidence to the Inquiry, representatives from the Daily Star emphasised the importance of showbusiness and celebrity stories to that paper. Ms Neesom, told the Inquiry that as the title was a relatively young newspaper it did not have the same established readership as some of its competitors.516 The paper therefore needed to ensure that the content it carried appealed to its readership. Ms Neesom said that reader interest lay substantially in stories about the lives of celebrities and other individuals with a public profile.517 A number of these stories were sourced from members of the public responding to the call for stories published in the Star newspaper itself.518 10.13 The Daily Express also advertises for stories through its website. Readers are encouraged to contact the paper through a number of media, including telephone, email and SMS text message. It is notable that the Daily Express website makes no mention of payment in exchange for information.
Levels of payment for material

10.14 Levels of payment for information vary from newspaper to newspaper. Peter Wright, the former editor of the Mail on Sunday, said that at the Mail Group payments of up to 50,000 were made for information during his tenure.519 However, he was also clear that such an amount would be paid in exceptional circumstances and only for a story of substantive and significant interest to the readers of Mail Group newspapers. Typically, such a story would take the form of an in-depth interview or a book serialisation.520 More typically, Mr Wright said, the amounts paid by the Mail Group for stories, and particularly to members of the public, were much smaller: in 2010, the highest amount paid was 3,500, and they would most be a lot less than that.521 Mr Wright said that whilst most payments were made electronically, the Mail Group would also make cash payments, because some of those individuals supplying material might not have bank accounts.
http://www.dailystar.co.uk/gotastory/ p53, lines 2-7, Dawn Neesom, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-12-January-2012.pdf 517 pp47-49, lines 22-10, ibid 518 p46, lines 22-25, ibid 519 p79, lines 5-14, Peter Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-11-January-2012.pdf 520 p79, lines 5-8, ibid 521 p78 lines 12-14, ibid
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10.15 In this respect, the operation of payment systems at the Daily Mail was similar to that at The Sun. There, cash payments were still made in a small number of circumstances. It was for individual journalists to make such requests for payments to senior staff and managing editors for authorisation. Whilst the amounts that could be paid for information to third parties could be significant, they were dependent on the final size of the story when published and also the likely interest of the subject of the story to the readers. Typically, payments for stories made by The Sun ranged from between 600 and 10,000 depending on the size and nature of the story. 10.16 A similar scale of payment for information also existed at the NoTW. Mr Thurlbeck said that information leading to a front page splash might result in payments of up to 20,000.522 Mr McMullan explained that journalists working at the title, particularly those journalists working at the showbusiness desk, had access to substantive budgets without real oversight.523 Mr McMullan has said that, as deputy features editor, he was able spend amounts of up to 10,000 on stories that resulted in a double page spread.524 In this position, he was able to make payments of up to 3,000 for a page lead, and sums of between 5,000 and 10,000 for larger stories.525 Payments of more than 1,000 for any other story had to be authorised by the then editor. 10.17 Although the Inquiry has heard that payments for stories supplied by members of the public would not normally exceed 10,000, other witnesses have suggested that in certain circumstances, payments for certain stories, in particular kiss and tell stories involving individuals with a significant public profile, could be much higher. Mr Shear explained that competitive pressures could put significant upward pressure on payments made if the papers concerned understood the stories in question to be profitable.526 Mr Shear said that if stories involved a significantly high-profile celebrity, a kiss-and-tell story might cost: something like 10k to half a million.527 Indeed, Mr Thurlbeck claimed that Rebecca Loos was paid a six figure sum for information about her relationship with the footballer, David Beckham.528 10.18 Similarly, in Mr Atkins discussions with a NoTW journalist in relation to his medical records sting, the journalist set out the papers willingness to pay amounts substantially greater than 10,000 for stories of likely interest to readers and therefore of potential value.529 Mr Atkins recorded the journalist as suggesting that the NoTW might be willing to pay 80,000, depending on the strength of the story.530 10.19 Irrespective of the final amounts that have been paid it is clear that issues around payment formed an important part of discussions between journalists and their interlocutors. Mr Atkins evidence described his efforts to supply and sell information to a number of newspapers including the Sunday Mirror and the NoTW explaining that levels of payment were raised at the very outset of his discussions with the journalists from each newspaper.
p65, lines 17-23, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-12-December-2011.pdf 523 pp71-72, lines 21-12, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Afternoon-Hearing-29-November-2011.pdf 524 p71, lines 8-11, Paul McMullan, ibid 525 p73, lines 8, Paul McMullan, ibid 526 p64, lines 15, Graham Shear, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-21-November-2011.pdf 527 p64, lines 15, ibid 528 p73, lines 19-21, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-12-December-2011.pdf 529 p13, para 68, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Chris-Atkins1. pdf 530 p13, para 68, ibid
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Accuracy and the credibility of material supplied by members of the public

Corroboration 10.20 The specific concerns at payments for information crystallise not principally around the type of information disclosed by sources in exchange for payment, but rather that the fact of payment might encourage the sources of that information to exaggerate, distort or simply fabricate the information that they seek to sell. The section above dealing with Mr Atkins fake stories sting suggests that the mechanisms for corroborating such information given by third parties may not be particularly effective. 10.21 The Inquiry has received evidence from a number of different newspapers about the processes followed to establish the credibility of stories and the veracity of accusations that may have been made by members of the public in the information they seek to sell. These processes were also designed to protect newspapers from potential legal actions for libel or defamation.531 Although not uniform, the descriptions of such processes in evidence to the Inquiry from journalists at The Sun, the Daily Mirror and the Daily Star, as well as at the NoTW, are similar.532 It is illustrative of practices across parts of the press that these processes were not formal and whilst a number of witnesses to the Inquiry have claimed that they were generally practised, they were not obligatory or uniformly enforced.
10.22 Mr Smart described in broad terms the efforts made by journalists to establish both the credibility and reliability of stories that were provided by members of the public. These efforts might include journalists separately seeking corroboration of any allegations made through a number of sources.533 This might be done through contacting the subject of the story directly or indirectly through their agents or other representatives.534 Mr Smart said that the showbusiness journalists at The Sun had excellent contacts, particularly with the likely subject of stories submitted to the paper by members of the public; these contacts enable these journalists who might be pursuing such stories quickly to stand them up.535 10.23 A similar process is also followed at the Daily Mirror in response to potential stories supplied to the paper by members of the public. The practice there is to discuss potential stories with those who cold contact the paper, to make an initial assessment of the credibility as well as the value as a news item all during the initial telephone call. In those circumstances where journalists perceive stories to be credible, they might meet with the source to discuss the material further. Mr Owens suggested that journalists at the Mirror newspapers might also discuss the merits of a story with more senior colleagues on the news desk before deciding whether to pursue it further. Mr Owens also said that journalists working at the Sunday Mirror had access to a lawyer in the office at all times, to whom any concerns with stories could be addressed.536 In-house lawyers might also be involved in discussions with the news desk about the merits of a given story.537
Gordon Smart, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning-Hearing9-January-2012.pdf; Dawn Neesom, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-12-January-2012.pdf 532 p53, lines 3-6, Gordon Smart, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-9-January-2012.pdf 533 p52, lines 4-7, ibid 534 pp63-64, lines 20-18, ibid 535 p52, lines 4-15, ibid 536 p60, lines 23-25, Nick Owens, www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-MorningHearing-6-February-2012.pdf 537 p61, lines 1-3, ibid
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10.24 Ms Neesom explained that it was the practice at the Daily Star to seek to corroborate all stories that were supplied by third parties.538 However, Ms Neesom also accepted that, in some cases, corroboration was not always possible, as the individuals in question were not always contactable.539 A failure to corroborate a story might not prevent its publication; this was so, particularly, if the story were unlikely to lead to the launch of legal challenge by the individual concerned. She also suggested that, in many cases, stories leaked to the newspaper by PR representatives working on behalf of particular celebrities would not be checked, given that they stories were essentially coming from the celebrity him or herself.540 The Inquiry was told that information submitted to the paper by members of the public, particularly in relation to so-called kiss and tell stories involving celebrities and other individuals with a public profile, was difficult to corroborate satisfactorily with the result that it was now less likely to be published than it once was.541 10.25 These informal mechanisms and processes for establishing the credibility of a story are also described and elaborated by Ms Marshall in her memoir, Tabloid Girl. Ms Marshall explained that when contacted by members of the public, journalists would pose a number of questions relating to that celebrity. According to Ms Marshall, the purpose in asking such questions was intended to help separate those members of the public who may possess stories of potential interest to readers from those who had contacted the newspaper in the hope of securing payment for either spurious or fabricated information. Ms Marshall explained that the questions asked by journalists in these circumstances were often informed by the specialist knowledge that they may have about the celebrities about whom they wrote.542 This knowledge may be the result of relationships built up over a number of years with the celebrities in question. Numbers 10.26 Although representatives of the press who have given evidence to the Inquiry have not provided exact figures for the number of calls received from members of the public seeking to supply stories, they were clear that the numbers were substantial and provided the source material for a significant proportion of showbusiness stories each year. Mr Smart provided some sense of the scale of the information supplied in this way, as well as the demands on journalists working on showbusiness stories which accounted for the majority of telephone calls received. 10.27 Mr Smart explained that the Bizarre column at The Sun received many thousands of telephone calls in response to advertisements in the paper calling for readers to sell their stories. He noted that the small team of journalists working on the Bizarre column produced approximately 60,000 stories each year. On average, each journalist working on that column was responsible for researching and writing up over 3,000 individual stories.543 He explained that those stories provided by members of the public were important to helping achieve those targets.
p40, lines 1-25, Dawn Neesom, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-12-January-2012.pdf 539 p41, lines 1-2, ibid 540 p40, lines 1-25, ibid 541 p25, lines, 1-13, Nicole Patterson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-12-January-2012.pdf 542 Marshall, S, Tabloid Girl, passim 543 p64, lines 10-18, Gordon Smart, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-9-January-2012.pdf
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10.28 Similarly, Mr Owens suggested that the volume of information received from members of the public at the Sunday Mirror was significant. Mr Owens said that the Sunday Mirror received dozens of stories each day from members of the public.544 Mr McMullan also reported that, during his time at the NoTW, he would receive up to 30 telephone calls each day from members of the public seeking to sell their stories.545 10.29 As a consequence, Mr Smart suggested that the volume of work required to produce sufficient copy as well as the very real limitations on resources available to journalists militated against the corroboration of all stories.546 Mr Smart said that it was the practice of the showbusiness desk only to seek to stand up the two lead stories or those which were most contentious.547 Smaller stories and those which were unlikely to cause offence or reputational damage would not normally be fully corroborated.548 Mr Owens also admitted that, given the quantities of information received from the public, it was not always possible to run full checks on stories. Judging whether a story is credible 10.30 A decision to run a story without having fully established the credibility of a source might be justified on a number of grounds. First, journalists might seek to establish some of the facts around a story but not necessarily all details, proceeding with the publication of the story on the basis of that partial corroboration. Second, as described in evidence by Mr Smart, journalists might judge that a story was credible given their knowledge of the individuals concerned or the knowledge of others individuals linked to that person.549 As an example, Mr Smart said that he decided to publish stories supplied to him by the documentary film-maker Mr Atkins, which later turned out to be fabricated, because they chimed with his knowledge of the people concerned. In response to questions about the likely veracity of a story supplied by Mr Atkins about the film maker Guy Ritchie (who it was alleged had injured himself while drunkenly juggling cutlery in a London restaurant), Mr Smart suggested he had known that Mr Ritchie had been in the restaurant in question at the time, and that he had managed to corroborate that Mr Ritchie was drunk at the time and was misbehaving. Mr Smart said that the references to juggling came only at the end of the article and were an insignificant part of a trivial story.550 However, Mr Smart did concede that it was unacceptable that somebody should be able deliberately to make up a story and that such a story should then appear in a newspaper.551 10.31 In relation to a story by Mr Atkins alleging that the singer Sarah Harding had a library full of books on astro-physics, Mr Smart suggested that, as a personal acquaintance of Miss Harding, he was well placed to judge the credibility of Mr Atkins claim. Mr Smart told the Inquiry that he knew that Miss Harding had quite an impressive library.552 He also said that he contacted Miss Hardings agent who said it wouldnt surprise me if she owned a book like that.553 Mr Smart explained that this provided sufficient verification to decide in favour of
p66, lines 13, Nicholas Owens www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-MorningHearing-6-February-2012.pdf 545 p11, s1, Mr McMullans Witness Statement was not adduced in evidence 546 pp63-65, lines 20-2, Gordon Smart, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-9-January-2012.pdf 547 p64, lines 13-18, ibid 548 p64, lines 16-18, ibid 549 p52, lines 4-16, ibid 550 p69, lines 20-25, ibid 551 p70, lines 6-10, ibid 552 p69, lines 11-12, ibid 553 p70, lines 14-15, ibid
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publishing the story, even though the fundamental allegation in the story remained untrue. It is to note that, although in both of these cases the central allegation remained untrue, the general corroboration of some of the details of the allegations by the respective agents of Miss Harding and Mr Ritchie enabled Mr Smart to stand up the story sufficiently to mitigate the risk of legal action from either party.
Risks of payments for stories

10.32 There are two significant risks associated with the advertisement by newspapers for stories: first, that it may incentivise fabrication and/or exaggeration, and second that it may encourage breaches of privacy. The Inquiry has seen evidence of both. Incentivising fabrication and exaggeration 10.33 In his evidence, Mr Atkins argued that the willingness of newspapers to pay for stories encouraged distortion and exaggeration on the part of sources and incentivised fabrication of material, particularly as the materials provided may frequently go unchecked and unverified.554 Mr Atkins also said that, in his view, given the potentially very high level of payments involved, those members of the public seeking to sell stories to newspapers were often motivated more by profit than accuracy.555 Further, he suggested that the journalists he spoke with encouraged him to exaggerate the more sensational aspects of the stories in question, in order that they might deliver more newsworthy content to their editors. Mr Atkins noted in his evidence that the more outlandish and sensational the stories he offered to the newspapers, the higher the level of payment that was offered in return.556 10.34 By way of example, Mr Atkins described to the Inquiry his attempt to sell a story about the Canadian pop singer, Avril Lavigne. Mr Atkins explained that he contacted the Daily Express and attempted to see if he might be able to interest the newspaper in a story about the singer falling asleep in the nightclub, Bungalow 8. Although the story was rejected by the journalist at the Express, that journalist suggested that the title would be more interested in running the story if Mr Atkins could come back with a story that Ms Lavigne had been found smoking crack. Mr Atkins was able to sell the original story to the Daily Mirror for 50 and the story was published without verification.557 Trinity Mirror has since accepted that it was wrong to have published the article and have published both a correction and issued an apology to Miss Lavigne. 10.35 Mr Davies explained that the Guardian had adopted the approach that, as a matter of principle, it would not pay for stories. He sought to explain that reasoning as one driven by practicalities rather than ethical, legal or financial considerations (although consideration of those issues had helped to inform the Guardians position).558 Essentially at one with Mr Leigh, the position of Mr Davies was that the purchase of information might lead individuals to fabricate material or exaggerate the extent and impact of material in order to increase the value of that information.559
p4, para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Chris-Atkins1. pdf 555 p5, para 24, ibid 556 p4, para 20, ibid 557 p4, para 19, ibid 558 p88, lines 9-25, Nick Davies, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-29-November-2011.pdf 559 p167, lines 20-25, ibid
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10.36 Mr Leigh gave a specific example of a situation in which the Guardian had maintained this position, even where the information for sale was thought to be in the public interest. He spoke of a potential story about the infiltration by a major weapons manufacturer of the Campaign Against the Arms Trade. The source of the information, who Mr Leigh and his colleagues believed to be credible, had requested payment of approximately 20,000. Mr Leigh said that whilst he believed that the story was in the public interest, he could not in the circumstance justify the sum of money requested and also because it caused concerns that relevant details had been embellished or exaggerated.560 Mr Leigh also made it clear that he did not think that it would be possible to stand up the story without the information held by his source.561 10.37 The Guardians approach is admirable and, by adopting a hard line on payments for information, the risk of fabrication and/or exaggeration is substantially limited. However, in saying that, I should not be interpreted as saying that the Guardians approach is the only legitimate approach and should therefore be adopted by all titles. As noted above, the Daily Telegraph paid a substantial sum of money for the information which led to the MPs expenses scandal and I have made no criticism of the Telegraphs decision to pay that money. The Times, The Independent and the Daily Telegraph also made clear that they would pay for stories, exceptionally, if they perceived there to be a clear public interest in the story in question. I accept that there may be many circumstances in which payments for information are justified in the public interest. 10.38 I also accept that payments for information may also be acceptable in the pursuit of pure entertainment stories or diary pages, provided that the publication does not lead to the publication of fiction, and/or the breach of privacy (see below).It is essential that titles which choose to make payments for stories (whether in the public interest, or merely because they interest the public) are fully aware of the risks involved, including the very real risks of providing an incentive for fabrication and/or exaggeration. It seems that at present, parts of the press are not sufficiently aware of those risks and do not seek to corroborate or check the stories published.
Providing an incentive for intrusions into private life

10.39 A further concern arising from the solicitation of stories for payment is that the practice provides an incentive for breaches of privacy. The kiss and tell is a prime example of this. While the evidence heard by the Inquiry suggested that traditional kiss and tell stories are declining, they are clearly not merely of historic interest and continue to appear in tabloid newspapers. Sometimes, these will involve breaches of privacy justified by the public interest,562 but other times they will not be so justified. What is clear is that the offer of payment by the individual titles is often a significant motivating factor for the (generally) women who sell their stories. The Inquiry also heard that the offer of payments to (generally) women involved in intimate relationship with well-known people can lead to conduct at least verging on the blackmail of those people: Mr Flitcroft said that one of the women with whom he was involved demanded 3,000 to keep quiet; a second woman demanded 5,000. One can only infer that those sums were close to the sums offered by the newspaper for their stories.563
pp63-64, lines 9-1, David Leigh, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-6-December-20111.pdf 561 p64, lines 2-13, ibid 562 Ferdinand v Mirror Group Newspapers [2011] EWHC 2454 (QB) 563 p1, para 7-12, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-GarryFlitcroft.pdf; pp48-51, lines 16-6, Garry Flitcroft, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Transcript-of-Morning-Hearing-22-November-20111.pdf
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10.40 In addition, the evidence emerging from the medical records sting in Chris Atkins Starsuckers (discussed above) supports the conclusion that the offer of payments for stories incentivises breaches of private life. Notable in that evidence was the discussion between Mr Atkins and a journalist from the Sunday People, in particular on how the private information could be used without revealing that it derived from medical records; the journalist suggested instead that a woman who had allegedly had a breast enlargement could be featured in a silhouette spread or a have they, havent they story. This causes some concern because it suggests that even information that a newspaper judges too private to publish in the form disclosed by the source may be used as the foundation for a different story, which is not based directly on the source material. 10.41 Further, as Steve Turner of the BPPA has noted, the request by some newspapers for readers to send photographs of people in the public eye, in return for payment, has led to the development of amateur celebrity chasing paparazzi or stakerazzi. As discussed above in Section 5 of this Chapter, this has caused significant invasions of privacy for many people in the public eye. 10.42 It is important to note that the payment for information about the private life of an individual may not always be unethical. It may also be ethical in certain circumstances to pay for a photographs provided by members of the public. I should make it absolutely clear that I am not advocating the banning of payments for information, even payments for private information. What concerns me is the degree to which some newspapers appear to rely on the provision of private information to fill their pages, and therefore actively encourage the disclosure of private information via eye-catching advertisements which offer monetary reward. This approach risks the wholesale disclosure of private information without consideration of the public interest in doing so. Even if the newspaper does not subsequently publish the disclosed information, the disclosure is itself a breach of privacy.
Conclusions
10.43 Plainly, there are circumstances where the making of payment for information for stories is clearly illegal as a matter of criminal law: the Bribery Act 2010 forbids the payments to public officials, and there is no defence based on actual or perceived public interest. The extent of such criminal activity is not a matter for this Inquiry given that it forms the basis of Operation Elveden.564 10.44 Beyond the specific confines of the Bribery Act, the paying of sources for information is not contrary to the criminal law (although it should be noted and underscored that the general principle which permits the protection of the confidentiality of sources does not justify paying money to a public official and then protecting his or her identity), although it may often be unethical, for a number of clear and obvious reasons. First, the source may require payment for the very reason that he or she has obtained the information in question by illegal, unethical or otherwise dubious means, and the payment is, as it were, the price for taking the risk. Second, the fact that a source apparently requires payment for supplying the information in question may well be an incentive for exaggeration and embellishment. Put another way, it is legitimate to argue that a source who provides information without seeking remuneration for it is more likely to be acting out of sound motives. Third, the offering of money for stories may well encourage members of the public to engage in intrusive methods in circumstances where there is no clear public interest.
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10.45 Overall, paying for information may be seen as increasing the risk of unethical if not illegal conduct by the source and, in consequence, by the journalist acting on the information purchased. In order to reduce these risks to acceptable levels, if newspapers are to continue to offer payment for stories, at the very least what is required are clear and effective internal systems of accountability and reporting, together with an acute assessment of where the public interest lies. In large parts of the press, this does not appear to have been occurring.
11. Treatment of critics

11.1 The way in which an individual, an organisation, or an industry treats its critics can reveal a lot about its culture. Openness to legitimate criticism is the hallmark of many thriving organisations and industries. By contrast, defensiveness and intimidation in response to legitimate criticism tends to be a feature of closed-minded and entrenched industries. The phone hacking scandal as a whole revealed that large parts of the press tended to the latter: over the course of five years, much of the press showed a complete unwillingness to engage with those critics who pointed to evidence of unlawful and unethical practices within one newspaper, and to practices which are likely to have taken place in others too. Indeed, rather than engaging with those critics, much of the press subjected them to intense scrutiny, occasionally amounting to intimidation. The clearest example of this is the approach adopted by NI in response to high profile phone hacking critics. As discussed above,565 lawyers bringing claims against NI were subjected to ongoing surveillance, commissioned with a view to trying to force them to remove themselves from the litigation. Similarly a member of the CMS Select Committee was placed under surveillance during its investigation of phone hacking. Mr Webb confirmed that he was instructed to place Tom Watson MP under surveillance for a period of a week, trying to prove an alleged affair (which was not in fact taking place) in order to pressure Mr Watson to step back from the phone hacking issue. Another member of the Select Committee Mr Bryant, told the Inquiry of his experience of direct intimidation. In early 2011 he was called by a friend who informed him that two people close to Rupert Murdoch had warned that it would be wise for Mr Bryant to desist from the phone hacking investigations, or Mr Murdoch would get him, in time. While there is not the slightest evidence to suggest that Mr Murdoch had in fact made any threats, there is no reason to doubt that a phone call between Mr Bryant and his friend took place and that something which could be construed as a threat purporting to be from Mr Murdoch was passed on. Mr Bryant said that further threats were passed on in March 2011.566 Mr Grant, who was seen as a figurehead of the Hacked Off campaign, was also the subject of threats. The mother of his child was called by an anonymous caller when he was on television discussing the phone hacking issue and told to Tell Hugh Grant to shut the fuck up!567 These examples of surveillance and intimidation in the context of the phone hacking scandal are particularly egregious. It seems clear that certain people within the NoTW, or, perhaps, unsought supporters, were determined to prevent many of the facts discussed at elsewhere568 Chapter 4 from being revealed, and so resorted to deeply unethical methods to prevent that from happening. However, although the evidence as a whole did not suggest that the use
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Part F, Chapter 4 p2, para 422, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-by-ChrisBryant-MP.pdf 567 p1, para 3-5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Supplemental-Witness-Statementof-Hugh-Grant.pdf. 568 Part F, Chapter 4
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of direct threats and the like by the press was commonplace, the limited evidence of those methods in the context of the phone hacking scandal was consistent with evidence given by a number of the Core Participants complaining of press misconduct, who spoke to a general atmosphere of intimidation by parts of the press. The evidence of that atmosphere came in two forms: first, evidence of the press launching direct personal attacks on critics; and second, evidence from a wide range of witnesses of a failure to speak out or criticise, litigate, or seek assistance from the regulator, for fear of the personal consequences. 11.5 The Inquiry saw numerous examples of parts of the press adopting attack as the best form of defence against critics. When Mr Peppiatt resigned from the Daily Star and published his resignation letter in the Guardian, he was subjected to a campaign of harassment and threats. He received phone calls and text messages telling him, for instance, he was a marked man until the day you die, or RD will get you, which he understood to be a reference to Daily Star proprietor Richard Desmond: again, there is no evidence that Mr Desmond was personally responsible for any such communication. An individual with long established links to the tabloid world has apparently been warned by the police in connection with the harassment of Mr Peppiatt.569 A more conventional example of the attack by a newspaper of a critic is the Daily Mails story about Mr Grant and his alleged mendacious smears, which is discussed in detail above.570 That article followed several others attacking and criticising Mr Grant, partly in relation to his role as spokesperson for Hacked Off. One prime example included an ad hominem attack par excellence: the article sought to undermine Mr Grants arguments in favour of press regulation by attacking his character, describing him as an oleaginous, womanising loungelizard who was a lonely, bitter man consumed with hatred of the media who helped make him a star.571 Similar articles were written to discredit Mr Coogans arguments in favour of press reform.572 The Suns response to Mr Browns allegation that the newspaper had unlawfully accessed his sons medical records was a further example of attack as defence.573 Witnesses who had pursued litigation against newspaper titles gave evidence that parts of the press sought retribution against those who brought claims against a newspaper title. Mr Thomson, said that a successful action invariably led to retribution. He explained:574 Ive acted for Naomi Campbell, Loreena McKennitt, Sienna Miller at the time she was complaining she was chastised for complaining, for whingeing about her privacy. Max Mosley was every possible claimant, whether its a footballer, they have all been chastised for complaining, for going to law to get remedies, and its a sort of tactic to undermine their vindication by trashing the claimant. Of course they can comment on the judicial process in the sense of, Oh, well, I dont think that injunction should have been granted, but this is my opinion,
pp40-43, lines 3-15, Richard Peppiatt, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Morning-Hearing-29-November-2011.pdf 570 Part F, Chapter 5 571 http://www.dailymail.co.uk/femail/article-2056916/Hugh-Grant-baby-Hypocrisy-new-fathers-tawdry-self-love.html; http://www.dailymail.co.uk/debate/article-2013285/News-World-How-Hugh-Grant-Steve-Coogan-pose-moral-arbiters. html; 572 http://www.dailymail.co.uk/news/article-2013316/Steve-Coogan-phone-hacking-scandal-sickening-case-hypocrisy. html 573 Part F, Chapter 7 574 pp61-63, lines 22-10, Mark Thomson, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Morning-Hearing-24-November-2011.pdf
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my suspicion is: well, if they go to law, well give them a good trashing and it will deter other people from doing the same. Thats my view about the strategy behind it because it happens, as I said, almost invariably. Lets make it difficult for them, lets deter others, lets trash them and maybe other people will think long and hard about doing it in future. 11.9 Mr Shear gave similar evidence in relation to one of his clients who had sued for libel in respect of allegations of homosexual activity. Having succeeded in the libel action, the client became a target of interest for the newspaper and the victim of what Mr Shear described as a revenge-fuelled fervour, and a determination to prove something that was damaging to his reputation or to his private life as part of the quid pro quo of having the temerity to take on the national media in those circumstances.575
11.10 Ms Rowling gave an example of what might be thought of as small-scale retribution by the press. In 2005, she had complained to the PCC in respect of the Daily Mirror publishing her address. A matter of five days after the complaint was made, the Mirror published a photograph of Ms Rowlings daughter as a baby, despite the fact it was well known that she was fiercely protective of her childrens privacy and objected to the publication of their photographs. Her view was that the Daily Mirrors decision to publish the photograph was a deliberate act of spite in response to her complaint.576 11.11 Mr Mosley provided a considerably larger scale example when describing the course of his privacy litigation against the NoTW. In response to Mr Mosleys application for an injunction to prevent (re)publication of the offending article and video, and while awaiting judgment, the NoTW splashed another front page article concerning the events in question under the heading MY NAZI ORGY WITH FI BOSS. Further, for reasons which to my mind could never do them credit (whatever other justification might be advanced), the NoTW sent a copy of the video to Formula 1 bosses, presumably in what transpired to be an unsuccessful attempt to get Mr Mosley dismissed from his position.577 11.12 In the light of behaviour of this sort, it is not, perhaps, surprising that a number of witnesses gave evidence to the effect that they avoided litigation or complaints: it seems that many people in the public eye would rather endure breaches of privacy or small libels than conduct litigation, face the repetition of the offending story and endure the aggressive press response that comes from it. 11.13 Mr Grant said to the Inquiry: to speak out and criticise is to invite a terrible press storm on your head.578 As a consequence, his evidence was that he had avoided litigating or complaining about unethical press practices, except in the most serious cases. Mr Coogan gave similar evidence. He said:579 if you stick your head above the parapet or you criticise the papers or you make a point of taking action, then theyll come after you, you know. Insofar as my legal action is concerned, I was I was advised by my publicists that they actually said
pp67-68, lines 8-24; pp69-72, lines 21-12, Graham Shear, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/12/Transcript-of-Morning-Hearing-21-November-2011.pdf 576 p68, lines 14-23, JK Rowling, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-24-November-20112.pdf 577 p5, para 15, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Max-Mosley. pdf 578 p67, lines 22-24, Hugh Grant, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-21-November-2011.pdf 579 p27, lines 5-21, Steve Coogan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-22-November-20111.pdf
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to me, Do you When I was considering taking action against News International, my publicists said to me, Do you really want to make enemies of these people? By implication well, the inference being that if and when I asked them to elaborate, they said, Well, in the future if they decide to run another story, we can use it as a bargaining chip. We can say that you could have taken legal action and you didnt, therefore why dont you drop the story? But when they said these people, they meant that the inference was clear, that if you make life difficult for them, they will use their newspapers as a weapon against you. 11.14 Ms Church580 and Ms Gascoigne581 had, for significant periods, adopted the same approach, avoiding litigation and avoiding complaint except in the most serious circumstances, in order to avoid the aggressive and unpleasant response with which a complaint would be met. Ms Churchs evidence indicated that aggressive attacks have a corollary: preferential treatment for those who cooperate with newspapers. She recalled that when she was asked to sing at Rupert Murdochs wedding in 1999, her manager was offered the choice between $100,000, or no fee but favourable treatment in the NI press. Her manager advised her to accept no fee.582 11.15 The evidence as a whole highlighted a point I made during the course of the Inquiry. The press are in a unique position as they carry a very large megaphone: if people cooperate, that megaphone can be used to enhance careers; for those who complain or challenge titles, the megaphone can be used to destroy them. Whereas complainants or litigants against individual titles have a limited forum to air their complaints, the press have a ready and captive audience of hundreds of thousands if not millions of readers who will read their response. As a former NoTW news editor noted in an unguarded moment, the megaphone can be used to destroy peoples lives.583 11.16 Evidence of aggressive attacks on press critics, and self-censorship by potential critics, extended beyond the celebrity world and into the judicial and political field as well. In response to the Max Mosley judgment, a number of tabloid newspapers launched an aggressive and personal campaign against the judge in the case, Mr Justice Eady.584 In his speech to the Society of Editors, Mr Dacre described his judgments as arrogant and amoral and criticised his subjective and highly relativist moral sense.585 Although Mr Dacre stated that he had attacked the judgments and not the man,586 some might be forgiven for reading the speech differently, particularly when reading it alongside Daily Mail articles such as, As cold as a
pp45-46, lines 21-3, Charlotte Church, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Afternoon-Hearing-28-November-20111.pdf 581 pp66-67, lines 17-5, Sheryl Gascoigne, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Morning-Hearing-23-November-20111.pdf 582 By letter received 18 October 2012, Charlotte Churchs then manager wrote to the Inquiry challenging this account of the facts in order to restore his own unblemished professional reputation in the face of the continual aspersions cast upon it. Said to have been prompted by an article on 5 October 2012, it is surprising that he did not do so after the evidence was first given (28 November 2011) when it may well have been appropriate to allow the matter to be ventilated further. As it is, Ms Church does not accept the account provided by Professor Shalit and I am not in a position to take the matter further. The Report consists of a review and an analysis of the evidence which was given, rather than that which was not 583 Burden, P, Fake Sheikhs and Royal Trappings, front page 584 pp27-28, para 133-138, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-ofMax-Mosley.pdf 585 http://www.pressgazette.co.uk/node/42394 586 p12, lines 19-21, Paul Dacre, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-6-February-20121.pdf
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frozen haddock, Mr Justice Eady hands down his views shorn of moral balance....587 The key point, it seems to me, is that if Mr Dacre and others had a strong objection to the development of protection of a right to privacy in UK law, they were perfectly entitled to express that objection in forceful terms. But by directing the rhetorical fire at an individual judge who was seeking to apply the principles set down by higher courts and whose judgments were capable of challenge on appeal, that objection takes on the appearance of being aggressive and intimidating. Furthermore, it was an attack to which, by judicial convention, Mr Justice Eady was unable to respond. 11.17 Similarly intimidating and aggressive attacks have been directed at politicians who have criticised aspects of the press. Rather than engaging with the arguments made by the critics, parts of the press have engaged in ad hominem attacks. A prime example is the treatment of critics of Page 3 who have been labelled variously as fat, ugly harridan, battleaxe and jealous of beautiful women. Their arguments have been described as potty, senseless and furious rants.588 11.18 However, the preponderance of evidence suggests that overt intimidation of politicians by the press is rare. What is far more widespread is a self-restraint by politicians fearful of criticising the press. The evidence received from a number of politician witnesses indicated that fear of press attack was a significant factor in the failure of successive Governments to tackle the issue of press behaviour, notwithstanding a recognition that better regulation was required. This is discussed in greater detail elsewhere, but for the purposes of this chapter it worth noting Lord Mandelsons view that the Blair and Brown Governments were cowed by the power of the press and the threat of a hostile response to any attempts to address press regulation.589 The Rt Hon Ed Miliband agreed that fear played a significant part in the failure to address press regulation during the Blair and Brown years.590 When Mr Blair attempted to articulate his concerns about some aspects of the culture of the press in a speech delivered prior to his departure from office,591 the almost universally critical press response, including a number of personally directed attacks, appeared to confirm those fears.592 As Mr Paxman noted in his MacTaggart lecture in the same year:593 I thought the way we responded to Tony Blairs speech was pretty pathetic. Again, lets be frank. These two trades, politics and media have a great deal in common. Both deal in words and images, both involve a contract with the public based upon fairly explicit promises By and large, the response to Blairs attack just pressed the F12 key. Yah booh. Youre a politician. Were media yahoos. Get over it.
http://www.dailymail.co.uk/news/article-1038478/QUENTIN-LETTS-As-cold-frozen-haddock-Mr-Justice-Eady-handsviews-shorn-moral-balance-.html 588 See above at para 8.20 589 p9, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-LordMandelson.pdf. Lord Mandelson slightly pushed back from this in oral evidence. 590 p28, lines 12-24, Ed Miliband, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-12-June-2012.pdf 591 http://news.bbc.co.uk/2/hi/uk_news/politics/6744581.stm 592 http://www.dailymail.co.uk/news/article-461603/The-magnificent-self-delusion-Mr-Blair.html; http://www. telegraph.co.uk/comment/telegraph-view/3640592/Blairs-last-enemy-freedom-of-speech.html; http://www.guardian. co.uk/commentisfree/2007/jun/13/media.pressandpublishing; http://www.thesun.co.uk/sol/homepage/news/sun_ says/236972/Vital-freedom.html 593 http://www.telegraph.co.uk/news/uknews/1561287/In-full-Jeremy-Paxmans-MacTaggart-Lecture.html;
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11.19 Assessed as a whole, it is appropriate to conclude from the evidence that a practice has existed within parts of the press, at certain times and in certain circumstances, of seeking to intimidate or seek retribution against complainants and critics. While that approach may not have been widespread, it has been sufficiently prevalent to create a generalised fear amongst those in the public eye of criticising or challenging the press owing to concerns about personal attack and vilification. I repeat that the press is entitled to hold whatever opinions it wishes and, subject to defamation, is equally entitled to express them: it cannot complain, however, if the inference is drawn that this practice is a form of special pleading and that the attack follows a challenge to the way in which they go about their business.
12. Complaints handling

12.1 An issue related to the way in which the press treats critics is the manner in which it deals with those who make complaints in relation to specific stories. The Inquiry heard a great deal of evidence of good practice on this issue, in particular in relation to the use of readers editors at a number of titles. But there was also substantial evidence of poor practice, showing first, that the complaints process can be (sometimes, it was thought, deliberately) protracted, complicated and expensive; second that there is a strong reluctance in parts of the press to apologise even when it is not in dispute that a story was incorrect; and third, that apologies, retractions and corrections are frequently given substantially less prominence than the offending article and therefore fail to satisfy those who are aggrieved. Although evidence was heard on these issues from many witnesses, I focus only on three examples which I treat as case studies: the identity of the titles concerned is not to the point. The first example was the response of a number of newspapers to complaints made by the McCanns in light of defamatory reporting of the circumstances of their daughters disappearance.594 Although some of the narrative has already been described,595 it bears brief repetition here. In September 2007, the McCanns solicitor Angus McBride met with all the editors of the national newspapers to convey the McCanns concerns about the defamatory reporting of Madeleines disappearance and the harmful impact this reporting was having on the search for her. That first meeting appeared to have no effect and, after continuing libellous reporting by a number of daily newspapers, further meetings were arranged between Mr McBride, Clarence Mitchell and the editors responsible. Those further meetings also appeared to have no effect and the defamatory reporting continued. On 26 September 2007, a solicitors letter threatening libel proceedings was sent to those newspapers which appeared to be the worst offenders. That letter, and a further letter sent on 10 October 2007, appeared to have no impact on the continuing libellous reporting.596 In January 2008, the McCanns representatives sent a formal letter before action in advance of a libel claim to both the Daily Express and the Daily Star newspapers. Notwithstanding the fact that the newspapers were aware they had no clear factual basis for any of the libellous stories published,597 the Express Group wrote that they were not willing to publish an apology for the libels, but were willing to offer the McCanns a platform to tell their side of the story, and offered them an exclusive interview and photo-shoot with OK! Magazine. Unsurprisingly, the McCanns rejected the (astonishingly misjudged) offer. As Dr Gerry McCann wrote:598
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pp9-13, para 53-80, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-GerryMcCann.pdf 595 Part F, Chapter 5 596 pp9-13, para 53-60, ibid 597 Section 6 598 p11, para 68, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-GeraldPatrick-McCann.pdf
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I found it simply breathtaking that they would think it appropriate to offer us interviews or other coverage in their own newspapers that they would subsequently make money from, as an appropriate remedy for the distress and hurt they had caused. 12.4 Although the Express Group subsequently published what they described as an unprecedented front page apology to the McCanns, that was not matched by their apology to the friends of the McCanns who had also been falsely accused (on the front page) of covering up the truth about Madeleines disappearance: their apology in the Daily Express was found on page five. The McCanns also brought proceedings against Associated Newspapers Ltd (ANL), on the basis of defamatory coverage in the Evening Standard and Daily Mail. The claim was settled with a substantial payment to the Find Madeleine fund, and an apology in the Evening Standard. The Daily Mail offered the McCanns free advertising for the Find Madeleine fund, but refused to apologise essentially on the basis that the defamatory stories published by the title had been balanced with a number of favourable reports about the McCanns. Unsurprisingly, the McCanns were disappointed by the newspapers stance, but chose not to continue a protracted dispute.599 The second example of poor practice in responding to complaints is Neil Morrisseys experience of a complaint against the Daily Mail.600 On 19 March 2011, the Daily Mail had published an article alleging that Mr Morrissey had been banned from a pub in France for drunken and rowdy behaviour. The story was untrue, the Daily Mail had been told in advance of publication that it was untrue, and the Daily Mail eventually accepted it was untrue and apologised. But the process leading to that apology was unnecessarily protracted. On 23 March 2011, immediately after publication, Mr Morrisseys lawyers wrote to ANL stating that if an immediate apology and retraction were published, no claim for damages would be issued. That letter and a subsequent one went unanswered for a month. ANL eventually replied on 21 April 2011 refusing to publish an apology or retraction even though it appears that they did not claim in terms that the story was true, insisting instead that the story presented Mr Morrissey in a sympathetic light. Mr Morrissey issued a libel claim on 21 June 2011. A further six weeks passed before, on 5 August 2011, the Daily Mail accepted that the story was untrue and made an offer of amends. Although ANL claim that it was only then that it became clear that the story was untrue,601 it is difficult to understand why it took almost five months to reach this conclusion. Once the Daily Mail accepted its error, the parties entered negotiations to agree the format and placement of an apology. The original article was published on page 19, took up a full page of the Daily Mail, was around 600 words long and included four large photographs. Mr Morrissey originally requested a 160 word apology under its own headline, but entered into negotiations with the Daily Mail over wording.602 After six weeks of negotiations, the Daily Mail published a 67 word unilateral apology on its corrections and clarifications column on
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p13, para 80, ibid pp4-10, para 10-40, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-on-behalf-of-NeilMorrissey.pdf 601 p2, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/08/Submission-from-RPC-regarding-ShawMorrissey-and-Mouse.pdf 602 p2, para 8, ibid
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page 2.603 Mr Morrissey complained that this apology did not have anything approaching the same prominence as the offending article. 12.10 The Inquiry heard evidence from a number of witnesses with regard to correction and clarification columns and their benefits and disadvantages. Although I accept that there are significant benefits, a legitimate criticism that needs to be addressed is how to distinguish an apology for defamation or breach of privacy from simple factual corrections or clarifications. The apology to Mr Morrissey was published alongside a correction of the price paid by the NHS per loaf of gluten-free bread, and it seems reasonable in that context for Mr Morrissey to complain that the placement of the apology devalued it. In my view, an apology should at least be headlined with apology or sorry or something to clearly mark it out as something distinct from a simple factual correction. In the absence of such a clear marker, it is unsurprising that some witnesses inferred that newspapers seek to bury their apologies. 12.11 The third example was provided by the organisation Carbon Brief, and evidences an inadequate response to complaints of inaccuracies that harm the public interest.604 Carbon Brief noted a series of articles in the Daily Mail which suggested that there was an average 200 green tax on household energy bills, which accounted for 20% of total household energy costs. The claim was inaccurate (the best accurate figure was around 80 or 8%), but was being used to justify a number of opinion pieces critical of the governments green agenda. Carbon Brief was concerned that the error fed into the Mails editorial line on the matter, which can be summarised as a campaigning stance against green policies to encourage renewable power or energy efficiency.605 12.12 Immediately after publication, Carbon Brief wrote to the Daily Mail to identify the error, but received no response. A subsequent complaint to the PCC was defended by the Daily Mail by reference to a 2008 report by the think-tank Civitas. However, that report did not in fact support the Daily Mails 200 or 20% claim. Accordingly, the Daily Mail published a correction some three months after the claim had first appeared, and after it had been repeated many times in other titles.606 12.13 That was not the end of the matter. Less than two weeks after the correction had been published, the 20% claim was repeated in the Mail on Sunday. Carbon Brief wrote to the Mail on Sunday to identify the error but, once again, received no response. Carbon Brief therefore made a second complaint to the PCC. Pending the resolution of that complaint, and despite the fact the Mail on Sunday was aware of both the PCC complaint and the previous correction in the Daily Mail, it published a further article making the same claim, saying that the country is overrun with wind farms and energy costs are skyrocketing, with green stealth taxes adding 15 to 20 per cent to the average domestic power bill. The Mail on Sunday subsequently published a correction, but then, two months later, once again repeated the claim.607 12.14 Carbon Brief summarised its complaint in the following bullet points:608
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This has been a time consuming and involved process, over a fairly straightforward factual inaccuracy.
Appendix 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-on-behalf-of-NeilMorrissey.pdf 604 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-Carbon-Brief.pdf 605 p1, ibid 606 pp2-4, ibid 607 pp4-5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-Carbon-Brief.pdf 608 p5, p9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Submission-by-Full-Fact.pdf
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The MoS repeated a figure that had already been corrected twice while there was a PCC complaint about the figure with the paper. Despite two successful PCC complaints about a specific statistic and published corrections in both the Mail and the Mail on Sunday, the Mail group are still repeating the figure. Either the Mail groups internal processes for noting complaints are inadequate, or they do not take PCC negotiated corrections seriously.
12.15 To those bullet points might be added a fifth point, namely that complaints to the PCC would never have been required had the titles replied to the original letters sent by Carbon Brief direct to the newspapers. Accordingly, the example raises concerns about the ability, or willingness, of some newspaper titles to respond to complaints made direct to the newspaper by readers. Sensibly, most complaints should be resolved at that level without the need to refer a complaint to the regulatory body. But the Carbon Brief example suggests that, in some cases, some newspapers ignore complaints entirely, or delay in responding for significant periods, until the regulator, or the courts, are involved. 12.16 The three examples above provide evidence of each of the three specific concerns raised by witnesses in relation to inadequate complaint handling by parts of the press: i) the delay and expense of bringing a complaint, ii) the reluctance of parts of the press to apologise or correct errors, and iii) the failure to give due prominence to apologies and corrections.
Unnecessary delay and over-complication of the complaints process 12.17 Full Fact provided the Inquiry with evidence of all three issues. In relation to the delay occasioned by parts of the press when dealing with complaints, Full Fact suggested that some newspapers deliberately complicate and draw out the complaints process as a tactic to avoid making apologies and corrections. They wrote that little effort is made on the part of newspapers to avoid making the process extremely awkward and time consuming for complainants.609 610 Will Moy spoke of their regular experience as follows:611 Where the first offer you get is, Well amend the headline online only. Then you get the offer of Well print a letter from Full Fact disagreeing with our article but we wont change the article or admit there was anything wrong with it. Then you get page 12, then you get page 6, then you get page 4, then you get page 2. All of this, rounds and rounds of correspondence, weeks between them, takes forever, deeply tiring. And all of this, of course, after the actual inaccuracy has been accepted. 12.18 A specific example of apparently deliberate awkwardness was Full Facts evidence that on three occasions, after a long process of negotiating agreed corrections, and after having reached agreement, the Daily Mail had contacted the PCC to seek changes to the agreement on the night before publication. The organisation noted:612
p9, ibid Mr Moy overstates the position in suggesting that this is standard practice within newspapers. The Inquiry has received much evidence to contrary effect: see, for example, the decision of the Court of Appeal in KC v MGN Ltd [2012] EWCA Civ 1382 and the earlier decision of Eady J in Bowman v NGN [2010] EWHC 858 (QB) 611 p63, lines 5-18, William Moy, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-8-February-2012.pdf 612 p9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Submission-by-Full-Fact.pdf
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This means unilaterally reopening the complaints process on an evening before publication, when complainants may not be in a position to respond immediately. Indeed, this means demanding a response time from the complainant that we never receive from newspapers themselves. That this has been done on three separate occasions over four complaints to our knowledge, all by the same newspaper and not just to Full Fact, gives such moves the impression of a considered tactic to disrupt the process. 12.19 Although it is not necessary to reach a conclusion as to whether the Daily Mails approach on the three occasions cited was part of a deliberate tactic, the simple fact is that it is part of a general tendency within parts of the press to delay and complicate what ought to be a reasonably simple process of prompt correction and apology. Mr Snow gave evidence of what he considered was unnecessary argument with ANL over the precise format of an apology to be published after he had been defamed. He said:613 The confession was that it was completely untrue and they accepted it was untrue and they retracted it and apologised. The apology was 1.5 inches by a column and then the wrestling was over whether there should be a photograph of me above it. They didnt want the photograph because that would draw attention to the apology. Actually, in the end, we got the photograph, but I mean, this is pathetic. Wrestling over 1.5 inches when you have had five pages of something which the paper itself deems untrue? That is not the way forward That is the process we have at the moment. That is justice; that is the way any reader who or any person offended by a paper who has something wrong gets redress. Reluctance to publish corrections and/or apologies, even where error is clear 12.20 In relation to a reluctance within some titles to publish apologies and/or corrections, Full Facts churnalism project was instructive.614 Along with Mr Atkins, Full Fact published a number of fictional press releases that were adopted and published by newspapers without sufficient checking. One, published in the Metro, told of a fictional stammerer who had decided to undergo unorthodox speech therapy to cure his stammer in time for Valentines Day. Another, published by the Daily Mail on the basis of a Facebook page, reported claims that the Prime Ministers new cat was actually stolen from a council estate in South London. Full Fact informed the newspapers that they had published hoax stories but both refused to publish corrections or clarifications, despite extensive correspondence. Full Fact noted:615 it once again raises the question of why newspapers are so adversarial on the issue of acknowledging errors at all. It is extremely rare for us to submit a complaint about a significant factual inaccuracy that is not initially dismissed by the paper. Even in cases where papers have been indisputably wrong (such as over a basic error leading to stories reporting life expectancy on a Merthyr Tydfil estate was lower than in Haiti) several rounds of correspondence over several weeks have been required to get a worthwhile correction printed.
pp26-28, lines 4-5, Jon Snow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-25-June-2012.pdf 614 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Fifth-Submission-by-Full-Fact.pdf 615 p8, ibid
613
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One of the problems at the heart the issue is not that papers get their facts wrong or indeed borrow heavily from press releases, but an unwillingness to acknowledge and act on the problems that may arise as a consequence. Given the time and resource pressures in the media it is inevitable that mistakes get made, so why not be more willing to acknowledge and correct them when they are pointed out? Perhaps it would make the embarrassment from these kind of hoaxes a little easier to swallow. Lack of due prominence 12.21 The identification of a reluctance to publish apologies and/or corrections feeds into the third issue identified: lack of due prominence when an apology or correction is made. Full Fact616 and the Media Standards Trust617 gave evidence on this point. Considered together their evidence suggests that it is extremely difficult to find any adjudications, apologies or corrections that are given equal prominence as the offending article. It is of course correct that equal prominence is not what is required by the Editors Code, but it is also clear that what parts of the press consider to be due prominence is not the same as what victims of inaccuracies, defamations and breaches of privacy consider it to be. 12.22 Ms Mills,618 Ms Gascoigne,619 Ms Miller,620 Mr Coogan,621 Mr Snow622 and Ms Diamond623 all spoke of the insufficient prominence with which apologies were published after complaints of breach of privacy or libel. They were consistent in complaining that corrections or apologies were nowhere near as prominent as offending articles and noted that the damage to reputation or privacy caused by a front page splash, or full page article, could not be remedied by the publication of a two inch apology within a corrections and clarifications column, or elsewhere in the newspaper. 12.23 Exemplifying this problem was The Suns editors evidence (supplemented by a further letter to the Inquiry on behalf of the Sun)624 in relation to a PCC adjudication relating to The Suns article entitled Boy, 12, turns into girl. The article was held by the PCC to be inaccurate and a breach of the girls privacy. The original article had appeared on the front page of the newspaper, with a further full page on page 5. The adjudication was published on page 6, at the request of The Sun and agreed by the PCC, in a narrow column on the right of the page, adjacent to an eye catching article headlined 1m Baby P Bungle. That the adjudication was published further back in the newspaper than the article was directly contradictory to Mr Mohans written evidence, where he had written: Corrections are never placed further back
pp8 -12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Submission-by-Full-Fact.pdf pp22-23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Submission-by-MediaStandards-Trust.pdf 618 pp91-92, lines 7 15, Heather Mills, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofMorning-Hearing-9-February-2012.pdf 619 pp80-81, lines 4 6, Sheryl Gascoigne, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Morning-Hearing-23-November-20111.pdf 620 p32 lines 15 24, Sienna Miller, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-24-November-2011.pdf 621 pp34-38, lines 2 4; pp48-51, lines 13-7, Steve Coogan, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Transcript-of-Afternoon-Hearing-22-November-20111.pdf 622 pp24-28, lines 11 5, Jon Snow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-25-June-2012.pdf 623 pp57-59, lines 17-25, Anne Diamond, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Afternoon-Hearing-28-November-20111.pdf; para 13-18, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Witness-Statement-of-Anne-Diamond1.pdf 624 p57, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/11/Witness-Statement-of-Alan-Walls.pdf
617 616
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in the newspaper than the original article, except for those connected with page one stories where the correction is published on page two.625 Nonetheless, Mr Mohan appeared to defend the prominence claiming that it was one of the longest adjudications ever published.626 That may be so, but if Mr Mohan was claiming the publication of this particular adjudication as an example of due prominence, that causes significant concern. 12.24 Mr Blairs evidence indicated the potential importance of due prominence in correcting errors in political reporting. He recalled the front page vehemence with which parts of the press had attacked Lord Mandelsons alleged lies in relation to the Hinduja passport scandal and compared that vehemence to the relative lack of publicity given to the subsequent official report which cleared Lord Mandelson of any wrongdoing.627 12.25 Although some editors and journalists resisted the suggestion that apologies and corrections were buried within newspapers, a number accepted that there was at least a perception that this was the case. Rebekah Brooks noted that, in her experience, correcting inaccuracies does not cost a great deal for the press, but it is given low priority and minimal projection and she accepted that the NI newspapers were as much at fault for this as others.628 She said:629 one of the biggest complaints I used to get, not necessarily about my own newspaper but about the press in general, was the prominence of apologies when an inaccuracy had taken place The page 37, one paragraph type thing. 12.26 In light of Mrs Brooks evidence, it was somewhat ironic that James Murdoch complained of a lack of prominence of apologies in articles concerning NI. He said:630 Look, I think its you know, I have personal opinions about this, and actually, as the subject of a lot of press coverage over the last year myself, to be honest, Ive had cause for reflection, and I have been concerned with things like the ability to make a case, the ability to reply. I have been concerned with things like prominence of corrections. The Guardian alone I think has had to correct stories about News Corporation over 40 times in the last ten months or so, none of which seemed to have the same prominence as the original story, and that worries me. I think clearly it shows that somewhere in that code strengthening needs to occur with respect to accuracy and creating accountability there, but you know, I think this is going to be a matter for this Inquiry and for the industry. 12.27 Former PCC Chairman Sir Christopher Meyer acknowledged that during his tenure between 2003-2007 there was a problem ensuring that corrections and apologies were given due prominence; his view was that the problem remained today. In large part, he accepted that the problem lay with the fact that the PCC had no power to direct where corrections and apologies should appear, and no power to direct their size and prominence.631
p4, para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-DominicMohan.pdf 626 pp59-61, lines 16-23, Dominic Mohan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Afternoon-Hearing-9-January-2012.pdf 627 pp14-15, lines 1-18, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-28-May-2012.pdf 628 p17, para 99, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Second-Witness-Statement-ofRebekah-Brooks.pdf 629 p59 lines 10-16, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-11-May-2012.pdf 630 pp65-66, lines 13-2, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcriptof-Afternoon-Hearing-24-April-2012.pdf 631 pp56-59, lines 15-5, Sir Christopher Meyer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-31-January-2012.pdf
625
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Conclusion
12.28 Looking at the evidence in the round, it appears that parts of the press have adopted an adversarial approach to complaints, whereby even when clear errors have been identified, there has been a failure to provide swift and complete remedies to complainants. Plainly, there are common themes here with the section of the Report addressed to the treatment of critics [see section 11 above]. Parts of the press have, at times, sought to avoid corrections and apologies and have sought to minimise the prominence of those corrections and apologies. I agree with Sir Christopher Meyer that any new regulator must address this issue and must have the power to order editors where, when, and how they should publish apologies, retractions, corrections and/or adjudications.
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Chapter 7 ConClusion
1. Introduction
1.1 The foregoing review of just a representative sample of the vast quantity of evidence submitted to and considered by the Inquiry has served to identify a real problem within the culture, practices and ethics of the press. In setting out this evidence at some length I have provided my own evaluation of it, but I believe that I have done so in such a way that anyone reading this Report with care will be able to reach his or her own view. I need to re-emphasise a point which I have already made more than once. There is a difference between saying that there is a real problem within the press (including a section of the press) on the one hand and saying that this problem is so widespread that it infects the majority of press practice on the other. I am not saying the latter. The unethical practices to which the evidence points afflict only a section of the press, and even then not for the majority of the time. Furthermore, in cases where the relevant section of the press has been identified, I am not to be understood as criticising all desks or departments within any individual title, still less the majority of journalists working there. The evidence points to a less sweeping conclusion, but one which is nonetheless a cause for significant concern. Although unethical practices have been perpetrated by or within some parts of some titles only for some of the time, the coverage or strength of the evidence I have read, seen and heard is more than sufficient to indicate the presence of a culture (or sub-culture the precise terminology does not matter) which subsists and needs to be addressed. The term culture, and the approach I should adopt, has been subjected to lengthy analysis and critique in some of the submissions the Inquiry has received. I have considered all of these submissions with great care. Whereas this Report is hardly the place for an in depth sociological debate into the meaning of complex terms, my approach may be simply stated. I have focused in particular on unethical practices: these fall four-square within my Terms of Reference. My conclusions as to an unethical culture, or sub-culture, flowing from the identification of such practices are necessarily inferential. The evidence has very often demonstrated the existence of identical practices in more than one title, and on many occasions across several titles. The prevalence of such practices will vary as between titles, and the Inquiry has in any event largely avoided an attempt to carry out a quantitative as opposed to a qualitative evaluation. But what this Inquiry has focused on throughout is the presence of practices which are more than isolated, coincidental or accidental both within individual titles and, viewing the matter more widely, a relevant section of the press. In other words, evidence of a culture within a title, or a part of a title, which is common to, similar, or identical within another title, or part of another title, can be regarded as evidence of a culture within a section of a press; and, furthermore, of a problem which needs to be addressed (not least by the provision of an appropriate regulator) by the press as a whole. Another highly relevant factor is that it is not too difficult to discern common themes and patterns within the categories of unethical conduct described and evidenced earlier.1 These categories are already to some extent artificial, and they undoubtedly overlap. Take the example of phone hacking. True, it is illegal, and many forms of subterfuge are not; but on analysis it shares much in common with other forms of unethical conduct which the Inquiry
1.2
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has examined. Surveillance of targets in search of a story full of prurient details but devoid of public interest, and the blagging of information to support a similar sort of story, are in essence not vastly different in moral as opposed to technological terms from listening into a voicemail in pursuit of similar tittle-tattle. Furthermore, hovering above all of these practices are additional matters of commonality: in particular, a failure to respect the personal autonomy of individuals, and a concomitant tendency to treat celebrities in particular as objects rather than as individuals, because they have sold any entitlement to privacy; a tendency to regard the public interest as a form of trump card, on the basis that the work newspapers do is right, because they are surrogates for their readers and are exercising the right to free speech; and, in more extreme cases, a propensity to regard journalism as above the law, because newspapers are the ultimate guardians of both free speech and the public interest. 1.5 On this approach, one may even more readily detect a problem, in the form of a collection of similar practices, which may fairly be described as cultural. Plainly, my approach is somewhat in contrast with the thesis that some have advanced that the real problem within the culture, practices and ethics of the press is, or rather was, that of phone hacking which is therefore sui generis or special, and peculiar to one (now defunct) title. Some go even further, and have sought to argue that current police investigations into phone hacking and other criminal conduct have been unfair and disproportionate. For reasons which, by now, I have made crystal clear, I totally reject these forms of special pleading. They ignore the evidence the Inquiry has received and, in their most extreme form, come close to suggesting that journalists should not be subject to the rule of law. But in my view there is no more precious principle in a mature democracy. Those reading the whole of Part F of this Report may be forgiven for thinking that the pages covering good practice are far outnumbered by those covering the bad. I have already made the point that it would be a gross error to measure my assessment of the press in terms of the number of words expended. It is in the nature of public inquiries to investigate areas of public concern and adduce detailed evidence to enable those areas to be probed. The preponderance of good practice within the press, including those sections of the press which have been the focus of criticism, has been recognised by most of the witnesses who have testified; it also chimes with my own experience. This statement requires more than mere recognition; it deserves explanation and elaboration, and the Chapter above meets these pre-requisites.2 I have already exempted the regional press from the generality of my findings, but I should address the position of magazines. In their submissions to the Inquiry, News International (NI) invited me to desegregate magazines from newspapers for this purpose on the basis that there is no evidence that they share a common culture, practices and ethics. A number of publishers of magazines have addressed this issue more directly, and have pointed out that the pressures on magazines are somewhat distinct from those operating on newspapers: they are published less frequently, and there is less of a call for the eye-catching headline or the sensationalised story, as one such publisher put it to me. Additionally, the Inquiry only heard from three magazine editors and their evidence was confined to the admittedly important issues of celebrity, intrusion, breaches of privacy, and harassment by paparazzi. Some of this evidence did not place these magazines in an altogether favourable light, and has been covered elsewhere. But save in these specific respects it is appropriate that I exempt magazines from the generality of my findings.
F
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1.7
Part F, Chapter 2
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Chapter 7 | Conclusion
1.8
It is not the purpose of this concluding section on the culture, practices and ethics of the press simply to summarise that which has already been set out at length. Instead, I intend to apply a somewhat broader perspective.
2. possible causes
2.1 Turning now to this wider perspective, a number of possible causes of the problem have been raised and ventilated during the course of the Inquiry, and it is appropriate to address these. Some have suggested that a press which rightly prides itself on its irreverence and fearlessness is almost destined to manifest a tendency to go too far and overreach itself. A press, they say, which is fearful and overly cautious would be inclined to be supine, and fail to discharge its primary function which is to hold power to account. Others have suggested that unethical press practices are the result of one of two broad sociological factors. First, many would argue that the modern celebrity culture cannot simply be an artefact of a certain section of the press; it is a reflection of the fact that many people appear to be endlessly curious about the personal lives of sportsmen and women, film and pop stars, fashion models and those who attain celebrity status without having done much more than create or benefit from a public persona which attracts interest. Whereas the public as a whole were rightly horrified by the revelations at News of the World (NoTW) because that titles methods so obviously crossed a red line into illegal and unethical territory, the self same public might well take a different view as regards lesser degrees of intrusion. Secondly, many have also argued that elements of the press in this country have acquired a sense of impunity, of being above the law, because they have become too powerful, their economic and social power having become concentrated into too few hands. I have set out these possible causes without necessarily endorsing any of them. This is so for two reasons. First, many of these potential causes, assuming that they have been correctly identified, are beyond the scope of this Inquiry to the extent that it is difficult if not impossible to devise an antidote or a solution. If, for example, the problem lies within society as a whole, there could be little or nothing I could say or recommend to encourage (let alone force) the tectonic plates to move into an altogether different place. Secondly, and in any event, the Inquiry has not investigated many of these alleged causal factors to the extent necessary to reach clear conclusions on these complex issues, and I doubt whether it would have had the expertise to do so in all instances. That said, there are three aspects of the wider problem which merit further attention: first, the impact of commercial pressures in a shrinking newspaper market; secondly, the range of issues surrounding the modern employment context and the pressures exerted on journalists, and finally, issues of internal governance and leadership. These issues have been explored in the evidence and in submissions, and the Inquiry is in a position to examine them.
2.2
2.3
2.4
Commercial pressures
2.5 Many have pointed to the impact of commercial pressures in a dwindling marketplace. These pressures encourage excessive risk taking by titles that are in an incessant circulation war with one another; there are also pressures which operate on journalists at the metaphorical coal-face, some of which may require them to meet unrealistic targets and deadlines, and to cut corners as regards the exigencies of fact checking and adherence to the letter and spirit of the Editors Code.
719
2.6
The Inquiry has been told by a large number of witnesses that the economic environment in which newspapers operate is challenging; indeed, this is a hard fact which cannot seriously be disputed. Certainly, newspaper publishers in the UK operate in a highly competitive market where margins are tight and the competition for stories is intense: these factors exert considerable pressure both on editors trying to fill newssheet and journalists seeking copy. Although some newspapers are highly profitable, the overall market is in decline and has been for many years, this is increasingly characterised by shrinking revenue streams and low profitability. Market share has been steadily eroded over the last eighty years or so: first by radio, and then the advent and growth of television, from one channel in the early days, to the explosion of channels made possible by the introduction of satellite television services and the rollout of digital television. This loss of market share has been further exacerbated over the last 20 years by the growth of the internet and the close to exponential increase in the availability of mixed media services through that medium. Whilst some newspapers have been able to halt the decline in sales, most newspapers have lost sales at a rate that threatens the future economic viability of many titles. This is a trend that is more acute at, but not restricted to, the local and regional level than at national level. The ability of newspapers to grow their own sales in the context of this overall decline is also constrained by the tribal loyalties of readers. Clare Enders of Enders Analysis has told the Inquiry that overall only 2% of the market is contestable. It is unsurprising therefore that the commercial need to sell stories believed to be of interest to the public is an increasingly potent consideration. The impact of these pressures is not uniform. The evidence has also indicated that a difference in commercial imperatives exists between the broadsheets and tabloids. The journalist Nick Davies has suggested that the ownership and financial management of the Guardian by the Scott Trust has enabled the paper to distance itself from any commercial expectation to maximise profit. By contrast, Mr Davies has suggested that tabloid newspapers are likely to place a greater emphasis on circulation numbers than the broadsheets. In part, this view has been substantiated by the evidence to the Inquiry presented by both tabloid and middle market newspaper editors, as well as by evidence presented to the Inquiry by the former tabloid journalists Richard Peppiatt, Mathew Driscoll and Paul McMullan. On the other hand, Mr Richard Desmond, the owner of the Northern and Shell Group and publisher of the Daily Express and Daily Star newspapers, said in evidence that he did not believe that there was a direct correlation between stories and sales. Other witnesses from his titles (and indeed elsewhere) expressed the same view, drawing on circulation data relating to the period when the story of the abduction of Madeline McCann featured heavily on the front page of the Daily Express. The Inquiry need not resolve this issue, but I make the following broad observation. It may well be that the examination of any one individual case, such as the McCann example, will fail to demonstrate a spike in sales over a relatively short period of time. However, it is a different question, and one less verifiable by empirical evidence, as to whether the publication of particular types of story over many months and years is responsible, at least in part, for long term trends and patterns in newspaper circulations.
2.7
2.8
2.9
2.10
2.11
2.12
720
employment issues
2.13 The demand for circulation appears to create, at least within some newspaper titles, a significant pressure on journalists to perform. Some of the journalists who have given evidence to the Inquiry make clear that the pressures to secure copy are extreme, and that their jobs and livelihoods are at stake on an almost daily basis, particularly for those on temporary or informal contracts. The challenges operating in the print market are most obviously manifest in the reduction in journalist headcount across the national and regional press. The consequences for those journalists who remain are broadly uniform; they must produce more stories of interest to readers on reduced resource. In evidence to the Inquiry, a number of journalists have explained that they were required to produce a particular number of bylines in a given time frame. In many cases there were sanctions if these targets were not met; for those on short term contracts this might mean the termination of that contract. The former NoTW journalist, Paul McMullan has told the Inquiry that he kept his own cuttings in order to keep a record of the minimum of 12 bylines per year he was required to produce at the NoTW. The Guardian journalist David Leigh has suggested that, as a consequence of this pressure to generate a tangible product, at some newspapers there existed a real culture of fear among journalists if targets were not met. James Hipwell, the former city correspondent for the Daily Mirror, described similar pressure at that title and recalled occasions where staff would receive emails from the then editor, Piers Morgan, berating them for not delivering enough exclusive stories for the paper. The challenging economic circumstances in which many newspapers operate and the continual pressure on the bottom line of most newspaper businesses has led many newspapers to introduce new ways of working, often built around short term contracts, a growth in the use of freelancers and a reduction in the number of permanent staff posts. Michelle Stanistreet, General Secretary of the National Union of Journalists (NUJ), has suggested that this increased casualisation of journalists employment across the newspaper industry has created an environment of great uncertainty for many newspaper employees. Ms Stanistreet claimed that journalists employed on a casual or short-term basis were forced to work under even greater pressures than permanent members of staff. She articulated the concerns that had been raised with the NUJ by freelance journalists. These included employment without job security and a failure to provide journalists with the basic resources they needed to undertake their work; such as the failure to provide a laptop, mobile phone and the ability of claiming expenses. Ms Stanistreet also said that casual and freelance journalists worked with permanent staff in the same pressurised newsroom environment, but invested greater resources and faced higher potential losses should they fail to deliver stories or other achievements. This characterisation of short term and temporary contract work presented by Ms Stanistreet was echoed in the evidence of Steve Turner, General Secretary of the British Association of Journalists. He highlighted the apparent injustice of journalists being forced to work on shortterm contracts for many years, and the fact that reporters were put under impossible pressure to produce stories without being given the resources to do so. This was also reflected in the evidence of the journalists Richard Peppiatt and Sharon Marshall. The Inquiry has heard from journalists working at both tabloid and broadsheet titles who have spoken about the prevalence of bullying in some newsrooms and, in particular, the bullying of relatively junior and sometimes vulnerable staff by senior management teams, including
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2.16
2.17
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721
editors, and the impact that such behaviour has on the working practice of journalists. In Part F, Chapter 4, I found that bullying had taken place at the NoTW. 2.19 It must be noted, however, that the majority of the journalists who testified before the Inquiry denied that there was a culture of bullying in the newspapers in which they worked. They freely acknowledged that the environment was competitive and pressurised, but it might be said that the same descriptors could be applied to many work places in different walks of life. I am not suggesting for one moment that any witness deliberately misled the Inquiry when giving evidence along these lines. But had there been, for example, a culture of bullying or of turning a blind-eye to ethical standards at any title, I doubt whether many journalists would have been prepared to tell me that in terms. Furthermore, whether a work-place is competitive and pressured is to some extent a subjective impression, as is the subsidiary issue of whether pressure is a force for the good or the bad. Apart from the anonymous evidence adduced through Ms Stanistreet, and the evidence from Steve Turner, General Secretary of the British Association of Journalists, a limited number of former journalists did speak to the existence of a bullying and less than ethical culture in the papers in which they worked. The qualitative deficiencies of the anonymous evidence must be recognised, and in respect of each of the former journalists there are reasons for treating their evidence with caution. I have examined their evidence in previous sections of the Report, but here I set out two pieces of evidence which struck a particular chord with me: this is because of the way in which the evidence was given, its inherent plausibility, and its consistency with other evidence. Matthew Driscoll, formerly of NoTW, told the Inquiry in an extended sequence of answers: Q. You tell us in your witness statement at paragraphs 7 to that you spoke to colleagues about this blagging technique and they told you that the practice had gone on for some time and also that the obtaining of medical records was common practice. Do you recollect that? A. It was certainly something that wasnt a rarity, no. Q. Did you ever raise your concerns with your sports editor or with anyone else at the time? A. No. I mean well, I certainly raised my surprise that anything like that could be done. That was all new to me, having come from the Daily Star. But, you know, as Ive thought about it long and hard, it would be a very brave journalist, certainly in the early years of his career on the paper, to suddenly say, Im not happy with these techniques that are being used. Youd be basically making a decision over your career there. Anyone on that floor who complained too much would find themselves pushed out, certainly. Q. Can you assist us with why you think this type of practice was going on? What was the purpose? Why did they have to resort to this? A. The main reason is to make sure a storys true. You know, this is kind of the irony, really. Tabloid newspapers are very fearful of getting a story badly wrong, and the lawyers are just as the in-house lawyers are just as scared of that because it costs a lot of money if you do get it wrong. Not only do you have the humiliation of putting an apology in the paper or it being followed up and being disproved by other papers, it can then cost you a lot of money in out-of-court settlements, and money is the be all and end all of tabloid newspapers, really, and the pressure was on to make sure
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a story was correct and that you wouldnt get any comeback legally. So there was a pressure to use, as it now turns out, almost any means necessary to make sure that a story was 100 per cent true. Q. Are there any other blagging incidents that youd like to draw to our attention? A. Only ones I heard of. The examples Ive given you are the ones Id directly worked on, yeah. LORD JUSTICE LEVESON: Im sorry, I just have to follow up the last answer. So everything that was done was done to avoid libel? A. Thats my opinion, yeah, certainly. LORD JUSTICE LEVESON: Any consideration given to concepts of propriety or privacy A. Im sure there would have been sometimes, but I think the biggest priority was to make sure that that story was true, to make sure there would be no litigation further down the road. I think thats where the onus lied. 2.23 I recount this evidence without making any judgment about the managerial approach at the NoTW (beyond that expressed in Chapter 4 of this Part of the Report) but it is important as providing an insight into press culture for a number of reasons. For present purposes, the focus is on what Mr Driscoll had to say about an environment which effectively precluded whistleblowing or speaking out. James Hipwell, the former Daily Mirror journalist, emphasised the commercial and competitive pressures on journalists:3 It was quite common to be threatened with the sack. Frankly, if a journalist doesnt bring in enough exclusives or enough stories, then what use is he to a newspaper? This is a highly competitive industry. You can easily be replaced. It takes you years and years to get to you know, to get onto a national newspaper, very often, and, you know, you dont want to blow it by not pulling your weight, and the fact is if you dont bring in great copy, great exclusives, youre not going to last in the job. 2.25 I appreciate that both Mr Driscoll and Mr Hipwell have been challenged on the basis of bias, the former because of his complaints directed at the NoTW and the latter following his treatment (and his conviction) while working at the Daily Mirror. The entirety of the evidence received by the Inquiry, however, points strongly to the conclusion that journalists were and are reluctant, if not afraid, to speak out about whatever unethical or illegal activities they came across, however frequently or infrequently that might have been. Equally, it is difficult to avoid the conclusion that the failure to provide protection to whistleblowers contributed to this reluctance. Piers Morgan, former editor of the NoTW and the Daily Mirror, did not express concern that, to his knowledge, there were no whistleblower policies in place at NoTW or the Daily Mirror during his period as editor at these papers.4 Richard Peppiatt, a former journalist at the Daily Star, vividly described a culture in which whistleblowing was deterred:5
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2.27
3
p34, lines 16-25, James Hipwell, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-21-December-20111.pdf 4 pp9-10, paras 43-44, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-PiersMorgan.pdf 5 p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Richard-Peppiatt.pdf
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It seemed to me that reporters employment contracts were structured specifically to limit the possibility of any ethical protest. Many, including myself, were on casual contracts, which is to say they can be terminated at anytime. The spectre of being let go at any moment is a powerful deterrent against sticking your head above the trench if you disagree with something that is occurring. Even if someone was bold enough to complain, no channel existed for employees to raise concerns about ethical or journalistic practices. My feeling was certainly that the further up the chain of command you went the less, not more, concern over newsroom behaviour existed. 2.28 Whistleblowing is usually protected under the provisions of the Employment Rights Act 1996 to the extent that employers are not empowered to act to the detriment of employees in relation to public interest disclosures. However, there is a strong argument for recommending greater protection in this regard, and in my view the case advanced by the NUJ to the effect that conscience clauses should be routinely introduced into the contracts of employment of journalists is more than justified. The NUJ goes yet further, and has argued through its General Secretary, Michelle Stanistreet, that:6 ... there is a connection between the anti-trade union culture at News International and the moral vacuum thats been allowed to proliferate. The culture stems from the top of the organisation yet it is ordinary working journalists who are being sacrificed and whose livelihoods have been destroyed whilst those at the top of News International enjoy impunity. 2.30 Although I can see the clear possibility of a causal connection between a culture where journalists are reluctant to speak out and the presence and in particular the perpetuation of unethical practices, Ms Stanistreets point about a similar anti-trade union culture and such practices is a more controversial proposition. She may be right, but I am not in a position to express a concluded view about this on the limited evidence I have heard. Taken together, these different pressures (a competitive market, growth of new media, declining circulation, reduction of journalist headcount, reduced budgets, a casualisation of workforce, a lack of support to whistleblowers, and a sometimes bullying culture) risk the prioritisation of the pursuit of a story over all other, ethical, considerations. It is of interest that in her evidence to the Inquiry, Ms Marshall has said that in her experience there were no ethical conversations in journalism. Her evidence echoed the view of Northern and Shell proprietor, Richard Desmond, when he told the Inquiry that: We do not talk about ethics or morals because its a very fine line, and everybodys ethics are different.7 While that appeared to be a minority view across the industry as a whole, it nonetheless reflects the culture of a section of the press. It should be emphasised that what is here being identified is the enhancement or magnification of risk. Just as poor systems of governance may increase the risk of unethical practice, so does the existence of the sort of commercial factors identified here. But these risks may or not mature in the real world and separate consideration needs to be given to that. For example, an unpromising commercial environment might nonetheless engender exemplary newsroom practices in any given case: this would be the consequence of there being editors and journalists of sufficient calibre to withstand the pressures and temptations operating on
2.29
2.31
2.32
6 7
p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Michelle-Stanistreet.pdf p6, para 22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-RichardDesmond.pdf
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them at all material times. That said, it cannot sensibly be denied that, in the real world, the existence of an environment whose attributes might well be described as unfavourable to good practice will have a tendency to generate bad practice.
Leadership and governance

2.33 I have mentioned commercial pressures on titles and personal pressures on journalists, but many would say that the emphasis should be more specific. To the extent that the Inquiry has identified a real problem within the culture, practices and ethics of the press, many would argue that the proximate cause of that problem should be visualised as being one of a failure of leadership and internal governance. The culture and tone of an organisation is set by and from the top: in terms of leading by example, insisting on adherence to standards, and implementing systems of governance which serve to identify and eliminate both legal and ethical risk at all levels of the organisation. The Inquiry does not propose to comment in depth on the quality of leadership at NoTW (or higher up the corporate ladder into NI or News Corp) in any greater detail than set out earlier, since to do so might prejudice the criminal trials of at least two (if not many more) individuals. By extension, I will need to take care in examining the position in relation to other titles in case my reasoning and conclusions are transposed back onto NoTW or run the risk of offending what I have described in the Introduction as the self denying ordinance. I repeat, not for the first time, that this part of the Inquiry has been focused on aspects of the practices of the press at a higher level than the specifics who did what to whom, who authorised it and who knew about it; its purpose is to address issues of regulation. Within these obvious and ever-present constraints, it is both possible and appropriate to set out some concerns, even if these fall short of amounting to clear-cut and transparent conclusions. A review of the evidence adduced before the Inquiry and already analysed has given rise to concern in at least two respects. First, it is suggestive of leadership and internal governance failures in relation to the use of private investigators and the making of cash payments: on any view, these were high risk areas which warranted a firmer hand on the tiller. Second there are concerns in relation to the use of sources. It has already been pointed out that a number of editors and lawyers confessed to having no knowledge that private investigators and search agencies were used at their titles. By way of example only, the editor of the Daily Star, Dawn Neesom, stated that she was not aware that search agencies were being used until their existence was brought to her attention by her legal team.8 This was also the case for Hugh Whittow, editor of the Daily Express and his predecessor in that role, Peter Hill. Hugh Whittow stated that he had no knowledge of [the use of private investigators] at all until it started appearing in the newspapers and on television9 and had only recently discovered that some reporters at the Daily Express had used the services of search agencies.10 More surprisingly, neither he nor Mr Hill could recall being made aware of the Information Commissioners 2006 report What Price Privacy Now,
2.34
2.35
2.36
p60, lines 4-14, Dawn Neesom, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-12-January-2012.pdf; pp6-7, paras 17-19, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Dawn-Neesom.pdf; p13, para 58, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/01/Witness-Statement-of-Justin-Walford.pdf; pp4-5, paras 12-14, http://www.levesoninquiry. org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Peter-Wright.pdf 9 p115, lines 9-13, Hugh Whittow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-12-January-2012.pdf 10 pp117-118, lines 12-2, ibid
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even though it identified seven journalists at the Daily Express as being involved in enlisting the services of private investigator Mr Whittamore.11 2.37 Elsewhere, executives, editors and lawyers who were aware of the use of private investigators and search agencies, conceded that they had no knowledge of the methods deployed to obtain information. Few expressed concern about this lack of knowledge, even with the benefit of hindsight. This lack of concern was evident in the evidence of Nicole Patterson, head of legal at the Express and Star titles. Ms Patterson expressed the view that newspapers were entitled to expect search agencies and private investigators would operate within the law to obtain information:12 Longmere Consultants, Searchline, SystemsSearches and Express Locate are all names of search agencies that I know that are used by law firms to find and serve people with papers, and totally legitimate as far as I was aware, and Im not sure that when you employ anybody that you ask in great detail whether they how they go about doing what they do. You employ a company to do something for you and you expect that they would do it within the law. You expect that. Not that you dont care. You expect it. 2.38 2.39 Other editors shared Ms Pattersons expectation that search agencies would operate within the confines of the law.13 Ms Patterson also expressed the view that, as head of legal, the question of what methods were used were not within her remit; such considerations were editorial matters.14 However, as has already been noted, Ms Neesom, Mr Whittow and Mr Hill, each editors at titles owned by the Northern & Shell during Ms Pattersons time as head of legal, gave evidence that they were unaware of the use of search agencies and private investigators. At its lowest, this revealed a degree of confusion within management as to the allocation of responsibility for overseeing the use of external providers of information. It was also revealing that most lawyers who gave evidence to the Inquiry had backgrounds in corporate law or media law.15 None described having expertise in criminal law and a number confessed to having no knowledge of criminal law or the legality of information gathering techniques.16
2.40
11
p14 lines 3-21, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-AfternoonHearing-12-January-2012.pdf; p115, lines 14-25, Hugh Whittow, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Transcript-of-Morning-Hearing-12-January-2012.pdf; 12 p9, lines 3-18, Hugh Whittow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-12-January-2012.pdf 13 p119, lines 5-17, Hugh Whittow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-12-January-2012.pdf; pp12-13, lines 15 18, John Witherow, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-17-January-2012.pdf; p10, para 42, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Dominic-Mohan.pdf 14 p15, lines 18-20, p23, lines 10-15, Hugh Whittow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-12-January-2012.pdf 15 p1, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Alastair-Brett. pdf ; p1, para 1, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-JonathanChapman.pdf ; p1, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-ofJustin-Walford.pdf 16 p1, para 1, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-JonathanChapman.pdf; p2, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-ofTom-Crone.pdf
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2.41
John Witherow, editor of The Sunday Times, was clear in his evidence that the editor bore responsibility for the conduct of any third party used to obtain information.17 However, when questioned about the extent to which it was possible to police external providers of information, Mr Witherow conceded that it was down to individual journalists to ensure that private investigators behave in what we regard as a proper way.18 Mr Witherow was not alone in delegating responsibility for the supervision of private investigators to journalists. The former editor of the Daily Mirror, Richard Wallace, stated:19 During my time as Editor of the Daily Mirror we have used, on occasion, the services of private investigators. I have not directly commissioned or had direct contact with them. They would, of course, have been paid for their services, but I would not be involved in their instructions have knowledge of what they were doing or be involved in the nuts and bolts of their payment.
2.42
Against this backdrop, it is of some concern that the evidence to the Inquiry from most editors was that there was no procedure or protocol in place in relation to when private investigators or third party sources could be used, how they were identified, or the methods they were permitted to employ.20 In place of protocols or procedures, emphasis was placed on the expectation that third parties would operate within the law.21 The Sunday Times was the only title to give evidence that they have adopted a more formal approach to the use of external providers of information since the phone hacking scandal. As Mr Witherow explained:22 [I]n the light of the phone hacking scandal we have naturally checked to make sure we operate within the PCC Code and the law. As one precaution we are drawing up formal understandings with freelancers to make sure they abide by the law and the PCC Code, although most are already accredited to reputable organisations which require such behaviour. We have also introduced a more formal approach when considering subterfuge. This involves the reporter making his case in writing and this
2.43 2.44
p14, line 20, John Witherow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Afternoon-Hearing-17-January-2012.pdf; p9, para 33, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-John-Witherow.pdf 18 p13, lines 8-18, John Witherow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-17-January-2012.pdf 19 p19, para 66, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-RichardWallace.pdf 20 p51, lines 1-15, Thomas Mockridge, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-17-January-2012.pdf; p7, para 19, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Witness-Statement-of-Dawn-Neesom.pdf; p10, para 42, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Dominic-Mohan.pdf; p6, para 43, http://www.levesoninquiry.org.uk/wpcontent/uploads/2011/12/Witness-Statement-of-Colin-Myler1.pdf; p9, para 33 http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/01/Witness-Statement-of-John-Witherow.pdf 21 p50, lines 10-25, Thomas Mockridge, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-17-January-2012.pdf; p119, lines 5-17, Hugh Whittow; p9, lines 3-18, Nicole Patterson, http:// www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning-Hearing-12-January-2012. pdf; pp12-13, lines 15-end, John Witherow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Afternoon-Hearing-17-January-2012.pdf; p5, para 25, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Justin-Walford.pdf; p13, para 49, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/01/Witness-Statement-of-Richard-Wallace.pdf; p9, para 33, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/01/Witness-Statement-of-John-Witherow.pdf 22 p3, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-Witherow. pdf
17
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being discussed by the heads of news, the newspapers lawyers and the Editor and Managing Editor, with a formal minute made of the decision. 2.45 It appears that, at the majority of titles, there is no formal system in place to govern when journalists may engage external providers of information, and on what basis. Without the adoption of such a system, editors and lawyers will continue to have difficulties in controlling third party sources and holding accountable those responsible for unethical conduct. If the conditions which enabled the use of private investigators to go unchecked for so long are to be avoided, significant improvements must be made to systems for monitoring and supervision. A related issue is the adequacy, or lack of it, of systems for recording payments made for information. It appears that until recently such expenditure was dealt with as ordinary expenses claims, with the result that there was little oversight at editorial level.23 A number of editors gave evidence that the amounts paid to external sources were small and did not attract attention so that there was never any cause to question the expenditure.24 Some titles have acknowledged the need to improve the financial accounting system and have introduced new systems to monitor expenditure. For example, at NI there was acknowledgement that the payments control system was inadequate and it was replaced in September 2011.25 Before then it was left up to the discretion of the managing editor whether or not to question individual payments. Under the new system the policy makes clear that journalists should use non cash methods of payment for information, and only when the source insists on a cash payment is it acceptable to pay in cash. The journalist requesting the cash must obtain agreement from his or her departmental head that payment be made, and that authorisation must be countersigned by the editor or a deputy editor, as well as the managing editor. It is notable, however, that the new system does not necessarily require the identification of the recipient of cash payments and there is no limit to cash payments.26 Other titles have failed to acknowledge the difficulties presented by informal accounting systems. Mr Desmond gave evidence that the company operates stringent costs management, which I believe helps us to ensure that the companys money is not used for any unlawful purpose.27 But tight purse strings are not a surrogate for proper accounting systems, and Paul Ashford, Northern & Shell group editorial director, conceded that there are flaws in the companys financial accounting system.28
2.46
2.47
F
2.48
pp84-85, lines 8-20, Peter Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-11-January-2012.pdf; p11, para 35, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/02/Witness-Statement-of-Paul-Dacre.pdf; p6, para 17, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Dawn-Neesom.pdf; pp1-2, paras 5 6, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/01/Witness-Statement-of-James-Welsh.pdf; p4, para 13, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/01/Witness-Statement-of-Peter-Wright.pdf 24 pp34-35, lines 14-15, Paul Ashford, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-12-January-2012.pdf 25 pp68-71, lines 13-21, Susan Panuccio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-17-January-2012.pdf; p3, para 5.1.3, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Susan-Panuccio.pdf; p7, para 22.1, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/01/Witness-Statement-of-Simon-Toms.pdf 26 p2, para 5.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-SusanPanuccio.pdf 27 p3, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-RichardDesmond.pdf The Daily Mail introduced new procedures in late 2011 as part of a review of payments to third parties in light of the new Bribery Act; however, Paul Dacre did not accept that problems existed under the previous system: p3, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Paul-Dacre.pdf 28 pp34-35, lines 14-15, Paul Ashford, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-12-January-2012.pdf
23
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2.49
A related leadership or governance issue concerns the use of sources. It is of course appreciated that a balance has to be struck between on the one hand micro-managing each and every story to the extent that sources are identified and checked for accuracy and reliability, and on the other hand trusting the journalists say-so that source X is reliable. The former would be unworkable in practice, not least given the pressure of deadlines and the fact that many stories by their nature do not need this degree of close attention. The latter is unacceptably laissez-faire. Overall, there is considerable room for improvement in this regard, and more should be done at management level, by editors and lawyers in particular, to interrogate and verify the sources of information prior to authorising publication of a story. Most of the editors who gave evidence to the Inquiry acknowledged that responsibility for deciding whether to publish a story rests with them. However, most also stated that they would frequently authorise publication of a story without knowing the identity of a source.29 Editors expressed the common view that primary responsibility for checking sources lies with the journalist. This in itself is an appropriate delegation of responsibility. However, it has become clear that there are inadequate systems in place to verify sources. The gravamen of the evidence received by the Inquiry was along the lines that only if something about the story caught an editors attention would the reliability of sources be questioned.30 A number of journalists stated that they were rarely asked to verify the facts of a story.31 The approach was justified, in part, by the need to protect source anonymity.32 More generally, editors emphasised the importance of trust in the reliability and integrity of individual journalists as being fundamental to the operation of the newsroom.33 Mr Wallaces view epitomised that expressed by most editors:34 To the best of my knowledge and belief, my journalists (like me) do comply with the law and the Code and I must trust them to do so. In the absence of any reason to call this relationship of trust into question, I do not believe that I should necessarily (or in some cases, properly) be aware of my journalists sources and methods.
2.50
2.51
pp47-49, lines 1-7,Richard Wallace, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-16-January-2012.pdf; p7, para 27, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Dominic-Mohan.pdf; p5, para 11, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/01/Witness-Statement-of-Dawn-Neesom.pdf; p3, paras 12-13 and p6, para 22, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-Witherow.pdf 30 pp112-113, lines 22-15, Tina Weaver, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-16-January-2012.pdf; pp107-108, lines 9-19, Hugh Whittow, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/01/Transcript-of-Morning-Hearing-12-January-2012.pdf; 31 p5, paras 33-34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Nick-Fagge.pdf 32 p9, para 42, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Piers-Morgan. pdf; p5, para 21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-DominicMohan.pdf; p3, paras 12-13, p6, para 22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/WitnessStatement-of-John-Witherow.pdf; p3, paras 6-7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Witness-Statement-of-James-Harding.pdf; p11, para 35, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/02/Witness-Statement-of-Paul-Dacre.pdf 33 p11, para 35, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Paul-Dacre. pdf; p3, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-JamesHarding.pdf; p9, para 7.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statementof-Thomas-Mockridge.pdf p5, para 21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/WitnessStatement-of-Dominic-Mohan.pdf; p5, paras 34-35, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Witness-Statement-of-Colin-Myler1.pdf; pp48-49, lines 21-8, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Transcript-of-Morning-Hearing-16-January-2012.pdf; p3, para 6, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/01/Witness-Statement-of-Dawn-Neesom.pdf; p9, para 42, http://www.levesoninquiry.org. uk/wp-content/uploads/2011/12/Witness-Statement-of-Piers-Morgan.pdf; 34 p13, para 49, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-RichardWallace.pdf
29
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2.52
Although a degree of trust in subordinates is required in the operation of any organisation, there is concern as to the extent of unchecked discretion afforded to journalists across the newspaper industry, and it is certainly arguable that this sort of laissez-faire attitude engendered a climate in which more serious ethical and legal breaches could be permitted to occur. Furthermore, this lack of supervision and excessive degree of trust may well have fostered a culture in which journalists feel able to publish stories on the basis of a single, unverified source. The complacency evidenced in the presumption that individual journalists would act lawfully and ethically is all the more concerning when viewed in the context of the failure within the press to develop effective systems to govern standards of conduct. In an industry which relies so heavily on the delegation of responsibility to journalists, it is essential that stringent codes of conduct and systems of accountability are developed and implemented. However, the available evidence suggests that there was a failure across significant sections of the industry to develop and implement appropriate systems to govern conduct and ethics. The Editors Code of Practice provided a reasonable benchmark for adequate practice, but the evidence examined in Chapter 6 above suggests that not enough was done to ensure compliance, and that such systems as were in place were and are informal in nature and defined by the personalities of the individuals in positions of leadership. Mr Peppiatt provided the following account of the treatment of the PCC Code during his time as a journalist at the Daily Star:35 I would describe corporate governance at the Daily Star as laissez-faire at best. There was little or nothing in the way of documents or official policies governing conduct. I was never asked or offered the opportunity to sign a code of conduct, nor did there exist to my knowledge an employee handbook type resource to reference. The PCC Code was not something that I ever heard referenced in relation to how a story should be handled, although certain limitations such as not trespassing in hospitals were implicitly acknowledged. I have admitted that some stories I wrote at the Daily Star were wholly inaccurate, often written under pressure from superiors to distort the facts at hand. For me to have referenced the PCC Code to protest against this I would have been laughed out the door.
2.53
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2.55
Asked to describe how the Editors Code of Practice was enforced at the Daily Star, Ms Neesom gave the following evidence:36 Its just expected of the staff and its enforced by people not being very happy with them if they mess up The journalist concerned will probably be warned by the news desk that they have done something wrong I personally probably wouldnt talk to the journalist concerned, but the news desk or my deputy editor would.
2.56
Systems of supervision at other titles were similarly informal. Colin Myler, former editor of the NoTW, in somewhat vague terms described relying on a culture of individual and collective responsibility for ensuring compliance with the PCC Code and the law during his editorship.37
p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Richard-Peppiatt.pdf p37, lines 1-22, Dawn Neesom, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-12-January-2012.pdf 37 p3, paras 16-19, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-ColinMyler1.pdf
36
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Mr Wallace explained that one of the checks on conduct at the Daily Mirror is to position senior reporters alongside more junior reporters.38 2.57 Dominic Mohan, editor of The Sun emphasised how he sought to foster a culture of honesty, integrity and high ethical standards at the Sun39. However, when asked how he had tried to foster those qualities, his answer revealed that ethical controls at The Sun are similarly ad hoc, relying on the judgment of individual journalists and the initiatives and attentions of individual managers rather than being systematic:40 I think just on an editor can their contact on a day-to-day basis with their staff, so whether that be in morning news conference, during my features conferences, during my lunchtime plot meetings or my presence on the back bench in the newsroom on a daily basis, I think people know what I expect of them and know what standards and ethics that I stand by. 2.58 In the absence of formal systems of enforcement, even instances of clear and serious breaches of the Codes did not result in significant disciplinary action. The Inquiry has already examined in depth the response of senior management at the NoTW to Mr Justice Eadys strictures in relation to the thinly-veiled threats to two of the women involved in the Max Mosley privacy claim, and has touched on that of senior management at Trinity Mirror in relation to the Starsuckers investigation. These are indicative of a cultural tendency metaphorically to circle the wagons, defend that which has been criticised (even judicially) and attacking those who utter the criticism and, in some cases, garnering support from others in the industry. Free speech is, of course, of critical importance; judges (among others) are not infallible and are well used to being criticised without having the ability to respond. Similar criticism can be advanced about appellate decisions. What is missing, however, is internal reflection about (and action in respect of) breaches of the Code which are worthy of censure. Putting to one side that fact that an editor is ultimately responsible for what is published, questions naturally arise as to whether the real problem within the culture, practices and ethics of the press which this Inquiry has identified should be regarded as a failure of leadership. For reasons which have already been fully explained, it is unnecessary to venture into the territory of whether an editor at any particular title must have been aware of specific malpractice merely by virtue of his or her position. I have in fact already made clear that a number of editors were unaware, for example, of the extensive use of private investigators within their organisations, and if this evidence is to be accepted (and there is nothing directly to contradict it) it does tend to suggest that the editorial role does not automatically carry with it knowledge and understanding of every journalistic practice which is in play in the title for which the editor is responsible. Approaching the issue at a far higher level of generality, however, it is possible to express a number of tentative views. The point has already been made that the culture or tone of an organisation is set by or at the top. If ethical failings have been highlighted, it would be counter-intuitive to regard these as largely attributable to the isolated frailties of individual rogue journalists. As in other walks of life (evident, for example, in relation to the police),
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p54, lines 4-12, Richard Wallace, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-16-January-2012.pdf; pp55-56, lines 22-1, Lloyd Embley, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/01/Transcript-of-Afternoon-Hearing-16-January-20121.pdf 39 p7, para 29, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-DominicMohan.pdf 40 p46, lines 17-25, Dominic Mohan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-9-January-2012.pdf
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journalists take their lead from the example set by the leaders and managers within their organisations, and are guided and influenced by the culture within the industry as a whole. Although it would be equally counter-intuitive to regard journalists as purely the victims of such a culture, or of an ethical vacuum created by inaction at the highest levels within the organisation, the significance of this factor does need to be acknowledged. 2.61 Insight into issues of this sort was provided by Richard Desmonds candid evidence to the Inquiry, betraying a reluctance on his part to engage with what might be thought to be a basic questions that all those in journalism should be prepared to focus on. He said: Ethical I dont know what the word means, perhaps you would explain what the word means, before adding, as noted above: We do not talk about ethics or morals because its a very fine line and everybody is different.41 Even when those in a leadership role acknowledged errors of judgment, they were unwilling to confront the ethical component of that failure. Many editors expressed regret at the way in which the Christopher Jefferies story was reported; yet none sought to explore what ethical standards had been transgressed in this episode. For example, Mr Wallace viewed the failings which led to the publication of the Jefferies story as a black mark on his career, stating that I think Mr Jefferies name will be imprinted on my brain forever more. It will change very much the way I deal with any story of this nature in the future.42 However, he did not consider that any practical changes could be made to reduce the risk of recurrence, stating:43 Ultimately its down to the judgments of editors and, you know, as I found in this regard and other mistakes have been highlighted, we all make mistakes. Im not seeking to downplay those mistakes or dismiss them; Im just saying you can have as many safeguards and checks and balances in place you would like but these errors are going to happen. Its about creating a climate, I believe, which makes all editors think perhaps a little bit longer than they have previously. 2.63 2.64 In the absence of clear leadership on ethical standards, it is at least arguable that journalists latched on to alternative barometers of what amounted to acceptable conduct. Another trend emerging from the evidence considered above is that the press tend to subsume ethical considerations within an assessment of legal risk. This type of reasoning process was encapsulated in the explanation provided by Mr Desmond which follows his answer about ethics and identifies the approach taken at his titles:44 I think that we are in a business to give readers/viewers what they want to read and watch and as long as it is legal that is what we aim to do. We do not talk about ethics or morals because it is a very fine line and everybodys ethics are different. However, we do of course care about the titles reputation and so we would not run a story if we thought it would damage that or seriously affect someones life.
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p62, lines 1-18, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-12-January-2012.pdf 42 p73, lines 4-6, Richard Wallace, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-16-January-2012.pdf 43 p73, lines 10-19, Richard Wallace, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-16-January-2012.pdf 44 p63, lines 1-10, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Afternoon-Hearing-12-January-2012.pdf; p6, para 22, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Richard-Desmond.pdf; pp27-28, lines 1-3, Richard Peppiatt, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-12-January-2012.pdf
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One of the consequences of this approach was that legality, or in some cases, the risk of being sued, became the touchstone of acceptable conduct. A number of editors and executives gave evidence that they would be more likely to engage in conduct which might amount to a civil wrong if they knew that the subject of a story or photograph was not likely to bring a civil action. This was to some extent evident in the evidence provided by Mail on Sunday editor, Peter Wright, who said:45 Sometimes [duty lawyers] are overcautious, and in particularly on celebrity stories, you have to take a view to were talking about libel here there are certain individuals who are very likely to sue and other individuals who, for whatever reason, are very unlikely to sue, and because Ive been doing this job for a very long time, I may have a better knowledge of that than the duty lawyer. The duty lawyer will point out to me, Look, this could be there could be a risk here, and its their job to point out the risk. Its my job to take the decision.
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The prioritisation of the management of legal liability over ethical risk was present in the legal departments of some newspapers. Senior lawyers who gave evidence to the Inquiry narrowly defined the scope of their responsibilities to exclude any comment on ethical risk as opposed to legal risk and liability. This was particularly evident in the legal department at NI. Lawyers would not advise about the legality of methods used to obtain information,46 nor would they advise on the PCC Code which was an editorial matter.47 Their remit focused on all aspects of libel law and the legal risks attendant on defamation; dealing with post publication complaints; and copyright complaints.48 The position was the same at Express Newspapers.49 The consequences of the focus on legality over ethics were eloquently captured in the evidence of Mr Peppiatt. He commented on the distinction between a legal and a moral sense of truth:50 The legal sense of truth is sort of: what can we get away with saying? Thats sort of the legal sense. The moral sense would be more: what would be a fair way to represent this? What would be an accurate way to represent this? Now, tabloid newspapers have no interest in the moral sense. All they want to do is think: what can we get away with saying? How far with we push the boundaries and get away with it? As you see when you have these monsterings of people, its sort of: how far with we push it? If one newspaper pushes the line, everyone rushes to fill the void behind them. Its just a matter of: what can we get away with saying? Theres no consideration of: what are the ethics? What are the moral considerations?
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pp32-33, lines 15-14, Paul Silva, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-11-January-2012.pdf; p73, lines 9-20, Peter Wright, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Transcript-of-Morning-Hearing-11-January-2012.pdf; 46 pp1-2, paras 1-2, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-JonathanChapman.pdf 47 pp66-69, lines 16-7, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-13-December-20111.pdf; p85, lines 2-25, Jonathan Chapman, http://www.levesoninquiry.org.uk/ wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-14-December-2011.pdf 48 p3, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-JonathanChapman.pdf 49 p23, lines 10-15, p25, lines 18-22, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/WitnessStatement-of-Jonathan-Chapman.pdf 50 p28, lines 4-22, Richard Peppiatt, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-29-November-2011.pdf
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It appears that sometimes the fact that conduct was legally permissible became an excuse not to probe whether conduct was also morally acceptable. This is particularly so in relation to libel (can we prove it is true?) as distinct from privacy (does it transgress Article 8 rights?) although the latter is increasing in prominence as the law has had to deal with an increasing number of complaints in this area. Another damaging tendency was, and is, for editors to measure the rectitude of their reporting against the conduct of their competitors. A number of editors and journalists, when asked to justify some of the more egregious examples of misconduct discussed in this Report, relied heavily on the fact that other titles were printing the stories. For example, Mr Desmond would not accept that Mr Hill behaved unethically in relation to his stewardship of the coverage of the McCann story. When asked whether he agreed that it was up to the editor not to behave in such a way, he replied No, not at all. Every paper I didnt bring every paper with me, but Im sure we can justify my statement every paper every day for that period of time was talking about the McCanns. It was the hot story it was the story.51 Mr Hill was likewise unrepentant about the coverage of the McCann case. He justified it as follows:52 My decision was made because I believed that the stories were true and that the readers of The Daily Express had an interest in them. The Daily Express was not the only medium that published offending stories. They appeared widely in the press and on every TV station. I have never made up a story or asked anyone else so to do. Of course, if there is a big story, there is also pressure to get the best lines because it is a highly competitive industry. However, that does not mean that journalists will invent stories and that newspapers will print made up stories.
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It is notable that his justification again relied heavily on the fact that other titles were printing the stories, as if that in itself provided a basis for vindicating the accuracy of the story. Editorin-Chief of Associated Newspapers, Paul Dacre, whilst accepting that errors had been made in the reporting of Mr Jefferies case, emphasised that coverage by the Daily Mail was less offensive than at many other titles.53 In this respect, he agreed with the suggestion that there is a snowball effect that impacts on the way in which other newspapers report the same story, observing: I think the way the boundaries are pushed by the press collectively almost encourages some papers, not all papers, to push the limits too far.54 An element of relativism was again evident in Mr Dacres appraisal of Daily Mails coverage of the McCann story: I think looking back there was obviously the odd article that we regretted. I think but I think, on a balanced view of the Daily Mails performance on that story over the years, I think we were at the more responsible end. 55
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Mr Dacre described the pressure within the newsroom to carry the same stories as other papers. [T]his was the most extraordinary story. There have only been two or three in my lifetime. You could actually see, when you got the circulation reports of other newspapers that week, people putting the McCanns on the front pages, their circulations went up. I remember the rows and recrimination in our offices that we werent carrying these stories. Well, in retrospect, Im glad we didnt carry those stories.56 2.74 The Rt Hon Gordon Brown MP, characterised the combined effect of some of these factors as amounting to or creating a race to the bottom in standards.57 No doubt he was deploying all his rhetorical skills to make his point, but putting the same point another way and certainly somewhat less aggressively, it must be accepted that there is not a race to the top. The combined effect of the predominance of commercial considerations, the lack of clear ethical direction from the top, the subordination of ethical considerations to legal risk, and the element of moral relativism involved in seeking to justify ones own conduct with reference to what others were doing at the same time, gives rise to the strong suspicion that ethical practice was not always given the central position it deserved within the culture of a significant section of the press. Aside from the issue of leadership, that of internal governance also falls to be addressed. The point has already been made that governance within newspapers has a tendency to be informal and personality based. Given the nature of this type of business, much will always depend on the personal qualities of those at the top of the organisation, and it is understood that proprietors in search of profit in a declining market will naturally enough be tending to focus on the commercial and charismatic qualities of their editors, in particular on their ability to enhance the saleability of their product. That said, it is clear from some of the evidence received by the Inquiry from those in senior editorial and management positions that a high value is placed on the maintenance of ethical standards in certain sections of the press, and on that basis there is no reason why this level of practice should not be capable of being replicated across the board. Proper internal governance also involves the creation and implementation of systems of standards, training, supervision, audit and review. In most titles the evidence pointed to the existence of systems which may fairly be described as informal and cursory. Many editors have informed the Inquiry that in a fast-moving news and current affairs environment it would be quite unrealistic to expect anything more formal, still less the imposition of systems which would entail undue bureaucracy and sclerotic decision making. I am not proposing this sort of regime because I too understand the practical realities as well as the obvious risk that going too far would be counter-productive. Nonetheless, it is clear to me that more could and should be done to ensure that potentially problematic cases are addressed in a more structured manner with key decisions recorded, with short reasons given, in order both to improve the decision making process and enhance accountability. I have already made the point that much of the content of newspapers is uncontroversial in the sense that it does not create significant legal and ethical risks. I also fully understand and
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p81, lines 14-22, Paul Dacre, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcriptof-Afternoon-Hearing-6-February-20121.pdf; p9, para 30, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Peter-Hill.pdf; p39, lines 16-23, Paul McMullan http://www.levesoninquiry. org.uk/wp-content/uploads/2011/11/Transcript-of-Afternoon-Hearing-29-November-2011.pdf 57 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Gordon-Brown-MP.pdf
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appreciate that the majority of celebrity reporting is based on information provided directly by the individuals themselves, or by their agents. However, experienced editors, sub-editors and lawyers must develop an accurate sense of which stories are likely to test the boundaries of legal and ethical reporting, and, in any event, systems should be in place to assess risk in these respects. For example, the big stories which attracted a significant proportion of the time and attention of this Inquiry quite obviously fell in that category even before they ever saw the light of day; and the same applies, albeit to a lesser extent, to many of the smaller stories which the Inquiry has examined. 2.78 Equally, and in this regard it is appropriate to speak very generally, stories which appear to have been obtained by surreptitious means are likely to attract greater risk. I believe that had more time been taken in these instances for discussion about both the legal and ethical risks, and the quality and reliability of the sources, with that discussion noted contemporaneously for review and audit after the event, it is probable that far fewer of these objectionable stories would ever have been published. Furthermore, the implementation of systems which require a greater element of formality and accountability is likely to lead in the longer-term to the fostering of a culture which is both more risk averse and more respectful of the legitimate private rights of individuals. Finally, I would also like to add a word on journalism training. I have not sought to look at the adequacy of the training available to, or provided to, journalists. However, a number of professors of journalism have given evidence to the Inquiry and it is apparent from their evidence that the schools of journalism are committed to offering high quality training in which ethical journalism plays a full part. Largely as a result of the financial pressures on parts of the press, journalism training is increasingly moving away from newsrooms and into the universities. There is also an important role for ongoing in house training, including in relation to new laws and ethical or compliance issues that are highlighted by particular cases. A number of titles have told the Inquiry that they work with the PCC to deliver training on specific issues as appropriate. It is clearly important that the industry generally, and employers in particular, should place a high priority on training to ensure, inter alia, that all journalists understand the legal and ethical context within which they work.
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3. the relevance of the internet

3.1 Many editors and commentators have argued that the burgeoning of the internet is likely to render irrelevant much of the work of the Inquiry even assuming that it has not already done so. If, for example, celebrity Xs privacy is violated online, then the metaphorical cat is well out of the bag, and there is no reason why open season should not exist in the printed media. A clear exemplification of that argument is the justification used by The Sun in relation to the Prince Harry photographs, discussed in Chapter 5. In my view, this argument is flawed for two reasons. Putting to one side publications such as the Mail Online which bind themselves voluntarily to the Editors Code of Practice (and which is legitimately proud of the world-wide on line readership that it has built up), the internet does not claim to operate by any particular ethical standards, still less high ones. Some have called it a wild west but I would prefer to use the term ethical vacuum. This is not to say for one moment that everything on the internet is therefore unethical. That would be a gross mischaracterisation of the work of very many bloggers and websites which should rightly and fairly be characterised as valuable and professional. The point I am making is a more modest one, namely that the internet does not claim to operate by express ethical standards, so that bloggers and others may, if they choose, act with impunity.
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The press, on the other hand, does claim to operate by and adhere to an ethical code of conduct. Publishers of newspapers will be (or, at least, are far more likely to be) far more heavily resourced than most, if not all, bloggers and websites that report news (as opposed to search engines that direct those on line to different sites). Newspapers, through whichever medium they are delivered, purport to offer a quality product in all senses of that term. Although in the light of the events leading to the setting up of this Inquiry and the evidence I have heard, the public is entitled to be sceptical about the true quality of parts of that product in certain sections of the press, the premise on which newspapers operate remains constant: that the Code will be adhered to, that within the bounds of natural human error printed facts whether in newsprint or online will be accurate, and that individual rights will be respected. In contrast, the internet does not function on this basis at all. People will not assume that what they read on the internet is trustworthy or that it carries any particular assurance or accuracy; it need be no more than one persons view. There is none of the notional imprimatur or kitemark which comes from being the publisher of a respected broadsheet or, in its different style, an equally respected mass circulation tabloid. The second reason largely flows from the first. There is a qualitative difference between photographs being available online and being displayed, or blazoned, on the front page of a newspaper such as The Sun. The fact of publication in a mass circulation newspaper multiplies and magnifies the intrusion, not simply because more people will be viewing the images, but also because more people will be talking about them. Thus, the fact of publication inflates the apparent newsworthiness of the photographs by placing them more firmly within the public domain and at the top of the news agenda. As Professor Baroness Onora ONeill made clear58, it is important: to recognise the extent to which exposure to media content is unchosen particularly by children, those in institutional settings, and those in public places. Regulation should have regard to the realities of media penetration rather than assuming that it always reflects consumer choices.
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Ultimately, this is most decidedly not a debate about free speech. A newspapers right to publish what it chooses within the general law (whether or not it complies with the Editors Code) is not in question, although within a more robust regulatory framework the consequences of a breach of the Code, publication having occurred, might well be such as to have a deterrent effect. To turn this into a debate about free speech both misses the point and is in danger of creating the sort of moral relativism which has already been remarked on. This is, or at least should be, a debate about freedom with responsibility, and about an ethical press not doing something which it is technically quite able to do but decides not to do. This freedom (and where the editors choose to draw the line whether rightly or otherwise) was neatly encapsulated by the decisions taken in relation to Prince Harry and the Duchess of Cambridge.
4. the press response to this inquiry

4.1 Our free press has been and is entitled to comment as it chooses on the work of this Inquiry, and although I am equally entitled to exercise my own right of free speech, I am firmly of the view that it is not for me to reflect any commentary back onto the press. However, it is right that I make an observation on one matter.
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The publicist, Max Clifford was asked to comment on the effect, if any, that the Inquiry and the general public mood were having on the current work of the press. He said this:59 Q. Do you have any feel for whats going on at the moment? Has the scandal which broke last summer had a chilling effect on the types of methods which are being used now to obtain stories? A. I mean hopefully yes, I mean, its frightened people and made them stop those kind of things, which is what I believe and sincerely hope, but also the effect of this Inquiry, I think, has frightened editors, so, you know, for example, in recent months theres several major stories which would have dominated the headlines that Im aware of which havent come out. Q. I dont want you on that topic to say anything which would invade any individuals privacy, but can you give us some idea of what exactly it is which is holding editors back from publishing the sort of story you have just mentioned? A. Well, I think its a backlash. Its a public backlash. I mean, what really got the British public angry was Milly Dowler and the McCanns, wasnt it? People like that. You know, stars having their phones tapped, people like myself that are successful, wealthy, have done very, very well out of the media or films, television, so what, those people dont care, they have far more important things to worry about. But when they read and heard about Milly Dowler, when they read and press. Its the best chance anybodys got, otherwise were like Chinese and Russians and just slaves to the system. But are they savage? Can they be savage? Absolutely right. Of course some of the most successful papers are the most savage because an awful lot of people would much rather read nasty things about other people than nice things.
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I have no hesitation in accepting the way in which Mr Clifford characterises the present position. He gave his evidence in a forthright manner and had no reason or motive to mislead the Inquiry. I do not interpret his evidence as suggesting that press conduct has been exemplary since July 2011, and that in any event would not accord with my own experience: indeed, three of the case studies as discussed earlier,60 post date the commencement of this Inquiry, and, whatever view might be taken of these stories, indicate that the chilling effect of the Inquiry (if it exists at all) is limited. If, as appears likely, the press, or certain sections of the press, have exercised a substantial measure of self-restraint for the reasons explained by Mr Clifford or otherwise, I do have to ask myself what will happen after this Report has been published and memories begin to fade. I have little hesitation in concluding that, unless something is done about it, the press would fairly speedily revert to type: in other words, it would start printing the sort of stories to which Max Clifford has alluded. It is not difficult to come to such a conclusion given the history of self-regulation of the press, and the lessons to be derived from that. Part D Chapter 1 of the Report recalled the cyclical nature of press self-regulation. In the aftermath of the three Royal Commissions, the Younger Report, Sir David Calcutt QCs two reports, and the death of Princess Diana, the press has shown signs of reform and signs of self-improvement only to regress in the years that follow, prompting the need for a further Royal Commission, public inquiry or similar. The fact is that many of the root causes of the problems in the culture practices and ethics of the press (in particular, commercial pressures in a declining market-
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place) endure, and, to be blunt, a fairly basic understanding of human nature suggests that the problems identified are unlikely to be eliminated by self-control. 4.5 This is not to be interpreted as an altogether pessimistic message. There are many who argue that it would be a mistake to swim against the tide of human nature. That viewpoint may or may not be correct in other contexts, but in my view it does not apply in the present. A laissez faire approach would carry with it a pessimistic message, but that is both negative and unrealistic. The real problem which I believe exists within the culture, practices and ethics of the press justifies, if not demands, a more robust system of independent press regulation which is capable of addressing that problem head on. Not merely would such a system have the obvious benefit of meeting the immediate needs of those who have suffered at the hands of the press, it would also bring about, incrementally and over the course of time, lasting change within the culture, practices and ethics of the press to a point when it would no longer be appropriate to speak of practices which are cultural. Instead, we would have arrived at a state of affairs in which any failings or lapses would indeed be isolated and straightforward examples of frank human error or, as one press core participant has put it, unadorned errors of judgment which would not be evidence of a sub standard culture or practices. Putting to one side the current investigations, the clearest message which comes out of the entirety of this lengthy part of the Report addressing the culture, practices and ethics of the press overall is that, time and time again, there have been serious and uncorrected failures within parts of the national press that may have stretched from the criminal to the indefensibly unethical, from passing off fiction as fact to paying lip service to accuracy. In doing so, far from holding power to account, in these regards the press is exercising unaccountable power which nobody holds to account. In my view, the maintenance of the status quo is simply not an option; the need for change in internal but most importantly in external regulation has been powerfully identified. There is a corollary point which I also wish to emphasise. Lord Black told the Inquiry that in his view the phone hacking scandal by itself was [i]n terms of the architecture of the system... the most obvious example of why urgent reform of the system is needed.61 Lord Black did not provide any further examples justifying the need for urgent reform, but the lengthy pages of this Part of the Report most certainly do. It has not been my purpose or endeavour to apportion blame but it has been necessary to set out the substantial, if not overwhelming, weight of evidence which not merely justifies but requires regulatory form in a manner which meets public expectations and the public interest. In my view the case for such reform has been proven many times over. Having made this fundamental point strongly as I am able, I return to what I said at the very start of Part F of the Report. I recognise the constitutional important of free speech within the context of a responsible press, and I also recognise that most of what the press does is good journalism free from the sort of vices I have had to address at length. No one reading this Report in full should come away with the impression that the press as an industry is shot to pieces. It is not; but at the same time as acknowledging that, I also state and repeat that what has come out of the investigation that this Chapter of the Report summarises demonstrates that it is essential that the need for a fresh start in press regulation is fully embraced, and a new regime thereafter implemented.
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Chapter 1 | Policing with Consent: The role of the press
parT G The press and The police: The relaTionship

G
chapTer 1 policinG wiTh consenT: The role of The press

1. Introduction
1.1 The issues addressed in this Part of the Report, driven largely by understandable public concern, were expressed succinctly by Robert Jay QC in opening Module Two of the Inquiry:1 Public concern hereabouts may be expressed in just one sentence: the relationship between the police and the media, and News International in particular, was, at best, inappropriately close and if not actually corrupt, very close to it. Furthermore, the nature of this relationship may explain why the police did not properly investigate phone hacking in 2006 and subsequently in 2009 and 2010, preferring to finesse the issue on these later occasions by less than frank public statements. 1.2 In seeking to address these key questions, the Inquirys Terms of Reference require an examination of the relationship between the press and the police, a review of the extent to which the current policy, practices and regulatory framework has failed, and a consideration of any recommendations as to the future conduct of relations between the police and the press. Although this requires the Inquiry to consider the conduct of the police, that scrutiny only applies to the extent that that conduct meshes with the relationship between the police and the press, rather than more generally. The primary focus of the gathering of evidence has been directed towards possible recommendations for the future; inevitably, that has involved a reflective and analytical investigation of the past which identifies areas of practice which can be subject to critical appraisal. During Module Two, the Inquiry heard oral evidence from 93 witnesses. 36 of these were serving or former police officers, including the current Commissioner of the Metropolitan Police Service (MPS) and 11 Chief Constables. Evidence was also taken from 25 journalists. Much of the evidence has testified and paid tribute to the high standards maintained and hard work carried out by the Police Service, often in very challenging circumstances. There has been real support for the positive aspects of the relationship between the police and the press and the way in which they can work together (for example in relation to appeals for witnesses). However, the Inquiry has also heard evidence which leads me to conclude that the relationship is in need of recalibration. Bernard Hogan-Howe, the Commissioner of the MPS, conceded on arriving to the role in September 2011 that it is right to observe that those relations [that is to say, the relationship between the MPS and the media] were in neither a normal nor an entirely healthy state.2 Furthermore, the Commissioner went on:3 I recognise that there is a need to review and improve our relationship with the media. It seems clear from recent events relating to phone hackingthat the
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pp 8-9, lines 21-4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/lev270212am.pdf p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Commissioner-BernardHogan-Howe1.pdf 3 p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Commissioner-BernardHogan-Howe1.pdf

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PART G | The Press and the Police: the Relationship
boundaries between the MPS and the media need to be reconsidered and reset. However, I would not wish to return to a police service which is perceived as secretive and unaccountable by the public and considered unprofessional by the media. 1.5 The stark suggestion that the original police phone hacking investigation in 2006, Operation Caryatid, was curtailed because of pressure from News International is covered in detail in Part E, Chapter 4 of this Report. In reaching conclusions and considering recommendations for the future in this part of the Inquiry, I have considered and examined the different potential manifestations of the arguably over-cosy relationship between the police and the press, both through the detailed example of Operation Caryatid and the experiences of the day-to-day relationships that we have heard about from both the press and the police; it is only through this process that the exact nature of the underlying problem might be ascertained. Mr Jay provided a summary of these manifestations, in no particular order, in his opening submission to Module Two:4 First, the acceptance and conferring of inappropriate hospitality. The risks here are self-evident. Secondly, the giving and receiving of off the record briefings. Again, the risks here are pretty much self-explanatory, but apart from the obvious lack of transparency the person doing the briefing will often have an agenda and each party will be hoping for, if not expecting, future favours. Thirdly, the kindred problem of leaks, putting to one side genuine whistle-blowing. Fourthly, the equally associated problem of the attribution by the Press of police sources to stories. This is a term which is redolent of impropriety, or at the very least carries with it the possibility of inappropriate behaviour, either because the police officer has indulged in gossip or leaks, or because the term is in truth a cipher or figleaf for an invented story because the source does not in fact exist. It should also be recognisedthat the so-called police source may not be a police officer but someone associated with the Police but from outside the MPS. Fifthly, the Press turning up at incidents, or at newsworthy occasions, because they have been tipped off by a Police officer. Again, this is indicative of an unhealthy relationship existing between individual police officers and individual members of the press 1.6 These five potential features or manifestations of what may be an underlying problem in the relationship between the police and the press are not intended to be an exhaustive list of the issues that are considered in this part of the Report. It is also important to emphasise that some of these issues have also been dealt with or touched on in the recent reports of Sir Denis OConnor (then HM Chief Inspector of Constabulary)5 and Mrs Elizabeth Filkin (reviewing the position at the MPS).6 I have been much assisted by their work, which is covered in more detail in Chapter Three below.
pp14-15, lines 19-20, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Robert-Jay-openingsubmission-for-Module-23.pdf 5 HMIC Without Fear or Favour: A review of police relationships http://www.hmic.gov.uk/media/a-review-of-policerelationships-20111213.pdf 6 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf
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2. The purpose of the relationship and public confidence

2.1 2.2 The relationship between the press and the police, and between the press and the public, is a keystone in the foundation of a democracy and an effective criminal justice system. The approach to policing in this country can be explained as policing by consent. Commissioner Hogan-Howe described this concept as meaning policing with, and on behalf of, the public. It is axiomatic therefore that public confidence in the police is a key element in sustaining this model. Commissioner Hogan-Howe stressed in his evidence to the Inquiry that the public have been, and must continue to be, partners in preventing and solving crime, and that this is most effectively achieved through the conduit of the media which enables witnesses to come forward and provide evidence. It can also be said that an effective and professional relationship with the media can often prevent an operation being jeopardised. Agreements can be reached between the media and police officers that the former will not run a particular story until such time as it is operationally safe to do so; it is argued, with real force, that this is a vital part of the relationship. Similarly, victims can be protected in cases such as kidnapping and murder, where the running of news stories prematurely could either prevent the release of the victim or the apprehension of the suspect.7 Cressida Dick, Assistant Commissioner Specialist Operations in the MPS, expanded on this point:8 Its very important that the public understand policing as much as they can, and also that they hold us to account, and they can only do that by knowing about policing. We need the public to help us in a variety of ways. Obviously we need information about crimes that have happened, but also we need people to have confidence in the police and in the whole system, so that they will give us intelligence or give us evidence, be witnesses, provide observation posts 2.4 In his evidence, Sir Denis OConnor described the importance of public opinion its another anchor pointin police legitimacywith a measure of public sentiment, anything is possible. Without it, progress is very difficult 9 Further, the HMIC report, Without Fear or Favour: A review of police relationships, argues that the police are part of the community they serve and therefore need relationships with it, including with the media, to carry out their role effectively.10 Given that the police operate with the consent of the public, the media also play a key role in holding the police to account by providing transparency and challenge. HMIC suggests that the police use the media for a variety of reasons, including to reassure the community they serve, to reduce the fear of crime, and to enhance public confidence in the Police Service. Furthermore, HMIC contends that the overarching principle of police relationships with the media is that the Police Service should not seek to constrain the media but allow them accurately to report news from which the principal beneficiary is the public.
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pp8-9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-CommissionerBernard-Hogan-Howe1.pdf 8 pp15-16, lines 24-7, AC Cressida Dick, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-12-March-2012.pdf 9 p7, Iines 5-8, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-12-March-2012.pdf 10 p27, HMIC (2011), Without Fear or Favour: A review of police relationships, http://www.hmic.gov.uk/media/areview-of-police-relationships-20111213.pdf
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Appropriate and transparent contact and communication between the police and the press is, therefore, crucial to ensure that this accountability is maintained. It might be said that, where relations are poor and there is insufficient engagement, public confidence will suffer. That was certainly the view of Lord Macdonald of River Glaven, the former Director of Public Prosecutions (DPP), in his evidence to the Inquiry. He explained, in relation to another key part of the criminal justice system, the Crown Prosecution Service (CPS), that when he took up the post of DPP there had been a long legacy of mutual distrust. I believe the CPS was seen by the media (and by the public) as opaque, remote and unaccountable.11 Lord Macdonald took the view that this was extremely damaging to the CPS and to public confidence in the criminal justice system more generally. As a result, he initiated a policy of closer engagement between the CPS and the media and argued that this impacted positively on the way that the CPS was portrayed by the media, not because journalists were somehow lulled into reporting on the organisation more favourably, but because it was able to speak to journalists more openly about the positives. More importantly, Lord Macdonald stressed that this openness emphasised the accountability of the CPS as a public service.12 There is, therefore, a clear and overwhelming public interest requirement for the police to communicate with the public. The police, acting corporately, currently reach the public primarily through the filter of the media.13 For this reason the relationship between the press and the public is also vitally important: this serves to emphasise the significance of the concerns outlined in Part F of the Report. Peter Clarke, formerly Assistant Commissioner Specialist Operations in the MPS, sought to describe this interrelationship:14 theres an extent to which the police interest and the public interest overlap, but overwhelmingly, the police exist to serve the public interest, so the public interest is obviously paramount.
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A close and transparent working relationship between the police and the media is also essential to guaranteeing fair reporting and effective policing. As the MPS argued in its opening statement to the Inquiry:15 Properly structured, such a relationship improves the scope, depth and accuracy of press reporting and enables the police better to perform their duty of protecting the public. It is through healthy and open contact with the police that the media are able properly to report on the criminal justice system. It is through contact with an honest and intelligent press that the police are able to engage and inform the public not just with a view to solving crime but also as a means of warning and protecting the public where necessary.
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Commissioner Hogan-Howe identified five areas in which keeping the media properly informed about policing and criminal matters was critical to the functioning of the MPS (and, presumably, to the functioning of the Police Service more generally). First, through the media, the organisation is able to communicate its key messages regarding the prevention and detection of crime. Second, a healthy relationship with the media can serve to increase the publics understanding of how the MPS goes about its work of policing London. Third,
p30, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Lord-Macdonald-QC1. pdf 12 p32, ibid 13 p6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Ed-Stearns.pdf 14 p9, lines 20-23, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-1-March-2012.pdf 15 pp7-8, para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Opening-Statement-on-behalf-ofthe-Metropolitan-Police-Service.pdf
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the relationship provides an important means by which the MPS can seek the assistance of the public in that work. Fourth, contact with the media, properly handled, serves to increase public confidence in the police and to promote a greater understanding of MPS policies and initiatives. Fifth, it provides the means by which the public can scrutinise police actions and policies. It also allows the police to test the persuasiveness of their strategies, policies and tactics. It is suggested that a plan that can withstand a searching press conference is usually at least credible.16 2.10 The importance of the relationship was echoed in the evidence throughout this part of the Inquiry by police and press alike. By way of example, former Commissioner of the Metropolitan Police Lord Condon told the Inquiry how strong relations with the media were essential and in the public interest. 17 They enabled him to give confidential briefings to the press on sensitive issues such as terrorism, preventing potential leaks that would have damaged police investigations.18 Similarly, Assistant Commissioner Dick described the relationship as: crucial and important.19 In addition, many crimes were solved as a direct result of assistance from the media who communicate with the public at large.20 As a counterpoint to this relationship, Sandra Laville, crime correspondent for the Guardian, argued, I have no doubt correctly, that journalism had a legitimate and proper role in a democratic society to interrogate, challenge and question in the public interest or, in other words, to be the peoples eyes and ears.21 Mrs Filkin, in her evidence to the Inquiry, agreed with this contention and reiterated the importance of the police maintaining a strong working relationship with the media given the coercive powers afforded to policing.22 Mrs Filkin argued therefore that the police should actively protect proper scrutiny of their work:23 the police have very, very extensive powers, and those powers, for the rest of us, need to be under constant scrutiny, to make sure they havent overstepped their mark in the powers that they have and theyve operated those powers properly. Obviously, they have to do that themselves as well, but we need outside agencies who constantly also scrutinise what these very powerful organisations do, and the media is important for doing that. And I would hope that as an important public institution, the police would also see that they had a role in protecting that scrutiny, that that scrutiny was valuable to them in helping them do their job properly 2.12 It is clear that the MPS faces its own challenges in ensuring that the public are informed about the work of its officers and staff and the organisation as a whole. Mr Tim Godwin, formerly Deputy Commissioner of the MPS, observed that from 2000/2001 the media focus appeared to shift towards individuals, predominately to senior police officers.24 This, he said, replicated the rise of the celebrity police chief in the USA where individuals were credited with significant crime reduction in particular cities. Mr Godwin said of this media approach:25
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p8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Commissioner-BernardHogan-Howe1.pdf 17 p24, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Condon.pdf 18 pp6-7, ibid 19 p7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-AC-Cressida-Dick.pdf 20 p11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sara-Cheesley.pdf 21 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sandra-Laville.pdf 22 p10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf 23 pp102-103, lines 15-3, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf 24 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Tim-Godwin.pdf 25 p51, lines 6-10, Tim Godwin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-7-March-2012.pdf
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I thought that that actually undermined the efforts of lots and lots of people who were doing great things and that generally an individual wasnt in themselves able to bring about things like crime reduction in a city like London.
3. Tensions in the relationship between the media and the police

3.1 Dr Rob Mawby, lecturer in criminology at the University of Leicester, suggested that tension was endemic to the police-media relationship. Dr Mawby argued that this was understandable given that the media and the police occupied roles in public life that periodically brought them into conflict.26 As to the root of this tension, Dr Mawby offered this view:27 The root of the tension is the different roles and objectives of the police and the media. The police are in place to detect crime, to maintain order. The media are there to maximise their audiences, to run successful businesses, and also to hold the police to account. So although they have things in common, theres always going to be a bit of tension in that relationship, which will ebb and flow. 3.2 On this point, Ed Stearns, Chief Press Officer in the Directorate of Public Affairs within the MPS, observed:28 the media will want to know everything, and there are reasons why the police, operationally or for personal in terms of victims, well, I cant give them everything. So there is a tension and I think its something that has probably been around for many years. 3.3 Dr Mawby went on to suggest that this inbuilt tension in the relationship between the press and the police may actually be in the public interest, as long as that tension operates within a healthy framework, where the police are trying to be open and accountable and the media are trying to hold them to account and where theres clear channels to pass information. 29 This inherent tension sometimes leads to discontent on the part of the media that they are not receiving all the information they want, and concerns on the part of the police that the activities of the media may interfere with operational policing. In relation to the first point, for example, Adrian Faber, Editor of the Wolverhampton Express & Star, complained that there were often delays in the release of the names of people killed in road accidents or other incidents. Mr Faber fully accepted the need for the police to inform relatives before the details were released, but suggested that the release of the names of the deceased could take several days, by which time the information became journalistically worthless as it had already appeared in the social media as well as being known in the general community.30 In relation to the second point, the evidence the Inquiry has heard indicates that, particularly when high profile incidents catch the attention of the public and the media alike, the level of press interest can be enormous and, furthermore, that this can impact on police investigations.
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p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Dr-Rob-Mawby.pdf pp81-82, lines 20-2, Dr Rob Mawby, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am. pdf 28 p40, Iines 9-13, Ed Stearns, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am.pdf 29 p82, lines 6-10, Dr Rob Mawby, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am.pdf 30 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Adrian-Faber.pdf
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Tensions in the relationship can also be caused by the individual needs of the different sections of the media. Lucy Panton, former crime editor of the News of the World, for example, said that as the Sunday representative for the Crime Reporters Association (CRA) she had spent years trying to better the polices understanding on what Sunday newspapers needed from them. It has always been the case that police briefings are directed at meeting the needs of daily papers. I used these meetings to try and inform and change the way police used the Sunday papers. 31 Jerry Kirkby, Assistant Chief Constable of Surrey Police, explained that following the disappearance of Milly Dowler, Surrey Police media relations officers described the media demands made upon them as alien, a steep learning curve, just immense, relentless and overwhelming.32 Senior police officers involved in the case described elements of the press as extremely demanding, and in some respects mischievous, and the level of interest as unprecedented and immense.33 The unprecedented demands also meant that some parts of the media felt that they were not being given the information that they required, and this led to some tensions.34 This tension in the relationship between the press and the police can also have unwanted consequences for those caught in the middle of a major investigation. Christopher Jeffries, who was arrested in connection with the murder of Joanna Yeates, described the media interest in him as enormous. He said that he was effectively under house arrest moving between friends houses like a recusant priest. 35 From the police perspective, Detective Chief Inspector Philip Jones described it as an unrelenting media interest from the point that Joanna was reported missing.36 Dr Gerry McCann said of the media interest following the disappearance of their daughter Madeleine: Nothing could have prepared us for the unprecedented media coverage, particularly in Portugal and the UK which followed and spoke of the intensity of media focus.37 In December 2006, following the discovery of the bodies of five young women in Ipswich over a ten day period, there was an explosion of press coverage. The Senior Investigation Officer, then Detective Chief Superintendent Stewart Gull, said that:38 the level of interest shown by not only the local and regional media but also national and international media was unprecedented.
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pp7-8, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Lucy-Panton. pdf 32 p5, lines 13-23, Jerry Kirby, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-MorningHearing-27-March-2012.pdf 33 p7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Assistant-ChiefConstable-Jerry-Kirkby.pdf 34 p8, ibid 35 p15, Iines 3-12, Chris Jefferies, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofMorning-Hearing-28-November-2011.pdf 36 p101, Iines 13-14, DCI Philip Jones, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-27-March-2012.pdf 37 pp2-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Gerald-PatrickMcCann.pdf 38 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Stewart-Gull.pdf
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He went on:39 There were at times somewhat I considered to be unhelpful, unjustified and unbalanced media reporting which at best was misleading and at worst caused further anxiety and worry within the local community. 3.11 For the duration of the investigation of the Ipswich murders, known as Operation Sumac, Suffolk Constabulary implemented a dedicated media strategy.40 One of the key lessons learned from this was that maintaining positive media relations took up a vast amount of time for the officer nominated as spokesman, and that needed to be accounted for in the investigative structure so that operational policing could continue effectively.41 Suffolk Constabulary took the conscious decision that all comment would be on the record and there was a constant drip feed of information provided to the media.42 Their handling of the media during this particular investigation was widely praised.43 In describing some of the consequences of this sometimes tense relationship, it is perhaps worthy of note that these sorts of events are rare for county police forces, but are certainly more commonplace for the Metropolitan forces, such as the MPS, Greater Manchester Police, West Yorkshire Police and West Midlands Police. This is a theme to which I will return in subsequent sections of this Report.
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p5, ibid p13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Anne-Campbell.pdf 41 p14, ibid 42 p54, Iines 7-19, Anne Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-26-March-2012.pdf 43 pp2-3, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Stewart-Gull. pdf
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Chapter 2 the history of the relationship: Different approaChes

1. Metropolitan police service: the Commissioners
1.1 It might be said that the approach of the Metropolitan Police Service (MPS) to the press has reflected, at least in part, the differing attitude of different Commissioners and the different treatment that holders of that post have received at the hands of the press. The Inquiry heard evidence from a number of recent Commissioners about these variations, and considered their views on the success or otherwise of each approach.
Sir Robert Mark

1.2 The post of Commissioner of the Metropolis is unique given that the post holder is not only responsible for the policing of London but is also seen as the senior figure in British policing. The Commissioner is also personally responsible for the safety of Her Majesty The Queen and senior members of the Royal Family, wherever they are in the world.1 Sir Robert Mark, who was Commissioner between 1972 and 1977, likened the relationship between the police and the press to an enduring, if not ecstatically happy marriage. He sought to establish a new approach to police-media relations in the capital.2 On becoming Commissioner in 1972, Sir Robert was concerned that the senior ranks within the MPS had developed too many fiefdoms; this concern extended to the way in which the supervisory ranks dealt with the media. Sir Robert, who was one of the first Chief Officers to recognise and acknowledge that police corruption was widespread in several forms, decided relentlessly to drive down on it. He had a novel approach to tackling what he thought were unhealthy relationships between some of his senior officers and the press. The result was that, rather than restricting the amount of contact between his officers and journalists, he encouraged and allowed more. Sir Robert issued a new edict allowing all officers of the rank of inspector and above to talk to the media; that privilege had previously only extended to the superintending ranks. Sir Roberts guidelines were simple: officers were allowed to talk about their own work but not about the work of others; he asked his officers to use their common sense in what was disclosed to the press.3 Lord Condon, another former Commissioner of the MPS, argued that since Sir Robert Marks tenure, the post had become irreversibly a very public post and that the Commissioner had become, and was expected to be, a public figure.4
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p4, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Condon. pdf 2 p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Dr-Rob-Mawby.pdf 3 pp12-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jeff-Edwards.pdf 4 p4, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Condon. pdf
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Lord Condon
1.6 Lord Condon was Commissioner from 1993 to 2000. He explained that the Commissioner was the public face of policing in the United Kingdom and therefore the post holder had to deal with the media at an entirely different level of intensity to any Chief Constable; he was able to use, as a point of comparison, the fact that he had previously been the Chief Constable of Kent. He said that there were times while he was Commissioner when his relationship with the media was completely dominating.5 Lord Condon described how he sought to engage with the media in three ways: event-driven press conferences, planned campaign-driven media events, and relationship-building.6 He used Operation Bumblebee, the operation directed at domestic burglary, as a good example of the second type of engagement. He championed these campaigns through personal briefings with the media and interviews.7 Lord Condon also explained how he tried to meet with all print, television and radio editors at New Scotland Yard, their own offices or occasionally over a meal to discuss and promote his reform agenda and views on policing issues.8 As to whether he took the view that it was important to offer greater access to particular parts of the media, Lord Condon told the Inquiry,the Commissioner of the day, Chief Constable of the day, must be totally apolitical and must be totally without any favourites in the media, and so there has to be a without fear or favour approach to the media. 9 Despite these efforts at engagement, journalists perceived the culture of relations between the MPS and the media during Lord Condons period in office as being very restrictive and subject to tight controls.10 Lord Condon himself seemed to recognise this: he described how the Crime Reporters Association (CRA) meetings, for example, petered out during his tenure as Commissioner because he suspected that some of the crime reporters found them a bit boring.11 Lord Condon also accepted that his personal style of media relations, compared with other recent Commissioners, was to keep journalists at a professional distance. Nonetheless, he did not consider it,intrinsically wrong or morally or ethically wrong to be friendly or to have a social relationship with the press.12
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Lord Stevens
1.11 When Lord Stevens took over as Commissioner in January 2000, it was widely acknowledged that the MPS was in crisis as a result of the Macpherson Report13. As a result, Lord Stevens
p14, lines 8-9, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-MorningHearing-6-March-20122.pdf 6 pp4-5, paras 11-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-LordCondon.pdf 7 p4, para 12, ibid 8 pp25-26, lines 12-3, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 9 pp26-27, lines 24-3, Lord Condon, ibid 10 p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sandra-Laville. pdf 11 p23, lines 10-11, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 12 p31, lines 21-23, Lord Condon, ibid 13 http://www.archive.official-documents.co.uk/document/cm42/4262/4262.htm
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Chapter 2 | The History of the Relationship: Different Approaches
took the decision that a wholesale change in culture was needed and he embarked on a major strategy of engagement with the public.14 A key feature of this engagement strategy was developing a closer relationship with the media.15 1.12 This new approach was evident from Special Notice 19/00, A new policy for relations with the media, which I consider in greater detail later on in this Chapter.16 A major theme was to encourage police officers of all ranks to engage with the press, provided that they were qualified to do so.17 Lord Stevens also explained how he worked hard as Commissioner to foster good relations with the media by having lunches with the editors of all the national newspapers and the Evening Standard, and by making himself personally available to speak to journalists.18 Lord Stevens attempted to follow a policy of being open and transparent with the media, giving answers to legitimate questions without going into confidential areas. He felt that it was important to promote what the MPS was doing well but also to have frank conversations about what they were doing badly.19 The change in style between that of Lord Condon and that of Lord Stevens was described by Jacqueline Hames, a former Detective Constable with the MPS, in this way:20 This all changed when Sir John Stevens became Commissioner in 2000 and introduced the current open door policy by which officers are positively encouraged, sometimes even ordered, to allow the media access to operations and to explain all aspects of their work. 1.14 The approach to media relations taken by Lord Stevens appears to have been generally appreciated by the press.21 Michael Sullivan, crime editor of The Sun, for example, said that:22 When he was commissioner, Lord Stevens described crime reporters as part of the extended police family. This should not be taken out of context because he also applied the same description to members of independent advisory groups who worked closely with the Met and helped move themon from the problems around the murder of Stephen Lawrence.
1.13
Lord Blair
1.15 In his evidence to the Inquiry, Lord Blair explained that when he took over as Commissioner in January 2005 he thought that the MPS should spend less time on press matters; he felt in particular that discussion of media positions and opinions had become too consuming of senior officers time, although he did not consider Lord Stevens approach towards the media
pp4-5, para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-LordStevens.pdf 15 pp55-56, lines 22-15, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-2012.txt 16 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-9-Special-Notice-19-00.pdf 17 p12, para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Stevens. pdf 18 p10, para 30, ibid 19 p11, para 33, ibid 20 p3, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-JacquelineHames.pdf 21 p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sandra-Laville. pdf 22 p2, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-MichaelSullivan.pdf
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to have been in any way improper.23 As a result, although he was keen to be open with the media, continuing to have working lunches with members of the press and meetings with the CRA on a monthly basis, Lord Blair had fewer social interactions, and no dinners, with editors and journalists.24 1.16 Lord Blair had a much less positive experience of relations with the media during his time as Commissioner.25 This appears to have been, at least to a degree, a result of infighting and disagreements between senior officers, some of whom Lord Blair suspected of leaking information to the press about disputes within the MPS Management Board.26 The sometimes fraught nature of the relationship between the MPS and the media at this time was recognised by journalists and police officers alike. For example, Mr Sullivan, contrasted the approach under Lord Stevens when things ran pretty smoothly, with that under Lord Blair, when there were difficulties.27 Lynne Owens, formerly an Assistant Commissioner in the MPS and currently the Chief Constable of Surrey Police, commented,I think we saw, during Lord Blairs Commissionership, some commentary on his leadership in the media and I think that did impact on the relationship the MPS formed with the media. 28 The Daily Mail, in particular, was highly critical of Lord Blair both before and during his Commissionership, although Stephen Wright, former Crime Editor and currently Associated News Editor for the Daily Mail, denied that the newspaper had an agenda against him.29
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1.18
Sir Paul Stephenson

1.19 Sir Paul Stephenson described how, upon becoming Commissioner in January 2009, he was concerned about the largely negative commentary in the press during Lord Blairs Commissionership; he believed this reflected poorly and unfairly on the MPS and was distracting for senior officers.30 Whilst he was Deputy Commissioner, Sir Paul had sought to ensure that there was a representative from the Directorate of Public Affairs (DPA) present during engagements with the media in an attempt to bring some structure to the relationship.31 Once Sir Paul became Commissioner he tried an approach of more openness and engagement with the press. Dick Fedorcio, formerly the Director of Public Affairs for the MPS, described Sir
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p7, para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Blair.pdf p14, lines 21-22, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-MorningHearing-7-March-2012.pdf; p9, para 21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/WitnessStatement-of-Lord-Blair.pdf 25 pp5-6, para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Blair. pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Annex-to-Lord-Blair-Statement.pdf 26 pp3, 76, lines 9-21, 7-13, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-7-March-2012.pdf 27 p42, lines 2-7, Michael Sullivan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-15-March-2012.pdf 28 p19, lines 6-10, CC Lynne Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-6-March-2012.pdf 29 p27, line 2, Stephen Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-15-March-20121.pdf 30 pp7-8, lines 12-5, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf; p6, para 15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Witness-Statement-of-Sir-Paul-Stephenson2.pdf 31 p13, lines 2-22, Sir Paul Stephenson http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-5-March-2012.pdf; pp6-7, para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Witness-Statement-of-Sir-Paul-Stephenson2.pdf
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Pauls style as being probably nearer to John Stevens in his style, in terms of his approach.32 Sir Paul emphasised the importance and relevance of the seven Nolan principles of public life,honesty, openness, leadership, accountability, selflessness, integrity and objectivity.33 He also attempted to improve internal communications and to turn all 50,000 or so MPS employees into effective media communicators.34 1.21 More specifically, Sir Paul explained that he felt that some of the contact between the media, particularly the written press, and a small number of senior colleagues was closer than it needed to be.35 Sir Paul did not wish to identify the particular individuals, but clarified that he was concerned about leaks and gossip about disagreements within the Management Board of the MPS. This was damaging because it hindered efforts to have a full and frank discussion in relation to the issues of the day at management board level.36 Sir Pauls approach to media relations was successful to some degree; there were fewer leaks and, in his own words, fewer newspaper stories about disfunctionality in the Met and disfunctionality at senior level during his tenure.37 Kit Malthouse, the former Chair of the Metropolitan Police Authority (MPA), now the Mayors Office for Policing and Crime (MOPC), described Sir Pauls approach at the time as ambassadorial and explained that he was very prominent at civic engagements andhe thought it was an important part of his role to get out and promote the good work of the Metropolitan Police to anybody who would listen. 38 However, it would be accurate to say that MPS relations with the media during Sir Pauls Commissionership were overtaken by events in mid-2011, which I will address in more detail later on in this Chapter. These eventually culminated in his resignation.39
1.22
Commissioner Hogan-Howe
1.23 The current Commissioner took up his post in September 2011. He has seen it as his role to return the relationship between the MPS and the media to what he describes as a more considered and functional state, following the furore caused by the phone hacking affair and the resultant instability and distortion in relations.40 Although Commissioner Hogan-Howe considered the media relations policy established by Lord Stevens to be in the right spirit, he was concerned that the approach had evolved over the years so that on occasions, in
p49, lines 10-12, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-13-March-2012.pdf 33 p8, lines 11-17, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-5-March-2012.pdf 34 p9, para 25, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-PaulStephenson2.pdf 35 p6, para 16, ibid 36 p10, lines 10-24, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf; p8, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Witness-Statement-of-Sir-Paul-Stephenson2.pdf 37 pp17-18, lines 8-8, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf; p9, para 26, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Witness-Statement-of-Sir-Paul-Stephenson2.pdf 38 p25, lines 10-16, Kit Malthouse, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-29-March-2012.pdf 39 pp53-54, para 130, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-PaulStephenson2.pdf 40 p2, lines 12-25, Commissioner Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-20-March-2012.pdf; p3, para 5, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Witness-Statement-of-Commissioner-Bernard-Hogan-Howe1.pdf
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practice, it had led to too close a relationship with the press, or at least a perception that the relationship was too close.41 1.24 I will deal with the current and future approach of the MPS to media relations in later sections of this Chapter.
2. other police forces

2.1 The Inquiry heard evidence about the approach to media relations taken by several police forces other than the MPS. Three important themes have emerged. First, it appeared to be universally accepted that the MPS faced unique challenges in terms of media relations in comparison to other regional forces. Lord Condon argued that the Commissioner of the day is the public face of policing for their country, whether he or she likes it or not, and that brings with it certain demands, and as a consequence he described the role of Commissioner in relation to the media as being fundamentally different and totally more demanding than any Chief Constables role. 42 Lord Blair reinforced this point, highlighting the MPSs responsibilities nationally for counter-terrorism and the protection of the Royal Family, and its long history of policing both public disorder and political demonstrations.43 Chris Sims, Chief Constable of West Midlands Police, suggested that I think there is a very different context in the Met to the context in which we operate outside.44 It is important to note that most journalists employed by national newspapers, including specialist crime reporters, are based in London. John Twomey, crime reporter for the Daily Express, described national newspaper crime reporters as tending to be very Londoncentric.45 It is part of a journalists job to build appropriate relationships with police contacts, and they do so principally with their local force, in this case the MPS. A number of journalists working for national titles gave evidence that their relationships with other police forces were less well established.46 Timothy Gordon, editor of the South Wales Echo, suggested that Id like it to beclear that there is a huge difference between the regional press and what appears to be happening in the nationalsThe regional press is a very, very different arena.47 The second theme to emerge from the evidence was the very different approach to news gathering between national tabloid titles and local media. The third theme to emerge was that different forces had tried different approaches to media relations over the years with differing results.
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p4, lines 3-13, Commissioner Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-20-March-2012.pdf 42 p14, lines 7-24, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 43 p3, para 9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Blair.pdf 44 p57, lines 7-8, CC Chris Sims, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-20-March-2012.pdf 45 p9, para 38, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Twomey. pdf 46 For example: p11, para 24, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statementof-Mark-Hughes-The-Telegraph-taken-as-read.pdf; p8, para 23, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Witness-Statement-of-Thomas-Pettifor.pdf 47 p19, lines 1-14, Timothy Gordon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-20-March-2012.pdf
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Media relations the MPS and County Constabularies

2.4 The former Chief Constable of Cumbria Constabulary, Craig Mackey (now Deputy Commissioner of the MPS), expressed the view that although the MPS still dealt with local journalists in relation to borough-level issues there was:48 then the national dynamic that makes things very different around London, and thats the national media effectively responding as a local media for London, and that does bring a different dynamic in terms of the demands and particularly the level of detail thats required to service that. 2.5 The difference between London and other parts of the country was again echoed by Anne Campbell, Head of Corporate Communications at Suffolk Constabulary. She said this in relation to the MPS:49 It has a unique place in not just the investigations but the issues it covers, because of course it carries out investigations on behalf of a number of the other forces as well, and Im thinking about some of the international investigations wheretheres been cause to send people abroad to investigate. That tends to be the remit of the Met. So the Mets local media, if you like, are the national media, whereas for most other forces its very much a local and regional media. So the Met is very different for a number of reasons. 2.6 The Chair of the Association of Chief Police Officers (ACPO) Communications Advisory Group and Chief Constable of the British Transport Police (BTP), Andrew Trotter (who previously served as a Deputy Assistant Commissioner within the MPS) pointed to the contrast between the challenges faced by the MPS with regard to media relations and that of a regional constabulary. He said:50 the MPS is under intense media scrutiny almost daily, there is frequent contact between Directorate of Public Affairs and national journalistsAs DAC I was often used as the MPS spokesperson. As a result of this experience I lecture on police training courses, and to foreign police audiencesWhen I arrived at BTP the contrast with the MPS could not have been starkerThere was one press officer and little contact with the media other than reactive responses in office hours when the one member of staff was available. 2.7 A similar point was made by Sir Hugh Orde, President of ACPO. He said:51 The culture within the MPS will inevitably be different to that within most other police forces. This reflects the unique position of the MPS in managing some national policing responsibilities and dealing with a high level of scrutiny and the national media on a daily basis. 2.8
48
Sir Hugh went on to explain that the culture within the MPS towards the media was a very different relationship than that experienced by other constabularies because of the sheer
p90, lines 1-9, Deputy Commissioner Craig Mackey, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Afternoon-Hearing-26-March-2012.pdf 49 pp36-37, lines 21-6, Anne Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-26-March-2012.pdf 50 pp17-18, paras 20.1-20.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-ofChief-Constable-Andrew-Trotter1.pdf 51 p5, para 5.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-Hugh-Orde. pdf
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intensity and pressure and interest in whats going on in London is fundamentally different even to the Police Service in Northern Ireland which is pretty busy....52
The differing attitude of the local and national press towards the police
2.9 An important factor in the relationship between the police and the media at a local and national level is that local provincial forces have an existing working relationship with their local and regional reporters (including regional correspondents for national titles). They do not necessarily know or trust the national media who descend occasionally when a big story breaks and have little or no regard to the importance of establishing, preserving or maintaining any sort of relationship as long as they can deliver the immediate story. Anne Campbell also spoke about the different attitude of local and national press towards the police. She felt that the national media were much more difficult to deal with than the local media. She described in particular how local journalists tended to provide a balanced and a rounded view, whereas the national media were not so worried about putting our side of the story; in other words, that balanced view 53 Liz Young, Head of Corporate Communications of the Police Service of Northern Ireland (PSNI), noted that the national media were not as interested as the local media in developing a future relationship. As a result, she argued that they were more likely to act unprofessionally by being over demanding or less sensitive to security issues.54 Gillian Shearer from the Cumbria Constabulary said that the national media, in her experience, were significantly more aggressive than the local media, and less willing to adhere to instructions about what could and could not be published.55 She also confirmed that the misleading use of the term police source had disappeared from the lexicon of the local media (this issue is considered in more detail in later in the Report).56,57 Amanda Hirst, Head of Corporate Communications at Avon and Somerset Constabulary, agreed that the media pressure in high-profile cases could sometimes be intolerable for senior investigating officers, and described how at one point in the investigation of the murder of Joanna Yeates, she had advised Detective Chief Inspector Philip Jones not to watch the news or read the newspapers, such was the coverage that the case was receiving.58 An element in this sometimes difficult relationship is that the MPS press bureau is much better resourced than many local forces. The journalists who gave evidence to the Inquiry were generally positive about their experiences of dealing with the Directorate of Public Affairs (DPA), as a well-resourced operation working around the clock with a sufficient number
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pp86-87, lines 21-1, Sir Hugh Orde, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-hearing-28-March-2012.pdf 53 p50, lines 1-13, Anne Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-26-March-2012.pdf 54 pp34-35, lines 21-8, Liz Young, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-28-March-2012.pdf; p16, para 29, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Witness-Statement-of-Liz-Young.pdf 55 pp64-65, lines 18-11, Gillian Shearer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-26-March-2012.pdf 56 Part G, Chapter 3 57 p78, lines 9-11, Gillian Shearer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-26-March-2012.pdf 58 p26, lines 8-22, Amanda Hirst, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-27-March-2012.pdf
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of suitably trained and experienced staff. In contrast, journalists described some provincial forces as providing a more limited service, for example with a lack of media trained staff on duty at the weekend.59
The different approaches to media relations

2.15 Chief Constable Chris Sims and Chief Inspector Sally Seeley, Head of Corporate Communications, from West Midlands Police, explained that their force had had a very traditional relationship with the media, that is to say a relationship that was reactive, transactional and very much driven by events.60 Despite West Midlands Police being a large force of 13,000 officers and staff, there were only 30 members of staff in the Corporate Communications department, which dealt with all types of communications, not just media relations.61 Both Chief Constable Sims and Chief Inspector Seeley were clear that they could find no evidence of informal contact with the media by their officers, in the sense of social relationships with journalists; working contact was overwhelmingly captured and recorded by the press office.62 However, Chief Constable Sims conceded that there were still problems with leaks from time to time, although it was not considered to be a significant issue; he believed that these occasionally arose as a result of disgruntlement on the part of some officers or staff due to budget reductions or other difficult decisions.63 Chief Constable Peter Vaughan and Catherine Llewellyn, Temporary Assistant Director of Corporate Communications, gave evidence in relation to South Wales Police. Chief Constable Vaughan explained that the policy developed by that force required all ACPO rank officers and senior police staff to be accompanied to meetings and interviews with the media by a member of the media department, and for all contact to be recorded for the purposes of transparency. As a matter of practice, it was expected that this policy would be followed by more junior officers as well.64 Chief Constable Stephen House of Strathclyde Police explained that his predecessor, Sir Willie Rae, had kept a very low profile and took an approach of non-engagement with the media. This had led to some criticism.65 As a consequence, Chief Constable House decided to encourage a more open, proactive approach towards the media and had meetings with all
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2.17
2.18
For example, pp27-28, lines 8-3, Nick Davies, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/ Transcript-of-Afternoon-Hearing-28-February-2012.pdf; p3, para d, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/02/Second-Witness-Statement-of-Nick-Davies.pdf; p12, para 45, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/03/Witness-Statement-of-Scott-Hesketh-taken-as-read.pdf 60 p54, lines 20-24, CC Chris Sims, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-20-March-2012.pdf; p1, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Witness-Statement-of-Chief-Constable-Chris-Sims.pdf 61 p53, lines 13-22, Chief Insp Sally Seeley, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-20-March-2012.pdf 62 p7, para 25, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefConstable-Chris-Sims.pdf 63 pp76-77, lines 22-17, CC Chris Sims, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-20-March-2012.pdf; p8, para 31, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Witness-Statement-of-Chief-Constable-Chris-Sims.pdf 64 pp25-26, lines 15-18, CC Peter Vaughan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-21-March-2012.pdf 65 p42, lines 4-11, CC Stephen House, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-21-March-2012.pdf; p3, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Witness-Statement-of-Chief-Constable-Stephen-House1.pdf
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the major newspapers and broadcasters at the beginning of his tenure as Chief Constable.66 However, he also explained that he then gradually stepped back this level of engagement, principally to ensure that the forces key messages were not diluted by a sense of media and public weariness.67 Chief Constable House told the Inquiry that he encouraged a similar policy to that of the South Wales Police, namely of having someone from the media department present to record any meeting with the media.68 He commented that Strathclyde Police actively recruited journalists for their media department and would not be concerned if staff left to go back into the media; indeed, he thought that this would be a sign that they were good at what they did.69 2.19 Chief Constable Simon Ash of the Suffolk Constabulary described Suffolk officers and staff as being very cautious in their dealings with the media, leaving press relations to the Corporate Communications department.70 Chief Constable Ash said that he had almost no contact with the national media, but an excellent working relationship with the local media, particularly BBC Radio Suffolk.71 Chief Constable Ash described the Spotlight media information management system used by Suffolk and Norfolk Police; this was the same system used by the MPS.72 This system kept records of all contacts (whether formal or informal) with journalists and politicians.73 In response to the concern raised by various journalists that such a system of record-keeping would cause communication by police officers to dry up, he argued that although, at that time, the Spotlight system had only been in place for four months, he had not detected any reluctance on the part of his officers to have contact with the press as a result. Indeed, he said:74 my bigger concern is ensuring police officers continue to notify the contacts. Thats where I think the weakest link in this process is, not so much the content
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On the other hand, however, Terry Hunt, Editor of the East Anglian Press, was less convinced with this argument and thought that it would be a step backwards in terms of openness with the press.75 Colin Adwent, the East Anglian Press crime reporter, agreed that this approach may well inhibit officers from talking to the press in certain cases and thought that it would not be in the public interest.76 The former Chief Constable of Cumbria Constabulary, Craig Mackey, and Gillian Shearer, Head of Marketing and Communications for Cumbria Police, explained the approach to media
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p43, lines 2-15, CC Stephen House, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-21-March-2012.pdf; p4, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Witness-Statement-of-Chief-Constable-Stephen-House1.pdf 67 pp44-45, lines 11-1, CC Stephen House, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-21-March-2012.pdf 68 p59, lines 1-12, CC Stephen House, ibid 69 p74, lines 7-23, CC Stephen House, ibid 70 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Chief-Constable-SimonAsh.pdf 71 p4, ibid 72 Although the MPS refer to this system by its former name, Solcara 73 p11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Chief-ConstableSimon-Ash.pdf 74 p21, lines 20-23, CC Simon Ash, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-26-March-2012.pdf 75 p93, lines 14-25, Terry Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-26-March-2012.pdf 76 p79, lines 5-25, Colin Adwent, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-26-March-2012.pdf
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relations in that force. Cumbria encouraged senior officers to engage with the media; they were not currently required to record every contact, although this was something that was being considered by the force.77 2.23 Assistant Chief Constable Jerry Kirkby of Surrey Police discussed in some detail the experiences that Surrey had with the media during the Milly Dowler investigation and the changes subsequently made to the press office as a result.78 In particular, Chief Constable Kirkby explained that, in dealing with the media after the disappearance of Milly Dowler, Surrey realised that they needed to develop a better relationship with the national press. From 2002, therefore, Surrey Police fostered closer relations with the CRA; this subsequently developed into both more frequent formal briefings and several informal meetings in a social environment with CRA journalists which would take place in a restaurant.79 It was said that the purpose of the informal contacts with journalists was so that:80 senior officers and press officers could meet with journalists from the Crime Reporters Association, understand their expectations and their needs and develop an understanding of working practices on that basis. 2.24 Chief Constable Kirkby said that initially he found these informal meetings useful but, in late 2010 following a Chief Officer group review, it was decided that the purpose of developing a good relationship and a better understanding of working practices had been achieved, and that the context, public perception around austerity and socialising had changed. The result was that they were discontinued.81 Chief Constable Colin Port of the Avon and Somerset Constabulary explained that when he had taken over as Chief Constable the force had been under attack by the media following a police standards review of the force; he therefore made strong efforts to have a good, open, transparent relationship.82 Chief Constable Port said that he considered Avon and Somersets policies and procedures on media relations (and gifts and hospitality) to be adequate, but did acknowledge that changes were made following the phone hacking revelations and the negative experience of Christopher Jefferies.83 Chief Constable Jon Stoddart and Barbara Brewis, Media and Marketing Manager from Durham Constabulary, said that the force had a workable and trusting relationship with their local media and that contact took place on a daily basis across all ranks, from the forces police community support officers through to the more senior ranks.84 Ms Brewis described the forces general approach to media relations as having a good professional relationship with the media but theyre not your friends. 85 Chief Constable Stoddart explained that the force had developed a high level of trust with the local media, in particular, without any
2.25
2.26
pp57-58, lines 21-11, Gillian Shearer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-26-March-2012.pdf 78 pp6-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Assistant-ChiefConstable-Jerry-Kirkby.pdf 79 pp24-25, lines 19-3, ACC Jerry Kirkby, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-27-March-2012.pdf 80 p25, lines 7-12, ACC Jerry Kirkby, ibid 81 p26, lines 8-15, ACC Jerry Kirkby, ibid 82 pp47-48, lines 23-7, CC Colin Port, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-27-March-2012.pdf 83 p55, lines 5-22, CC Colin Port, ibid 84 pp41-42, lines 21-7, CC Jon Stoddart, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-27-March-2012.pdf 85 p46, lines 15-16, Barbara Brewis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-27-March-2012.pdf
77
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culture of socialising, although he conceded that this was perhaps a function of the small size of the organisation and the location itself. 2.27 Ms Young explained that there was a practice in the Police Service of Northern Ireland of officers phoning the communications department after any contact with the media to inform them that it had taken place; a note would then be made to that effect.86 Expanding on this point, Ms Young explained that when the press office facilitated an interview with the media, the focus was on who was the most appropriate person to deal with the relevant inquiry; there was no restriction on the rank of officer or member of staff engaging with the media. These varying accounts from regional forces illustrate that while all forces placed an importance on a necessity to have a good professional relationship with the media there were varying degrees of engagement and openness. These differences are not due simply to the different media demands placed on those forces in comparison to the MPS, but also to fundamentally different attitudes. This, perhaps inevitably, leads to the question of national standards. Mr Fedorcio expressed the view that some national standards in this area were important so that theres no difference between one police force and another in how they go about in their relations with the press. 87 Oliver Cattermole, Director of Communications for ACPO, agreed that the public would expect a consistency of approach in the form of national standards but cautioned:88 The difficulty or the tension, if you likein terms of the emphasis on devolving decision-making to a local level, which is a quite prominent theme in policing at present, and thereforegetting the balance right between local interpretation and local policies and national framework is sometimes difficult. 2.30 The need for some form of local variation was expanded upon by Chief Constable Trotter:89 There will be some local variation, and perhaps for a particular reason. An example might be the Metropolitan Police will allow inspectors and above to talk to the media without reference to the press office. In my force, the British Transport Police will allow any member of staff who has legitimate reason to talk to the press to do so. Much of that is to do with our geography and the fact that we wont have an inspector on every location from Inverness to Truro perhaps in the middle of the night, so a lot will depend on local circumstance. Chief Constable Trotter agreed that a commonality of approach between forces on important issues was sensible and, in respect of areas such as firearms policy, public order and force inter-operability, essential. However, he explained that whilst national guidance could be given to chief officers, it is they who were still in command of their forces, and there may be some legitimate reason for variation.90
2.28
2.29
p47, lines 21-24, Liz Young, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-28-March-2012.pdf 87 p68, lines 18-25, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 88 p26, lines 11-22, Oliver Cattermole, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-28-March-2012.pdf 89 p40, lines 14-25, CC Andy Trotter, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-hearing-28-March-2012.pdf 90 p41, lines 7-21, CC Andy Trotter, ibid
86
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2.31
Given the very real variation in force sizes and the varying demands placed on forces by the media, Chief Constable Stoddart agreed that a sensible approach would be to introduce a national set of high level principles which were then worked out on the ground and inspected against both internally and externally through Her Majestys Inspectorate of Constabulary (HMIC). He said:91 the solutioncould come locally, because certainly, you know, 2,500 people in Durham Constabulary and 45,000 in the Metropolitan Police the scale is just ridiculous. So I dont think that one size fits all is going to work. I do think national standards should be made clear. I think that somehow or other we have to enable there to be a local solution to come to that which is agreeable to those national standards.
3. press departments
3.1 When analysing the development of police press offices, it is noteworthy that the first attempt to formalise police-media relations followed the decision of Sir Nevil Macready, then Metropolitan Police Commissioner, to establish a press room at Scotland Yard in October 1919. The catalyst for the establishment of the Press Bureau was a number of police scandals arising from leaked information that originated from detectives within the MPS who were selling information to journalists in public houses. Sir Nevil sought to counter these informal communication channels with a more formal alternative. Dr Mawby, a lecturer of criminology at the University of Leicester, explained that it was not until the late 1960s that other forces followed the example set by the MPS and themselves established press offices.92 In the period that followed, these press departments developed to the extent that Dr Mawby described the label press office as something of a misnomer. He suggested that what used to be headquarters-based press offices typically managed and partly staffed by police officers with a responsibility for reactive media liaison, had developed into departments responsible for internal communications, operational support, media liaison and public relations. They were now often called Corporate Communications departments.93 Amanda Hirst, Head of the Corporate Communications Department for the Avon and Somerset Constabulary, agreed and explained that the term press office was no longer adequate to describe the breadth of communications undertaken by the Police Service. She said that the Corporate Communications department was responsible for all aspects of internal and external communications of the Avon and Somerset force, including proactive and reactive interactions with the media, campaigns, events, web and social media and internal communications.94 For the purposes of this Report, however, and particularly as many of the witnesses continued to use the term, press office will be used as a generic term for Police Service communications teams.
3.2
The benefits
3.3
91
Chief Constable Trotter argued that in an age of 24-hour and seven days a week media coverage (that included social media), it was necessary for police forces to have a press office.
pp57-58, lines 14-6, CC Jon Stoddart, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-27-March-2012.pdf 92 p84, lines 2-21, Dr Rob Mawby, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am. pdf; p10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Dr-Rob-Mawby.pdf; 93 p85, Iines 11-17, Dr Rob Mawby, ibid; p10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/ Witness-Statement-of-Dr-Rob-Mawby.pdf 94 p2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Amanda-Hirst. pdf
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He suggested that the day-to-day interaction between police forces and the media was of such obvious importance that forces could not adequately manage this relationship without dedicated personnel who had the appropriate experience, qualifications or training. Chief Constable Trotter explained that the media had a crucial role to play in appeals for information and also the dissemination of accurate information about incidents, investigations and police operations, as well as about the Police Service itself. He pointed out that during a major incident or serious crime investigation there could be literally thousands of press enquiries to deal with, press conferences to arrange, public appeals to be broadcast, and websites and new media to be managed. All of these, he argued, were best dealt with by police media professionals rather than police officers. Chief Constable Trotter argued that the public and the media received a far better service from a force press office than by trying to track down busy front line police officers for information.95 3.4 Chief Superintendent Derek Barnett, President of the Police Superintendents Association of England and Wales, agreed with this viewpoint and suggested that the presence of a press office had become a vital component for modern policing.96 Anne Campbell, in her capacity as Chair of the Association of Police Communicators (APCOM), suggested that the professional management of the media was a vital function for the Police Service as it directly impacted on the publics perception of the Service as a whole and was indirectly related, in her view, to levels of public trust and confidence in the Service.97 Similarly, Sir Hugh Orde explained that within the context of the day-to-day activity of any police force, a press office performed an integral and specialist function. He suggested that the press office could be viewed as another specialist section within the police organisation, supporting the primary objective of keeping people safe. Just as modern police forces had access to, for example, experts in forensics, investigations, road traffic and public order, he suggested that in a similar vein Chief Constables required professional advice from a specialist media department so that they were able to make fully informed decisions in relation to that discipline.98 Chief Constable Trotter explained that a key function of a police press office was to act as a conduit between the media and its officers. He suggested that by using press officers to organise interviews between police officers and journalists, a force could ensure that there was a proper reason for the interview, that there was a record of the interview (which was potentially subject to disclosure in criminal, civil or disciplinary proceedings), that the press strategy for the operation or crime investigation was being followed, that the police officer was properly prepared for the interview, and that all proper arrangements were put into place.99 Joanne Bird, Head of Media and Marketing for the British Transport Police (BTP), expanded on this point and explained that every press office was there to help and support police officers in doing their jobs. She suggested that press officers were more efficient and effective at putting together press statements and appeals to the public than their operational counterparts and, furthermore, that this fact was recognised by front-line officers. Ms Bird argued that the immediacy of the medias need for news meant that the media could
3.5
p11, para 12.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefConstable-Andrew-Trotter1.pdf 96 p11, para 20.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-DerekBarnett.pdf 97 p13, para 29, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Second-Witness-Statement-of-AnneCampbell.pdf 98 p7, para 10.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-HughOrde.pdf 99 p11, para 12.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefConstable-Andrew-Trotter1.pdf
95
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inadvertently be an additional pressure on an operational response with the result that the press office provided an important support function.100 3.6 Although the enthusiasm for police press departments varied between witnesses, the consensus view was that they were now a necessary component of a modern police force. Amanda Hirst suggested that I think it is fair to say that the media suffer the existence of Corporate Communications Departments/press offices. 101 Adrian Faber, editor of the Express & Star, Wolverhampton, shared this view, saying Press officers can have a role to play as a central point of contact for a large force spread over a large geographical area. I suspect many journalists see them as a necessary evil. 102 Others were more unequivocal in their views on this issue. Sandra Laville, crime correspondent for the Guardian, said I would rather deal with officers directly but I can see with the vast amount of media requests police forces get, that press offices are essential. 103 Jonathan Ungoed-Thomas, chief reporter at The Sunday Times, agreed and said It is crucial for police forces to have a press office. The key role is to ensure a steady flow of information to reporters without unnecessarily hampering operational officers with inquiries and to ensure journalists working on an in-depth story speak to the most appropriate officer at the most appropriate time. 104 Jerry Lawton, chief crime correspondent of the Daily Star, argued that press offices were necessary and explained that: 105 Press officers are (usually) available whereas police officers are frequently too bogged down with all their other duties to talk. When a query emerges on a daily newspaper, speed of response is critical. Good press officers, who understand how newspapers work and journalists requirements, concerns and pressures, can actually help explain to reluctant officers on your behalf why it may be mutually beneficial to release certain pieces of information.
Disadvantages
3.7 Notwithstanding the fact that press departments are now considered to be a necessary and vital component of modern policing, the Police Service itself recognises that the media can sometimes become frustrated by this additional layer or conduit to direct contact with police officers. Chief Constable Sims (from the West Midlands), whose force policy was for individual officers to engage with the press office if approached directly by the media, acknowledged this point in his evidence.106 Similarly, Gillian Shearer (Head of Marketing and Communications in Cumbria) explained that, although generally speaking the media were comfortable going through the press office, sometimes they became frustrated if they
100
p5, para 5.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Joanne-Bird. pdf 101 p6, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Amanda-Hirst. pdf 102 p10, para 21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Adrian-Faber. pdf 103 p15, para 38, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-SandraLaville.pdf 104 p10, para 46, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-JonathanUngoed-Thomas.pdf 105 p12, para 44, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-JeremyLawton.pdf 106 p10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Chief-Constable-ChrisSims.pdf
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could not get hold of all of the information that they required; often, therefore, they tried to approach officers directly.107 3.8 This sense of frustration was expressed by a number of witnesses. Mr Faber suggested that the biggest culture change over the past few years in the relationship between the media and the police had been the introduction of press officers and argued that the referral of press enquiries to a press office had created a tier of bureaucracy between journalists and police officers.108 He expanded on this point and said:109 there is increasingly limited access to the actual police officers on the ground, and it tends to be that the press office is there to provide standard information and if we want to go further than that and find out more, we will try to go to the individual officers, but sometimes we are referred back to the press office. 3.9 Ms Laville shared this viewpoint and suggested that adding another layer between a journalist and a police officer who had information to convey could lead to delays, some inaccuracies, and often to a lack of depth in the information provided. She argued that this was partly the reason why Lord Stevens had introduced the policy within the MPS of allowing middle ranking officers and above to talk openly to journalists in the interests of accuracy, context and a wider understanding of the issues.110 There was also recognition amongst some of the regional police forces that the media would like to see increased access to force press offices. Chief Constable Baggott, speaking about the Press Office of the Police Service of Northern Ireland, for example, said We do know that the media would like the press office opening hours to be extended to 24/7 however given budget constraints this is not possible. 111 The Guardian reporter, Nick Davies, expanded on this point, describing from his point of view the difference in the service provided by a press office in a big city force and that provided by a smaller provincial force. He said:112 That was something I came across talking to provincial reporterssome of them complained that the press office of the local police force was so understaffed that the routine was that they would call the press office and get a recorded message saying, Heres the story weve selected for you today, and they would just be expected to copy that down and put it into the paper. They couldnt even pursue it. Close to that also is press officers posting stories on websites, their own websites, for journalists to put into the paper, and theres a big reporting problem with that, because youre allowing the police force to make all of the editorial decisions about what should be reported and with angle and language and quotesits not being done for malicious motives. Its about shortage of resources cuts, not enough press officers, whereas a big city force like the Met, I dont come across that. You can get a human being on the end of the phone.
107
3.10
p6, para 13.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-GillianShearer.pdf 108 p2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Adrian-Faber. pdf 109 p24, lines 6-12, Adrian Faber, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-20-March-2012.pdf 110 p14, para 33, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-SandraLaville.pdf 111 p19, para 40, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefConstable-Matthew-Baggott.pdf 112 pp27-28, lines 8-3, Nick Davies, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-28-February-2012.pdf
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3.11
Mr Davies also suggested that, with rare exceptions, press officers saw it as their legitimate role to protect the interests of the organisation or individual for whom they worked. He argued that whilst it was unusual for a press officer purposely to mislead a journalist (given that it would undermine their future credibility), when under pressure, some press officers did occasionally lie to reporters in order to protect their organisation. Mr Davies went on, however, to say that, more commonly, police press officers would hold back information that might embarrass their employer, or promote information which tended to enhance the reputation of the force concerned.113 Mr Lawton supported this viewpoint and said I think a large part of their role [a force press office] is to ensure the force is portrayed in as good a light as possible. That is only natural particularly in tough financial times and amid rumours of force mergers. 114 Mr Faber suggested that although his journalists tended to get the information that they were seeking from the press office, he was sometimes frustrated in having to deal with the police agendas of reassurance of the public and risk assessments. He argued that this manifested itself in the police view that the public had an exaggerated perception of crime which was fuelled by media coverage; as a result, the police took the view that unless it was helpful in an investigation, they would not automatically release the information.115 Commissioner Hogan-Howe argued that what might be described as reputation management was an important consideration. He made it clear, however, that I wouldnt use the words reputation management, but I do think public information is vital to make sure the public are informed about what their Police Service is trying to do on their behalf.116 In dealing with this issue, Chief Constable Vaughan suggested that all press officers, certainly within South Wales police, were aware of their responsibility to be open, honest and transparent and would always try to give as much information as they could. He argued that press officers would never withhold information from the media because, internally, it was perceived to be negative or unpalatable. Chief Constable Vaughan explained that if information could not be released or queries could not be confirmed or placed in context, then press officers would use their professional judgment to respond accordingly, seeking legal advice if necessary. He suggested that, on the occasions where the police were unable to service the needs of the media as comprehensively as they would like, this could sometimes lead to a perception that press officers were being unhelpful or obstructive.117
3.12
3.13
Respect for exclusives

3.14 A large number of the witnesses that gave evidence emphasised the importance of trust in the relationship between the police and the media so as to allow it to function effectively and in the public interest, particularly in the context of confidential briefing.118 It was argued that police respect for media exclusives was an important facet of that relationship of trust.
p3, para f, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statement-of-NickDavies.pdf 114 p11, para 43, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-JeremyLawton.pdf 115 p2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Adrian-Faber. pdf 116 pp22-23, lines 8-12, Commissioner Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-20-March-2012.pdf 117 p26, para 89, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefConstable-Peter-Vaughan.pdf 118 See for example: p4, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/WitnessStatement-of-James-Murray.pdf; and p73, lines 8-14, Paul Peachey, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-14-March-2012.pdf
113
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3.15
In relation to this issue, Barbara Brewis, Media and Marketing Manager for Durham Constabulary, said that No media outlet is given preferential treatment, although if an individual reporter becomes aware of a story or issue exclusively it would be unprofessional not to take this into consideration when planning how we distribute information.119 In this context, Ms Brewis provided the specific example of a recent major fraud investigation. She explained that the BBC and one of the forces local newspapers had become aware of the polices activities and as police enquiries were at a very early stage, we asked both reporters concerned if they would hold back from running stories in case the main suspect was alerted and went to ground. Once he had been arrested we told the reporters and provided enough information for them to run stories, ahead of any other media outlets.120 She explained: 121 If a reporter comes and asks a question about a story they are running and nobody else has it, I think its only professional to honour that exclusive. I would not put it then out on general release. I may put it out on general release once it appeared in that outlet, but I wouldnt do it in advance of that.
3.16
Jon Ungoed-Thomas, Chief Reporter for The Sunday Times, argued that police respect for exclusives were particularly important for Sunday newspapers. He suggested that he would seek one-to-one briefings for this reason he explained: whats absolutely vital for a Sunday newspaper is youre not sitting there with seven other journalists, because youll pick it up in the newspaper the next day and youll read it, so you want to be on your own and you want to have one-to-one briefings.122 I am satisfied that the interim ACPO guidance for relationships with the media adequately deals with this issue for both sides. It stipulates: 123 Media organisations should be treated in a fair and equal manner. This means that once in the public domain, information released by the police should be available to all. Where a media organisation generates an exclusive, their right to share information in confidence with the police should be respected. It may be appropriate for the police to work with a particular media organisation on an issue (such as with a local paper campaigning against a local crime issue), where it serves a policing purpose to do so [my emphasis]. All media organisations have the right to consideration for such opportunities. On some occasions it may be necessary to briefly delay the release of information to the media to ensure that resources are in place to respond to public feed back, for example an appeal for witnesses or information, where officers need to be immediately available to respond to arrest named suspects.
3.17
The Directorate of Media and Communication

3.18 The relationship between the MPS and the media is now managed by the Directorate of Media and Communication (DMC). The DMC came into being on 1 April 2012, having previously
p6, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-BarbaraBrewis.pdf 120 pp16-17, para 44, ibid 121 p73, lines 7-12, Barbara Brewis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-27-March-2012.pdf 122 p88, lines 6-10, Jon Ungoed-Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-14-March-2012.pdf 123 p6, paras 6.1-6.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Submission-from-ACPO-InterimGuidance-for-relationships-with-the-Media.pdf
119
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been known as the Directorate of Public Affairs (the DPA); the overwhelming majority of the witnesses that appeared before the Inquiry therefore referred to the body by its old name.124 3.19 The DMC is a large department with significant demands placed on its time and resources. For 2011-12, it had an allocated budget for 69 members of staff with a total expenditure of 6.7 million.125 This can be compared, for example, with the equivalent departments in the West Midlands Police (a staff of 30), Strathclyde Police (a staff of 25), and South Wales Police (a staff of about 20).126 The majority of DMC staff, some 45 out of 69, are press officers attached to the News Branch and are tasked with providing media support as the principal contact point between the MPS and the media. The remaining members of staff deal with internal communications, e-communication, marketing and publicity.127 The DMC News Branch consists of a 24-hour, seven days a week press bureau, which is often the first point of contact for the media. There are five specialist desks dedicated to supporting the four main functional commands within the MPS: Specialist Operations, Specialist Crime, Central Operations and Territorial Policing and the corporate desk.128 Ed Stearns, chief press officer at the DMC, made it clear that the directorate was far more than a call centre.129 He explained that the DMC engaged in a much wider breadth of work. Each call required a considered response and, in some cases, it was necessary to prepare press lines and to liaise with police officers or police staff.130 Responding to media inquiries was only one of the DMCs main functions. Mr Stearns explained that it was also responsible for marketing, advertising, social media, co-ordinating the corporate stakeholder engagement of the MPS and much of the internal communication for the entire organisation.131 Notwithstanding the role of the DMC, it has consistently been the policy of the MPS to devolve media contact to operational officers, and to permit officers of a suitable rank to speak to the media about their own areas of responsibility. The current Media Relations Standard Operating Procedure (SOP) for the MPS states that officers below the rank of Inspector can speak to the media with the authority of their line manager, and officers of the rank of Inspector and above are authorised to speak to the media about their own areas of responsibility (unless there is a specific media strategy in place or a dedicated spokesperson identified).132 There are, therefore, over 2,000 officers of Inspector rank and above who are authorised and encouraged to speak to the media.133 The scale of press contact is considerable. The MPS services some nine national newspapers, eight Sunday newspapers, five national television channels, plus two 24-hour media channels, a wide variety of digital channels with their associated documentary content, two national
3.20
3.21
3.22
124 125
p1, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Ed-Stearns.pdf p1, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Dick-Fedorcio. pdf 126 p2, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Chief-InspectorSally-Seeley.pdf; p86, line 16, Robert Shorthouse, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-21-March-2012.pdf; p3, lines 23,Catherine Llewellyn, http://www.levesoninquiry.org. uk/wp-content/uploads/2012/03/Transcript-of-Afternoon-Hearing-21-March-2012.pdf 127 p4, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Dick-Fedorcio. pdf 128 p5, para 15, ibid 129 p3, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Ed-Stearns.pdf 130 ibid 131 p3, para 8, ibid 132 p4, MPS Notice 26/2006 Media Relations Standing Operating Police, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/03/MPS-12-Notices-26-2006.pdf 133 p5, para 16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Dick-Fedorcio. pdf
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radio stations and ten London based radio stations, together with almost 100 local newspapers, and a wide range of minority, specialist, online and international organisations. The DMC also has the names of over 1,000 journalists and organisations on its media database, all of whom have asked the MPS proactively to provide them with information. In addition, at any one time, there is at least one documentary for national television being undertaken. This is in addition to the reactive work of responding to media press inquiries.134 3.23 As set out above, the Inquiry has heard a significant amount of evidence that the position of the MPS is very different to that of regional forces. Its major local daily newspaper is the Evening Standard;135 but this feeds into the national newspapers for the following day and it therefore has significance beyond most local papers.136 As the Commissioner observed, anything that happens in London as the capital city may not just be nationally significant but may also have international ramifications, A murder here with a foreign link can often have an impact beyond anything that we can sometimes anticipate. 137 In contrasting his experience as Chief Constable of Merseyside with that in the MPS, Commissioner HoganHowe suggested that:138 for many reasons, the dynamic with the press here is quite different, and then finally [there is] the impact of the 24-hour reporting through the mass media. The pressure of that hereits pretty voraciousSo I think that impact in London I cant say by what factor, but its hugely amplified to my experience which I saw in South Yorkshire and in Merseyside 3.24 The DMC handles some 120,000 media calls a year with over half of them going to the press bureau at Scotland Yard. In an average week, the DMC gets between 200 and 300 calls a day. By way of illustration, at the peak of the public disorder on 9 August 2011, the number of daily calls rose to over 1,700 and remained at approximately 1,200 on the 10th and 11th August 2011. Mr Fedorcio argued that it was essential, both for the police and the media, that the DMC handled these calls, the alternative being that they would go directly to police officers who would then be prevented from attending to policing duties.139 In 2011, the DMC News Branch issued 1,008 news releases, arranged 447 media facilities including interviews, press conferences, briefings, visits and attendance on police raids, made reference to 396 successful court cases, supported 100 murder investigations and attended 316 Gold Groups (a Gold Group is a senior strategic decision-making body made up of experienced and senior or specialist staff) meetings.140 Media management information within the MPS is held in a database called Solcara (now known as Spotlight).141 Mr Fedorcio explained how Solcara worked in practice. A record was kept in relation to individual cases and incidents. That record would initially contain a description of: (i) the information that the DMC had been given, (ii) who had provided that information, and (iii) the time that the information had been given. A discussion then took place between the relevant personnel within the MPS, and decisions were made as to the
3.25
p5, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Ed-Stearns.pdf see for example p74, lines 15-20, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-6-March-2012.txt 136 pp73-74, lines 20-1, Commissioner Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-20-March-2012.pdf 137 p74, lines 9-11, Commissioner Hogan-Howe, ibid 138 pp74-75, lines 17-3, Commissioner Hogan-Howe, ibid 139 pp5-6, para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf 140 p6, lines 14-20, Bob Quick, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-7-March-2012.pdf 141 p6, para 16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Ed-Stearns.pdf
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approach to be taken in relation to the release, or alternatively non-release, of information to the media. A record was then made of: (i) what information the MPS was able to offer to the media (for offer), (ii) what information the MPS may provide if it was asked to do so (if asked), (iii) information that third parties had released, which was known by the MPS and which may be released by the MPS, making it clear when it was released that its source was a third party, and not the MPS (non attributable), (iv) information in possession of the MPS, such as information on reporting restrictions, or the date and time of a briefing by an MPS officer, which may be released to the media but was not for publication by them (not for publication), and (v) information that was not for distribution to the media (this may include confidential or sensitive details of a victim or of a person arrested and was referred to as Bureau information).142 The Spotlight system is now being adopted by a number of other forces too.143 3.26 Despite the important function performed by the DMC, there has been some criticism of its behaviour and practices. Elizabeth Filkin, in her report The Ethical Issues Arising From The Relationship Between Police And Media, recorded the excellent work that was done by the DMC (then the DPA), but nevertheless highlighted her serious concerns about what she had been told about the reluctance of some police officers to provide information to the DPA because of two perceptions. First, there was the perception that in some instances the DPA had been unwilling to provide information to the public. Second, that, again sometimes only, information was misused. Mrs Filkin suggested that the impact of those perceptions, regardless of the facts, was damaging because they fuelled surreptitious briefing and hampered an effective and transparent corporate response in providing information to the public.144 Kit Malthouse, formerly the Deputy Mayor for Policing and Crime in London, suggested that the DMC was dominated by its relationship with the news media and said:145 its a common trap that communications departments fall into, which is that they migrate, because of the nature of the news media, its immediate demands, the reactive nature of it, they migrate to thinking that news and using the news media is the only way to communicate with the public, whereas of course there are many other forms of communication, and I raised this with the Commissioner and with the head of the DPA, that I felt it would be beneficial for the Met to move away from merely a concentration on news towards other forms of communication 3.27 Michael Sullivan, crime editor of The Sun, said that he believed that the MPS compiled charts on individual reporters and a system of grading or marking to illustrate whether they were deemed to be favourable to the MPS or not.146 The MPS strongly denied this claim and Mr Stearns asserted that the DMC did not keep charts on individual reporters. He explained that the DMC, as part of its public relations function, did carry out media monitoring, but
p6, para 19, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Dick-Fedorcio. pdf; p9, Special Notice 24/98 MPS Master Bundle Policies/Procedures, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/MPS-8-Special-Notice-24-98.pdf 143 For example, p9, para 30, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-ofAnne-Campbell.pdf 144 Filkin, E, The Ethical Issues Arising From The Relationship Between Police And Media Advice to the Commissioner of Police of the Metropolis and his Management Board (January 2012), p46, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/03/MPS-5-Elizabeth-Filkin-Report-January-2012.pdf; see Part G, Chapter 3 145 pp13-14, lines 10-1, Kit Malthouse, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-29-March-2012.pdf 146 pp55-57, 69-70, lines 9-14, lines 23-23, Michael Sullivan, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-15-March-2012.pdf; p13, para 65, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/03/Witness-Statement-of-Michael-Sullivan.pdf
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suggested that this operated at a very general level with no focus on particular reporters.147 It is sufficient for me to conclude that I have seen no evidence of a grading system and neither has any evidence been produced that has analysed the extent to which those who have provided favourable coverage to the MPS have been rewarded with consequential favourable access or other benefits as a result. 3.28 Sean ONeill, crime correspondent for The Times, said that he found the DMC less than frank and that they quite often give a partial picture.148 Mr ONeill provided a specific example where he suggested that the MPS had been obstructive over the release of footage in a major court case (however, he did concede that this example was based on his understanding from colleagues rather than it being a first hand experience).149 From the other perspective, the MPS, through Mr Stearns, argued that in that particular case the DMC had in fact taken positive steps to secure the release of the footage to the press.150 In summarising his position, Mr ONeill said that although the relationship between the media and the MPS waxed and waned, he found the MPS to be defensive and protective of its image and reputation.151 A number of journalists suggested that the MPS, and the Police Service more generally, had withdrawn from the media since the Inquiry had been convened and because of the general publicity surrounding phone hacking. Mr ONeill, for example, said of the MPS that, there is a different relationship between the police and the press, and I suppose thats an inevitable consequence of what happened last summer.152 In relation to the Police Service more generally, Mr Gordon, editor of the South Wales Echo, suggested, for example, that the police seemed to be more hesitant about making contact with the press than previously.153 Indeed, Chief Constable Trotter confirmed from his conversations with journalists that there was a sense that some police forces had closed down slightly in their dealings with the media.154 However, Mr Stearns argued that the suggestion that the MPS had withdrawn from disclosing information to the media was not the result of any policy of the DMC. Rather, he suggested, it was more likely that journalists had formed this impression because individual police officers, who had become personal contacts of journalists, no longer wanted to engage with the media to the same extent because of the current climate of resignations and arrests.155 This viewpoint was supported by some journalists who agreed that it was informal contact with police officers that had become more difficult.156 It is also clear that recent events have had an effect on the way in which some journalists interact with police officers. This point was illustrated by Commissioner Hogan-Howe who
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G
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p14, para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Ed-Stearns. pdf 148 p24, lines 9-10, Sean ONeill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-21-March-2012.pdf 149 p24, lines 11-19, Sean ONeill, ibid 150 p26, para 66, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Ed-Stearns. pdf 151 p4, lines 14-19, Sean ONeill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-21-March-2012.pdf 152 p22, lines 15-23, Sean ONeill, ibid; for example, pp81-82, lines 20-1, Justin Penrose, http://www.levesoninquiry. org.uk/wp-content/uploads/2012/03/Transcript-of-Morning-Hearing-20-March-2012.pdf 153 pp4-5, lines 7-21, Timothy Gordon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-20-March-2012.pdf 154 p42, lines 4-11, CC Andy Trotter, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-hearing-28-March-2012.pdf 155 pp45-46, lines 11-3, Ed Stearns, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am. pdf; p8, para 21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Ed-Stearns. pdf 156 For example, p107, lines 16-20, Thomas Pettifor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-20-March-2012.pdf
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described his attendance at a social event. It transpired that he was seated at the same table as an editor that he had not previously met. The editor made a conscious effort not to look at him for 20 minutes and after about an hour had elapsed said I wasnt going to speak because I wasnt sure that we could. 157 3.31 It is perhaps unsurprising if recent events, including the establishment of this Inquiry, have affected the personal behaviour of individual police officers in relation to the media. Commissioner Hogan-Howe was prepared to accept the potential criticism that the pendulum in the relationship between the police and the media may possibly have swung a little too far in the other direction, but said I prefer, I think, to be criticised for setting the boundary too high than I would byhaving set it again too low.158 Notwithstanding this point, the MPS argued that the DMC were fully conversant of the tensions between operational policing and the media appetite for information and were keen that police officers continued to engage with the media.159 Overall, in quantifying the extent to which there is a need for a recalibration of the relationship between the media and the MPS it is important to note that the balance of the evidence has demonstrated that the general relationship between the press and the MPS is good and healthy. Assistant Commissioner Cressida Dicks view was that almost all of the culture within the MPS in relation to its dealings with the press was very healthy and professional.160
3.32
Head of communications
3.33 The West Midlands Police have a long standing policy that the head of their communications team was a serving police officer rather than a communications specialist.161 This role is currently performed by Chief Inspector Sally Seeley.162 Her responsibility, as Head of Corporate Communications, is to lead that team and to have strategic oversight of the department as a whole.163 The appointment to this post is for a limited period approximately two years.164 In Chief Inspector Seeleys view, the advantages of this system, as a police officer with 20 years service, were that she possessed a degree of objectivity beyond that shown by professional communicators and, additionally, she was able to add real context and an understanding of policing to the work undertaken by the communications department. She believed that this provided support to the team. She also considered that the relatively short period of the appointment meant that the relationships formed remained professional and objective.165
157
p47, lines 10-22, Commissioner Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-20-March-2012.pdf 158 p9, lines 2-18, Commissioner Hogan-Howe, ibid 159 p8, para 22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Ed-Stearns.pdf 160 p23, para 59, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-AC-CressidaDick.pdf 161 The Inquiry understands the position in West Midlands Police has changed, however, this does not change the analysis. 162 p53, lines 4-9, Chief Insp Sally Seeley, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-20-March-2012.pdf 163 p8, para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefInspector-Sally-Seeley.pdf 164 p54, lines 6-9, Chief Insp Sally Seeley, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-20-March-2012.pdf 165 p54, lines 6-15, Chief Insp Sally Seeley, ibid
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There were mixed views as to whether this policy was a good idea but, insofar as it is possible to discern a consensus, it was broadly against the arrangement. Chief Constable House of Strathclyde Police was firmly against it, and said:166 Im aware that theres been some discussion about would it be a good idea to have a senior police officer running the media set-up of a police force. In my view, that would be a retrograde step. I think most police forces have been there. Its not somewhere I would choose to go, personally, because there is a professionalism within media and communications which is not the natural strong suit of police officers That being said, Chief Constable House did accept that there might be some value in having a senior police officer focused on communications within a force area for a time limited period. However, he believed that the alternative model, as in Strathclyde, was preferable. This saw an expert head of communications sit on the management board, where they were subject to the scrutiny and questioning of the Chief Constable, his Deputy, his Assistant Chief Constables, the Director of Finance and Resources, and to the cut and thrust of the management of the organisation on a daily basis.167 Rob Shorthouse, Head of Corporate Communications for Strathclyde Police, agreed, arguing that the role of head of communications was a post better held by somebody that has the necessary skills, experience and qualifications.168
3.35
In relation to the presence of the head of the DMC on the MPS management board, Lord Blair suggested that it was appropriate not least because the role also encompassed internal communications. He understandably suggested that the Commissioner and the management board would want to communicate directly with their officers and staff. His view was that the Evening Standard and other papers were a very important aspect of communicating to the 53,000 people who worked in the Met. 169 Lord Blair suggested that this method of communicating with the organisations staff was an important way of contextualising and triangulating information outside of the MPSs own internal publications.170 I can see value in both approaches to this issue. There is certainly some force in the notion that a police officer brings objectivity, an increased understanding of operational policing and context to the role. It might also be argued that a time limited appointment, such as is in place for Chief Inspector Seeley, necessarily ensures that relationships do not become too close with particular editors or media outlets; this is certainly a risk if the Director of the Communications Operation is in post for many years. On the other hand, a suitably qualified senior officer, with the necessary skills, would have to be found and taken off operational policing duties. I also accept that, provided suitable and robust oversight and line management arrangements are in place, there is real value in a professional lead providing police forces with the expertise necessary for both internal and external communication services. In the circumstances, I consider that this decision is ultimately one for Chief Constables to make based on their own experience of their force, the local media and the issues in the area that they police. If, as I accept is the case, Chief Inspector Seeley and the West Midlands Police, for example, find their system works for their area, it would not be appropriate or right for me to recommend (let alone suggest the imposition of) a different approach. Similarly,
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p76, lines 15-22, CC Stephen House, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-21-March-2012.pdf 167 p82, lines 11-22, CC Stephen House, ibid 168 p87, lines 10-12, Rob Shorthouse, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-21-March-2012.pdf 169 pp51-52, lines 13-7, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-7-March-2012.pdf 170 p53, lines 1-13, Lord Blair, ibid
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given the different experience of the MPS (and in Strathclyde), provided measures are in place to prevent the development of a relationship of overfamiliarity or friendship which I do not believe is in the public interest and which may come from exceptionally lengthy periods in post, nor would it be sensible or appropriate for me to recommend that the arrangements adopted by such forces should be changed.
Crime Reporters Association

3.38 One of the themes to emerge from the evidence was the relationship between the Crime Reporters Association (CRA) and the MPS, along with the probity and potentially extensive contact that this is said to have provided between crime reporters who are members of this club and police officers. The CRA is a long established forum for national newspaper and broadcast journalists working in the field of crime, law enforcement and home affairs. It has existed in its current form since shortly after the Second World War.171 Jeff Edwards, the Chairman of the CRA from 1993 to 2009 and currently its President, said that its raison detre was to promote better understanding, cooperation and good working practice between those journalists within its membership and the police and other branches of law enforcement.172 The CRAs current Chairman is John Twomey.173 Mr Edwards and Mr Twomey both provided an overview of the CRA in their evidence to the Inquiry. Mr Edwards explained that the CRA currently had 45 members,174 and that the criteria for inclusion within the Association were that members must be employed by a news organisation that operated nationally or was staffed to national news organisation standards.175 The CRA had members from the main broadcast news media outlets (BBC, ITN, Sky), all national daily and Sunday newspaper titles (with the exception of The Sunday Times, although its reporters had been invited to join),176 and, additionally, the Press Association. The Evening Standard crime correspondents were also members because, although the Evening Standard only circulated in London and the Home Counties, it was staffed to national news organisation standards.177 Mr Edwards explained that the CRA was funded by its members with an annual membership of 30 although members were also asked to make a contribution towards the annual Christmas party (40 in 2011).178 The police provided no input into membership which was entirely controlled by the CRA itself.179 Although theoretically the CRA covers all of the UK police territory, in reality it is primarily focussed on London and the South East180 and, therefore, crime reporters on regional newspapers outside this area do not benefit from membership. As to whether this is an issue, it is, in any event, true to say that many local newspapers do not have a specialist crime
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p6, lines 9-21, Jeff Edwards, https://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-14-March-2012.pdf 172 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jeff-Edwards.pdf 173 p2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Twomey. pdf 174 p4, lines 21-25, Jeff Edwards, https://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-14-March-2012.pdf 175 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jeff-Edwards.pdf 176 pp4-5, lines 21-10, Jeff Edwards, https://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-14-March-2012.pdf 177 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jeff-Edwards.pdf 178 p3, ibid 179 p30, lines 13-19, Michael Sullivan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-15-March-2012.pdf 180 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jeff-Edwards.pdf
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reporter at all. Indeed, Colin Adwent, senior crime reporter for the East Anglian Daily Times and Evening Star, Ipswich, said that he had never felt limited or inhibited by not being a member of the CRA or an equivalent body.181 3.42 Looking at the specific relationship between the Metropolitan Police and the CRA, Mr Stearns explained that historically the MPS had hosted a formal monthly briefing with the CRA. The briefing was normally led by the Commissioner and was an opportunity to address any topical issues, allow the Commissioner to answer questions and to provide an opportunity for officers with a specialist knowledge on a variety of issues to brief those present on a range of operational or policy work. CRA briefings still occurred but were now rotated with different members of the management board of the Metropolitan Police, including the Commissioner, leading them.182 Furthermore, Mr Stearns explained that in around 2005, Mr Fedorcio and Peter Clarke, formerly Deputy Assistant Commissioner for Specialist Operations, had agreed that there was a need for the media to be better informed about terrorist related issues and the threat to the United Kingdom. It was therefore decided that a regular but informal lunch meeting would be held with rotating members of the CRA to allow for a general discussion between police officers and reporters who were experts in their field.183 The CRA lunch briefings were organised through the DPA press office and a press officer always attended; it was understood that the subject for discussion was always non-reportable.184 Mr Twomey explained that since the resignations of Sir Paul Stephenson and John Yates in the summer of 2011, the CRA lunch briefings with senior officers had ceased.185 The CRA and the DMC also both hold a number of what are described as informal networking opportunities each year, attended by both senior officers and the media. Mr Stearns said that the purpose of the functions (normally an evening over the Christmas period, and sometimes also an evening in the summer) was to develop working relationships, understanding and confidence.186 In relation to other forces, Mr Edwards explained that in recent years Surrey, Thames Valley, Kent, Hampshire, Sussex, the City of London and one or two other forces had held what he described as modest, get to know you social evenings for CRA members, either at the force headquarters or a hired venue.187 There were also occasional briefings or press conferences about specific events, some of which were described as off-the-record.188 CRA members also met with and contacted police officers and staff individually.189 Mr Edwards described the CRA as operating in a similar way to that of the lobby system amongst Parliamentary correspondents and suggested that it afforded members of the CRA some additional access to some police forces, including the MPS, especially at times of crisis
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pp67-68, lines 20-2, Colin Adwent, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-26-March-2012.pdf 182 p23, para 58, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Ed-Stearns. pdf 183 pp23-24, para 59, ibid 184 p6, para 22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Twomey. pdf 185 p31, lines 10-13, John Twomey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-19-March-20121.pdf; p6, para 21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Witness-Statement-of-John-Twomey.pdf 186 p24, para 60, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Ed-Stearns. pdf 187 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jeff-Edwards.pdf 188 p4, ibid 189 pp8-9, lines 19-20, Jeff Edwards, https://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-14-March-2012.pdf; p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/WitnessStatement-of-Jeff-Edwards.pdf
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or major events.190 Mr Edwards conceded that the status of the CRA may, to a certain extent, provide members with privileged access to the police.191 However, he emphasised that all major news organisations were represented by the CRA.192 Mr Edwards also explained the value of the CRA, suggesting that it provided a more detailed and nuanced level of engagement with police forces for specialist reporters who covered crime and policing issues,193 as well as offering what he described as a talking shop in which misunderstandings between the police and the media, along with difficult issues, could be debated, explained and resolved.194 3.45 This view was echoed by Paul Peachey, crime correspondent for The Independent. He described the CRA as useful as a conduit between the police [and press]there are briefings that are organised perhaps to make it less unwieldy, just purely for the crime reporters.195 He also explained that whilst the membership criteria for the CRA used to be fairly strict the criteria were now less strict, so that some freelance journalists were members making it a fairly broad church.196 Michael Sullivan, a committee member of the CRA, agreed and noted that membership had been expanded to include home affairs correspondents as well as crime reporters, partly as a result of suggestions from the police that it should be more representative of the national and London regional news outlets.197 Mr Sullivan also explained how CRA members were trusted with more information than less specialist journalists:198 The purpose of the CRA is really a group of journalists who specialise in crime reporting. Through the group, as it were, we would hope to be trusted with information perhaps brought in on not sensitive information, but could be told things in confidence which might put context to a story, might not necessarily be for publication, but would influence whatwere writing in the newspaper, or indeed broadcasting through radio or television. 3.46 Justin Penrose, crime correspondent at the Sunday Mirror, reiterated the relationship of trust between the CRA and the police and described the relationship between the CRA and the MPS. He suggested that the relationship had built up over the years to the point where police officers trusted the integrity of the CRAs members. As a result, he explained that officers were able to give members some context in relation to stories and, while informing them of the facts, felt able to tell them if a story they were planning to run could affect future police operations or prevent arrests from taking place. Therefore he suggested that the relationship had worked to a mutual benefit.199 Mr Stearns described CRA members as having a greater understanding of policing issues than, perhaps, might be the case for a general reporter; this could also include a greater awareness of issues such as the impact of a story on operations and how such problems could be avoided. This meant that the police could proceed with
p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jeff-Edwards.pdf p4, lines 9-21, Jeff Edwards, https://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-14-March-2012.pdf 192 pp4-5, lines 21-2, Jeff Edwards, ibid 193 pp6-7, lines 22-6, Jeff Edwards, ibid 194 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jeff-Edwards.pdf 195 p60, lines 8-11, Paul Peachey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-14-March-2012.pdf 196 p60, lines 15-18, Paul Peachey, ibid 197 pp30-31, lines 22-13, Michael Sullivan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-15-March-2012.pdf; p12, para 53, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Witness-Statement-of-Dick-Fedorcio.pdf 198 pp29-30, lines 19-4, Michael Sullivan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-15-March-2012.pdf 199 p3, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Justin-Penrose. pdf
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a briefing on that basis and meant that an explanation about the basics of tactics or case history was not needed at the start of each briefing.200 3.47 This theme was expanded on by Stephen Wright, associate news editor of the Daily Mail, who suggested that the CRA could operate in the public interest. He said that the confidential briefings by the MPS to CRA members in July 2005, at a time of unprecedented national security concerns, were an excellent example of teamwork between the press and the police. And the CRA was at the heart of that. 201 Mr Stearns also suggested that from a public scrutiny perspective, the CRA was valuable because members specialist knowledge normally allowed them to ask the right questions so as to ensure that the MPS was held to account where that was required.202 Jacqueline Hames gave her views on the power wielded by the CRA. She said:203 its sort of a cultural thing, almost, within the police service, and certainly within a high level of investigators, you know, who are at the top of the major criminal investigation sections you know, specialist crime directorate and anti-terrorist function and things like that who have spent many years developing their skills and contacts as police officers and establish relationships with journalists over many, many years, sometimes even close friendships, and if a new person coming into that its not an easy place for them to get established because it becomes, by human nature, a gentlemans drinking club and thats what it was for many years. I dont know if thats the case now, because Im detached from it, but certainly for many, many years, it was known asa very close-knit group of people who would have access to information that some police officers dont have. 3.49 Ms Hames suggested that a recommendation should be made to institute a review of the role of the CRA to ensure transparency in terms of its access to information.204 Mr Edwards acknowledged that there was a need for more transparency from both sides (i.e. the police and CRA),205 but he was anxious to avoid a draconian approach;206 in the main, he considered that the relationship between the CRA and the police had been successful and beneficial to all parties, albeit that it required constant maintenance and adjustment.207 Despite the acknowledged need for some additional transparency and proportionate adjustments to the relationship, Ms Hames was the only witness to express real misgivings about the CRA. Other journalists did not see any real problems with it; that applied both to those who were currently members208 and to those who were not.209 Mr Stearns did not think
3.48
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p22, para 56, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Ed-Stearns. pdf 201 p84, lines 2-18, Stephen Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-15-March-2012.pdf 202 pp22-23, para 56, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-EdStearns.pdf 203 pp90-91, lines 14-5, Jacqueline Hames, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcriptof-Morning-Hearing-28-February-2012.pdf 204 p19, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Jacqueline-Hames.pdf 205 p15, lines 9-19, Jeff Edwards, https://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-14-March-2012.pdf 206 p13, lines 1-5, Jeff Edwards, ibid 207 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jeff-Edwards.pdf 208 pp73-74, lines 9-6, Stephen Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-15-March-2012.pdf 209 p80, lines 7-17, Jonathan Ungoed-Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-14-March-2012.pdf
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that the CRA was a clique but rather he considered them more to be experts in their field.210 Lucy Panton, formerly the crime editor of the NoTW, described how there was a competitive rivalry amongst CRA members,211 which may seem to suggest that the CRA was not an overly cosy club. Jonathan Ungoed-Thomas proffered the view that he missed nothing important by not being a member of the CRA and therefore being absent from the CRA briefings. He said:212 Ive never covered a major crime story, for instance in London, were talking here about the Metropolitan Police, where its been raised as an issue that we have missed a significant part of the story because we didnt attend a briefing and whether we should now consider becoming a member of that association. Its never been raised with me as an issue, and Ive never, in terms of Sunday newspapers and the coverage that we cover, ever seen anything where weve significantly missed something which I later found out as a result of those briefings. 3.51 Lord Condon reinforced this point of view and said of the CRA:213 I wouldnt have briefed them if I felt it was a desperately exclusive sort of small trade body that gave special access. To me, it seemed that every major crime reporter around in London was part of that, as were those involved with the electronic media, and I guess it was a handy way, once every month or certainly, latterly, it was every few months them having the opportunity to discuss things which were of interest to them 3.52 The CRA forms an important part of the picture of relations between the press as a whole and the MPS. The police themselves view the CRA as a useful group whose membership is not exclusive in any problematic sense. I can see the benefit to both sides of having specialist crime reporters and a forum for them to get together to share expertise and provide appropriate liaison with the police. However, it is clear to me that there is a need for both the MPS and the CRA to take positive steps to ensure that the relationship is a transparent one, and that its membership remains as wide and as open as is consistent with its function. I see no reason why a journalist who has the necessary specialist knowledge should be excluded either because of the title at which he or she works or the location of that title: it would be a matter for the journalist whether he or she wishes to attend briefings in London (which is obviously where they would be held). I do not consider that it is necessary for me to be dogmatic about how these aims can be achieved: rather, it is best left to be worked out by the MPS (doubtless with the advice of the newly formed DMC) and the CRA. I have no doubt that transparency of purpose, membership and meetings along with appropriate publication of membership and minutes will serve to ensure that any suggestion that the CRA is a restricted club can be dispelled. It would also be important that anyone who wishes to join the CRA knows how to go about it and fully appreciates the extent of knowledge or involvement in crime reporting required.
3.53
210 211
p57, lines 7-11, Ed Stearns, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am.pdf p23, lines 1-5, Lucy Panton, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am.pdf 212 p81, lines 14-24, Jonathan Ungoed-Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-14-March-2012.pdf 213 p22, lines 7-23, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf
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CHAPTER 3: THE PRESS AND THE POLICE: THE HARM AND THE RESPONSE
1. Introduction
1.1 This Chapter of the Report will examine the generic evidence called during the course of Module 2: in other words, the broad sweep of the evidence bearing on the relationship between the press and the police, and the conduct of each. The essential question is this: did that relationship become too close? But in order to answer that question it is necessary to examine a range of specific issues in which different facets of that essential question fall to be addressed and answered. At the heart of this matter are serious issues of police integrity and public perception which will need to be examined in this Chapter of the Report at length and with care.
2. The use and abuse of information

Forewarning of the press
2.1 In opening this Module of the Inquiry, Robert Jay QC identified the issue of the press attending incidents or newsworthy occasions because, it had been suggested, they have been tipped off by the police (or, at least, certain police officers) and the media (or, at least, certain journalists). This section considers and investigates this issue. Hugh Grant gave evidence to the Inquiry on this topic. It is representative of the testimony the Inquiry received in that it does not amount to unequivocal evidence. It is compelling nonetheless:1 This came at the zenith of the sort of press storm around that arrest in Los Angeles. I was now back in London, holed up in my flat, and Id managed to get out for the day, or the night I cant remember. Anyway, when I came back, this flat had been broken into. The front door had been basically just shoved off its hinges. As I say, nothing was stolen, which was weird, and the police nevertheless came around the next day to talk about it, and the day after that a detailed account of what the interior of my flat looked like appeared in one of the British tabloid papers. I cant remember which one at the moment, but it was definitely there, and I remember thinking: who told them that? Was that the burglar or was that the police? And when I told this story to Tom Watson recently, the MP who was writing a book about this kind of thing, he nodded knowingly, saying, Oh yes, that particular method of break-in Ive come across with several other people who are victims of a lot of in the crosshairs of a lot of the press attention, and it doesnt seem to have been a singular occasion. and:2
1
2.2
pp5-6, lines 6-1, Hugh Grant, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-21-November-2011.pdf 2 p40, lines 3-10, ibid
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Chapter 3 | The Press and the Police: The Harm and the Response
All I know is that for a number of years, although it did get better in recent years, if someone like me called the police for a burglary, a mugging, something in the street, something that happened to me or my girlfriend, the chances are that a photographer or reporter would turn up on your doorstep before a policeman. So whether you call that supposition or fact, I dont know. 2.3 Elizabeth Filkin, the former Parliamentary Commissioner for Standards, within her report The Ethical Issues Arising From The Relationship Between Police And Media, made mention of tip offs. The report records that:3 It is also said that the media is sometimes tipped off by police officers and staff who, as part of their job, have come into contact with celebrities or others in the public eye. Some parts of the media pay members of the public for such information and may have paid police in similar circumstances. Whereas this may be legitimate for members of the public, it is understood, across the MPS, that it is not legitimate for the police. Mrs Filkin expanded on this point in her evidence to the Inquiry and said:4 from what I was told, it went across that whole range. Some of it was about people allegedly ringing up in excitement to the newspaper to say that, Celebrity X has just come into my police station, and when that poor celebrity got outside, there were lots of cameras there because the media had delivered the cameras. But people also said to me that they thought that in some instances people were paid for information about celebrities 2.4 It is true to say that Mrs Filkins report provides no specific example of celebrity tip offs, nor does it conclude that there was firm evidence to suggest that the practice takes place. That being said, however, Brian Paddick, formerly a Deputy Assistant Commissioner in the Metropolitan Police Service (MPS), suggested that the arrest of suspects for the 21 July 2005 failed bombings could not have been filmed and broadcast live without inappropriate collusion between the press and the police.5 Mr Paddick went on to note, however, the real danger was that if the media were tipped off before a raid took place, then somebody may tip off the suspects leading to their escape;6 it might be said, therefore, that in those circumstances it was extremely unlikely that police officers engaged in such a raid would tip off the media. Furthermore, former Assistant Commissioner Peter Clarke, in his evidence to the Inquiry, provided an alternative explanation as to how the media became aware of the arrest of the suspects in Mr Paddicks example. Mr Clarke explained that the operation on 29 July 2005 went on for several hours and involved the evacuation of a block of flats, police cordons and firearms officers. He suggested that given the amount of local disruption that was caused as people were evacuated from their homes, it was highly likely that the media would have been alerted.7 Indeed, Mr Clarke noted that during this period in 2005, every time the police mounted a high profile operation with armed officers present the media turned up very quickly.8
2.5
p15, para 3.1.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf pp109-110, lines 19-2, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf 5 p34, lines 9-14, Brian Paddick, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/lev270212pm.pdf 6 p35, lines 10-12, Brian Paddick, ibid 7 pp16-17, lines 23-18, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-1-March-2012.pdf 8 p17, lines 5-10, Peter Clarke, ibid
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2.6
Although he could not provide a specific example of a tip off that he had received from a police officer or someone working for the police regarding a celebrity, James Murray, Associate News Editor at The Sunday Express, stated that he was unsurprised that when the police went to arrest a celebrity the photographers were already there;9 he said:10 I have been lucky enough to be on the receiving end of a phone call when somebodys said theyve got a good story about so-and-so, and you say, Thanks very much, and you make further enquiries to establish the accuracy and the veracity of the story, and then it may be that a short time later you ring up your contact, your source, and say, Would you like to have a little drink or would you like to have a cup of coffee or would you like to have a meal by way of thank you for being helpful in that matter? it can be a police source. It can be a member of the public whos got information about a crime. I mean, the sources can come from a multitude of different ways.
2.7
When talking about leaks to the media more generally, Chief Constable House from the Strathclyde Police also suggested that tipping off may occur. Again, he could provide no concrete examples, but said:11 its an estimation, because I havent done that analysis I would say most of them do [leaks to the media concerning celebrity cases] because thats effectively where the money would be, so yes, its the newspapers, the reporters and the photographers being on the doorstep of the police office as a celebrity is released and of course that shouldnt happen. So we backtrack as to how did that happen and the view is that is a leak from the organisation and we investigate it.
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Assistant Chief Constable Kirkby of Surrey Police confirmed that one of its officers was under investigation in relation to a leak about celebrity information.12 Lord Stevens, when discussing the issue of tip offs, expressed condemnation for the practice but had no recollection of it actually happening during his Commissionership.13 Conversely, there was a significant amount of evidence to suggest that there is no such practice or, to put it slightly lower, that the practice is certainly not prevalent within the police service; and media sources are more likely to be members of the public or information obtained in other ways. Evidence on this point was provided by Sandra Laville, a journalist of some 23 years experience.14 She said that she had never been tipped off by the police in relation to the arrest of someone of interest, nor was she personally aware of the practice happening.15 When asked
2.10
p71, lines 17-23, James Murray, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-19-March-20121.pdf 10 p70, lines 3-14, James Murray, ibid 11 p66, lines 6-14, Chief Constable Stephen House, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-21-March-2012.pdf 12 p4, lines 16-24, Assistant Chief Constable Jerry Kirkby, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-27-March-2012.pdf 13 pp110-111, lines 4-10, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 14 pp1-2, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-SandraLaville.pdf 15 pp49-50, lines 16-12, Sandra Laville, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-14-March-2012.pdf
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about photographers being present as people of interest were taken away from their homes or photographs being taken as they emerged from police stations, Ms Laville said:16 Im not aware where that information is coming from, and Im not aware of my colleagues or other people on other papers being told by police officers. I am not aware of that. 2.11 Michael Sullivan, a crime reporter of some 21 years standing,17 provided the Inquiry with similar evidence. He could only recall one instance where he had received information in relation to the arrest of a celebrity which allowed him and other journalists and photographers to be present when the police arrived; however, that had been a tip from a fellow journalist and not the police.18 He suggested that there was a misconception in relation to the practice of tip offs and said:19 I think what youre seeing on television and in the newspapers where there are photographs of celebrities or well-known people who have been arrested then coming out of a police station, what will happen is if the newspapers become aware through whichever means that somebody is under arrest, a group of photographers, reporters from all papers and camera crews may well try and go to the police station where that person is being held. They wont necessarily be told where theyre being held by the police. In fact, in my experience its quite rare that they would. But you would split it up in a practical working, practical way, split up the work of one paper or one photographer goes to this police station, another goes to that police station. I mean Ive known occasions in our own office where weve had teams of three, perhaps four photographers going out to different police stations trying to find out which one theyre being held at there are various means for information about the arrest of people to come out, and very often it might be released by that person or the arrested persons own PR. 2.12 Although formally informed of proposed raids and arrest operations on several occasions through the MPS press office, Mr Twomey could not recall an instance where he had been advised informally about arrests or raids by the police before they had taken place.20 In relation to the attendance of journalists and photographers at the arrest of a celebrity he said I have never experienced that,21 but did acknowledge that he was aware of that sort of thing occurring.22 A number of other journalists gave similar evidence. Paul Peachey, crime correspondent of The Independent, said that on the occasions that he had been given prior warning of a raid they had been through official channels and not a secret tip off.23 Jon Ungoed-Thomas, chief reporter at The Sunday Times, said that on the one occasion that he had received prior notification of a raid or arrest it had been provided to him through the press office with
2.13
16 17
p50, lines 13-20, Sandra Laville, ibid p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Michael-Sullivan. pdf 18 pp46-47, lines 13-1, Michael Sullivan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-15-March-2012.pdf 19 pp47-48, lines 3-4, Michael Sullivan, ibid 20 p11, para 43, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Twomey. pdf 21 p40, lines 10-15, John Twomey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-19-March-20121.pdf 22 p40, lines 21-23, John Twomey, ibid 23 p70, lines 1-12, Paul Peachey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-14-March-2012.pdf
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the approval of senior police officers;24 Mark Hughes, crime correspondent of The Daily Telegraph, also made the same point.25 Jerry Lawton, chief crime correspondent for The Daily Star, said that where he had been given off-the-record prior warning about pending arrests it was usually to stop the publication of a story which could hamper the investigation.26 He also reiterated that he had never been tipped off about a celebrity arrest.27 Scott Hesketh, crime reporter for The Daily Star Sunday, also said that he had only received off-the-record information either relating to a proposed arrest that was confidential and not for publication or about plans to drop charges on a controversial case.28 2.14 Sean ONeill, crime editor of The Times, made a similar point and said that on the small number of occasions that he had been given prior notification of an arrest, it had been because he had been persistently asking questions of the police about an investigation or that he was proposing to write stories which the police had been concerned might inhibit an ongoing investigation. The police had therefore shared information with him, under strict embargo, to preserve the security of the operation.29 In reinforcing the points made by Mr Sullivan, Justin Penrose from the Sunday Mirror offered the following view:30 In my experience, a lot of celebrity stories tend to be from members of the public or people that are associated with those celebrities rather than from the police. I think theres a real perception that the police are a leaky sieve, and in my experience thats not necessarily been the case. 2.16 Tom Pettifor, crime correspondent for The Daily Mirror, confirmed that he had never been offered a story about the involvement of a famous person with the police, either in the role of a victim or as the subject of an investigation, by a police officer or a member of police staff.31 Stephen Wright, associate news editor at the Daily Mail, also suggested that it would be wrong to assume that information on crime stories necessarily came from the police. He observed:32 I use a wide variety of independent sources. Crime reporting is like piecing together a jigsaw. In my work I have had professional dealings with the Home Office, prison and probation personnel, victims of crime, campaign groups, police staff associations, politicians, lawyers and freelance journalists. Furthermore, many of my most important stories came after I followed a particular case for a number of years and stayed in touch with the various people involved.
24
2.15
p7, para 33, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-JonathanUngoed-Thomas.pdf 25 p14, para 31, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Mark-HughesThe-Telegraph-taken-as-read.pdf 26 p8, para 28, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jeremy-Lawton. pdf 27 p59, lines 5-6, Jeremy Lawton, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-19-March-2012.pdf 28 p8, para 29, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Scott-Heskethtaken-as-read.pdf 29 pp7-8, para 40, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sean-ONeill. pdf 30 pp95-96, lines 21-1, Justin Penrose, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-20-March-2012.pdf 31 p117, lines 6-16, Thomas Pettifor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-20-March-2012.pdf 32 p5, para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-StephenWright.pdf
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2.17
Ed Stearns, chief press officer at the MPS, also supported this viewpoint and in similar terms. He said that formal notification of a proposed raid or arrest, as described by Mr Twomey for example, should not be confused with the media just turning up on operations or at arrests without press office involvement. He suggested that this could take place for a variety of reasons: neighbours had called the media; there was traffic disruption leading to media inquiries; or because photographers were already at or aware of the location of a celebritys home and were regularly keeping a watchful eye out for activity.33 Mr Stearns reported that the MPS had also, on occasions, been aware of tip offs being given by lawyers or publicists of the individual involved, including an example where the identity of a celebrity who was the victim of an assault was revealed to the media by personal contacts and not the police.34 In summarising the evidence that the Inquiry has received on this issue, much has been of a general nature from which legitimate inferences may be drawn, but there is no direct evidence to suggest that the police have given unauthorised tip offs to the media in respect of celebrity arrests or other raids. However, as Mr Stearns conceded, although he had no direct evidence that media presence at a raid or arrest had occurred as a result of a tip off within the police, through a process of elimination it was sometimes difficult to identify an alternative source for the information.35 That being said, there is an obvious danger in making assumptions as to the provenance of sources where the media attend police raids or the arrest of a celebrity; and the press, in particular, were not slow to suggest that there could be any number of alternative avenues whereby the information had been disseminated amongst the press. I deal with the issue of leaks of information more generally later in this section, but it is sufficient at this stage to make the point that the more robust the systems and processes in place to mitigate the risks of leaks within an organisation the better. It is, however, sensible to go one stage further. It should be a matter of serious professional concern to the police that information about their activities which should be kept confidential is, indeed, confidential. The presence of the press at a high profile arrest may, indeed, provide positive coverage although, unless very carefully handled, it may also give rise to difficult issues of fairness within the criminal justice process. Obviously, if, for good reason, a decision has been taken to brief the press about a forthcoming arrest and to allow representative attendance, the risks (and the responsibilities to the target of an arrest) should have been calibrated and taken into account. If there is no such authority, however, and there is a legitimate inference that someone (whether police officer or civilian employee of the police) has leaked the information to the press generally or a journalist specifically, I do not take the view that this is just one of those things. The professionalism required of police officers must be sufficiently robust to instil the mindset that such leaks about forthcoming arrests or the involvement of the famous in the criminal justice system are not in the public interest and that the provision of appropriate briefing as to police activity should only be handled through open and transparent procedures which have taken account of all relevant circumstances: they should not be by the back door. This is not the same as whistle blowing when I recognise that very different considerations apply.
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2.19
2.20
Involvement of the press in operations

2.21
33
Colloquially known as Ride Alongs or Tag Alongs, this is the phenomenon whereby the media are given a specific invitation to accompany the police during a raid or other operation.
pp9-10, para 25, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Ed-Stearns.pdf pp9-10, para 25, ibid 35 pp50-51, lines 24-5, Ed Stearns, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am.pdf
34
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Those members of the media invited to accompany the police are given special access to, and advance notice of, operations which ordinarily would not be publicly known about beforehand. 2.22 The rationale behind the involvement of the press in operations is to help improve public understanding of the work of the police through seeing them at work and the challenges they face, thereby dispelling any misconceived perceptions. This process (which it is said has been successful) is referred to by the Directorate of Media and Communication (DMC) as Taking Media on Operations.36 Taking the media on operations is governed by a formal MPS policy37 and, more generally, by the ACPO Communication Advisory Group 2010 Guidance.38 The MPS policy states that taking the media on operations should be considered where it would:39 (a) (b) be of significant public interest; help to prevent disorder or crime (for example, by acting as a deterrent to criminals or that informing the public of police action could lead to greater public confidence and co-operation); and improve the media/public understanding of police practices and procedures.
2.23
(c)
The policy is clear that the media must not be taken on any operations involving juveniles, and advises that officers should consider whether it is likely that a media presence could interfere with an individuals right to their private and family life, their home and correspondence, or with an individuals right to a fair trial. Both of the aforementioned rights are obviously protected by the European Convention on Human Rights (ECHR). In addition, the policy stipulates that where the media are invited to attend police operations, their involvement must be strictly controlled.40
2.24
The ACPO guidance is broadly similar and advises that there is no law to prevent police forces taking the media on operations, although this is subject to the salutary reminder to forces that there are laws which may affect media reporting, for instance (and, in particular) those designed to ensure a fair trial. The guidance suggests that forces should consider whether:41 (a) (b) (c) the project addresses matters which are in the public interest; it is likely to inform or reassure the public; it will help prevent or detect crime.
The guidance also identifies risks for consideration, including the possible interference with an individuals right to a fair trial or privacy, the distress or harassment which may be caused to those being investigated or to innocent members of the public, and the potential to jeopardise future police operations.42
36 37
p9, para 24, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Ed-Stearns.pdf MPS Special Notice 6/01, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-10-SpecialNotice-6-01.pdf 38 pp8-9, paras 4.27-4.34, Sir Hugh Orde, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ExhibitSHO1.pdf 39 MPS Special Notice 6/01, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-10-SpecialNotice-6-01.pdf 40 MPS Special Notice 6/01, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-10-SpecialNotice-6-01.pdf 41 p8, para 4.28, Sir Hugh Orde, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-SHO1.pdf 42 p8, para 4.29, Sir Hugh Orde, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-SHO1.pdf
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2.25
A number of witnesses gave evidence to the Inquiry on this issue. Lord Condon suggested that there were arguments for and against the practice. On balance, he felt that it was in the public interest if done correctly, with very clear parameters.43 He cited Operation Bumblebee as an example, in which the media were invited along to observe and report on arrests for the purpose of publication, of reassuring the public, and to act as a warning to potential burglars and to be seen to be doing so in such numbers as transferred fear from the public to burglars.44 Lord Stevens had encouraged officers to take the media on police operations, where appropriate, as he believed that it would benefit the police, the media and, most importantly in his view, the public. He recognised that there were risks involved but felt that these should not prevent the police from becoming more open and flexible with the media.45 Mr ONeill told the Inquiry that occasionally police forces formally invited the media to go on early morning raids during which suspects were arrested; he provided the example in London where this was often done with the Commissioner or Mayor as part of an anti-burglary initiative.46 Mr Sullivan provided similar evidence; he said that once every year or two he was invited on mass raids with other journalists to promote specific campaigns on issues such as burglary, domestic violence and uninsured or stolen cars. He suggested that because of the increasing political interest in policing, invitations also now came from the Mayors Office.47 Lucy Panton, formerly the crime editor at the NoTW, spoke in favour of the practice. She believed that it was in the public interest to allow journalists to shadow the police during specific operations, as it gave the public an insight into what was normally a closed off and secretive world and showed the good work and sometimes complex nature of what the police had to deal with on a day-to-day basis.48 Ms Panton could recall seven occasions when she had accompanied the police on raids and operations, two of which occurred before she worked at the NoTW and two of which appeared to have been as the direct result of NoTW investigations. In relation to her time at the People and the NoTW, she argued that:49 As a Sunday paper, it is incredibly hard to find different and exclusive lines on breaking stories such as arrests which generally happen on weekdays. An opportunity to witness first hand an event like this was beneficial to our readers and in the public interest.
2.26
2.27
2.28
In respect of the MPS, Dick Fedorcio suggested that there was almost a rota50 in place for inviting the media on operations in London and that a journalist would normally be invited, from the Press Association for example, to act as a pool who would then pool everything back in for everyone else to have.51
43
p20, lines 4-8, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 44 pp17-18, lines 8-21, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 45 p15, para 43, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Stevens. pdf 46 p8, para 41, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sean-ONeill.pdf 47 p11, para 57, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-MichaelSullivan.pdf 48 p17, para 25, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Lucy-Panton. pdf 49 p16, para 24iv, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Lucy-Panton. pdf 50 p63, lines 20-21, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-13-March-2012.pdf 51 pp63-64, lines 25-4, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-13-March-2012.pdf
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2.29
There were mixed views as to the utility or acceptability of arrangements whereby journalists were invited to accompany the police on operations. Mr Penrose explained that he had, on a small number of occasions, shadowed the police on operations and recalled two specific examples: first, where he had accompanied the police in an armed response vehicle, and secondly relating to a stop-and search operation targeted at knife crime.52 He provided his view on whether the practice was a good thing:53 I think its a good thing because I think whats being lost so far over this period of months is the good things that the Metropolitan Police and other police forces do. I mean, the idea of going out with the armed response vehicle was to sort of give some kind of idea as to what armed officers do on a daily basis and to give the public a general overview of what they do
2.30
Ms Laville said that she had in the past shadowed the police on operations but had not done so for a long time because she felt that she did not get much out of the process.54 She explained:55 its all about the official lines of the Metropolitan Police showing themselves, whatever they want to show, whether its being tough post the riots or being tough on drug gangs or being tough, currently, on street gangs. Im not sure youd get much out of it beyond a picture of someone being arrested, a door being broken down It is of interest, but its only of interest if I flesh it out with other information. You know, theres currently at the moment going on an anti-gang operation in the Metropolitan Police. We dont seem to be able to get access to that at the moment. All we seem to get at the moment is being bombarded with facts and figures and information, which is pretty meaningless without context and colour and texture and more of an insight, and I dont think you really get that from just going along, riding along like that.
2.31
Chief Constable Vaughan of the South Wales police, saw value in the media joining the police on operations but felt that it must be proportionate.56 Mr Vaughan recalled the experience of his force engaging with some programmes which, in retrospect, he regretted. He provided the specific example of a programme called Traffic Cops, and said:57 I think its a hugely popular show, but it keeps being reshown on different satellite channels, and perhaps some of the behaviour that you see on that isnt the behaviour that you would want reflected into the wider community its a number of years since the last time that the show came to South Wales Police. Some of those instances arent the organisation that I want to reflect as being representative of South Wales Police.
2.32
52
Mr Vaughan conceded that, perversely, the programme had provided the force with an opportunity to observe the unsatisfactory way in which some of his staff had behaved: it had
p4, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Justin-Penrose. pdf 53 pp83-84, lines 23-10, Justin Penrose, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-20-March-2012.pdf 54 p47, lines 3-7, Sandra Laville, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-14-March-2012.pdf 55 pp47-48, lines 8-3, Sandra Laville, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-14-March-2012.pdf 56 p52, lines 19-24, Chief Constable Peter Vaughan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-21-March-2012.pdf 57 p53, lines 1-10, Chief Constable Peter Vaughan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-21-March-2012.pdf
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then allowed them to tackle that issue.58 Given his experiences, Mr Vaughan suggested that inviting journalists to accompany the police on operations was a double-edged sword and had shaped the way in which the force engaged with the media.59 He said:60 Very important to us is what can we get out of it? What are the media trying to get out of it? I think its very important that were held to account for our activities and its important that the public see that policing isnt just about knocking down peoples doors, discovering cannabis plants and dealing with violent people. Theres a whole host of roles that my officers and staff deal with, so for us now, if we do have any requests, it tends to be to look at the other functions, the other individuals that help the police force help us ... to do the job on the front line. 2.33 Whilst there may be a clear public interest in informing the general population that the police are taking appropriately robust action in relation to specific crime types, it is at the same time self evidently vital that the identity of the subject of the investigation is protected certainly at the point of arrest. This point was acknowledged by Commissioner Hogan-Howe, who was of the view that taking the media on police operations had a place in explaining to the public, through the press, what was happening in their local communities, provided that there was no identification of the suspect and that there was no risk to the judicial process.61 He expanded on this point and said:62 usually great care is taken to make sure that, first of all, the press who are at the event are chaperoned. They have no right of entry into the properties so they should not go into the properties. Number two is that the individuals who are the suspects and are the subject of arrest when you get there, or were being sought when you arrived, are not identified, and there should be nothing, the written nor the visual accounts, that allow that to happen. It is really to get the story that the police are taking action in an area about a particular type of crime, be it drugs or whatever, not that this individual was a subject of the investigation. 2.34 Mark Thomson, a partner at the media law firm Atkins Thomson, provided an example of the serious breaches of the Article 8 rights of the individual who was arrested that could arise as a consequence of the media accompanying the police on a raid. He told the Inquiry about one of his clients who was arrested after the police arrived at his family home unannounced. The police had allowed a film crew to accompany them on the raid and parts of the arrest were filmed. It subsequently transpired that the police had made a mistake and Mr Thomsons client was completely innocent of any crime, and he was therefore released on the same day with no charges being brought. Unfortunately the BBC broadcast the arrest footage on national television implying that Mr Thomsons client was guilty. A photograph of the client was also published in a widely circulated TV programme listing magazine. Mr Thomsons client took legal action against the BBC claiming damages and an injunction for libel and invasion of privacy. The BBC later agreed to apologise to Mr Thomsons client and make a statement in open court, paying 50,000 in damages and costs.63
58
p53, lines 13-18, Chief Constable Peter Vaughan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-21-March-2012.pdf 59 pp53-54, lines 24-6, ibid 60 p54, lines 7-18, ibid 61 p31, lines 2-18, Commissioner Bernard Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-20-March-2012.pdf 62 p32, lines 3-15, ibid 63 pp2-3, paras 9-12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-MarkThomson-to-be-read.pdf
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2.35
In an attempt to mitigate the risk of such an occurrence taking place, the ACPO and MPS guidance on taking the media on police operations includes as an annex a sample contract.64 This contract has been developed in response to lengthy discussions with broadcasters.65 It serves the purpose of reminding officers of their duty to respect the rights of individuals under the ECHR. In particular, officers are:66 reminded that no material, photographs or film must be published or broadcast that would interfere with an individuals rights, particularly the right to a fair trial. The contract also details the specific responsibilities of; the media representative(s); the individual force; and, in relation to the entering of private premises, the responsibility of the adult householder or lawful keyholder.
2.36
In relation to the appropriateness of media participation in police operations and the potential impact on the rights of a private individual, Andy Trotter, Chief Constable of British Transport Police and Chair of the ACPO Communications Advisory Group (CAG), told the Inquiry that:67 a balance [should] be struck between the rights of individuals and the genuine public interest in showing that we are dealing rigorously with certain crime types also to encourage the public to come forward if they have further information and to discourage people who may be involved in crime. Importantly in my view, however, he believed that individuals who have been arrested should not be identified by any police force, nor the media, although he recognised that others may hold a different perspective. Commissioner Hogan-Howe equally also emphasised this point and said that this practice was just intolerable for two reasons: one, its improper, legally well, Im not sure its illegal but its improper. But more importantly, it often is wrong.68 Mr Trotter said that this situation often led to what he described as [the media] play a guessing game with us to try and work out whos been arrested.69
2.37
In a broader sense, the primary issue of concern is precisely this; that facilitated media involvement in any police operation may lead to the identification of potential suspects. Both Commissioner Hogan-Howe and Mr Trotter stressed during their evidence the potential dangers of this taking place. They both referred to the case of Christopher Jefferies, which already points out the frailties of that particular position in relation to the standard description of suspected individuals that are released in formal police statements.70 Mr Trotter also recognised the problems that have existed in a number of regional forces across the UK where suspects have been identified and have risked facing both physical campaigns in the street or on Facebook and things such as that.71 Commissioner Hogan-Howe used as an illustrative example the case of Rhys Jones, a murder inquiry which attracted a huge amount of press interest, particularly at a local level. The
2.38
64
pp32-33, Metropolitan Police Service, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-7ACPO-Communication-Advisory-Group-Guidance-20101.pdf 65 p8, Metropolitan Police Service, ibid 66 p32, Metropolitan Police Service, ibid 67 p51, lines 15-21, Chief Constable Andrew Trotter, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-hearing-28-March-2012.pdf 68 p26, lines 10-13, Commissioner Bernard Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-20-March-2012.pdf 69 p46, lines 24-25, Chief Constable Andrew Trotter, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-hearing-28-March-2012.pdf 70 p47, lines 20-21, ibid 71 p47, lines 24-25, ibid
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suspected offender had been named on the wall in the area in which Reece Jones [sic] was murdered. The information therefore became public knowledge. Despite the fact that everybody in the area thought they knew they did it [the person named], and we thought we did too 72, Commissioner Hogan-Howe stressed that:73 theres no way we confirmed that to the press, nor should we ever have done that. We worked our way methodically, over a year, to prove the case against him and the people who had helped him after the event. He offered the general view that there should be no background briefing on suspects. There should be no comment about suspects 74 He made the point that on occasions a force may announce the arrest of a suspect in very general terms but considered that there was no benefit, nor any reason to say, for example, And this man, this woman, are people who we are interested in and we are now pursuing a case against them 75 His one exception to this rule was in cases where a suspect might be considered a risk to the general public and were actively evading police authorities. However, Commissioner Hogan-Howe recognised that this was still a very hard test, because there is a risk therefore to the court process later.76 He explained that:77 If youve named someone and shared a photograph, it can limit some of the evidential lines that may be available later. So its always a case that that type of revelation is always made after a careful discussion, particularly with CPS and our own lawyers, to make sure that we can substantiate the dangerous and, number two, is there is [sic] reason to alert the public at large so we can locate them before they hurt someone else? That would be the only time I could see [it happening]. 2.39 I would endorse the general views of Commissioner Hogan-Howe and Mr Trotter on this issue. Police forces must weigh very carefully the public interest considerations of taking the media on police operations against the Article 8 and Article 6 rights of the individuals who are the subject of such an operation. Forces must also have directly in mind any potential consequential impact on the victims in such cases. More generally, I think that the current guidance in this area needs to be strengthened. For example, I think that it should be made abundantly clear that save in exceptional and clearly identified circumstances (for example, where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not be released to the press nor the public.
Off-the-record briefing
2.40 When opening this module, Mr Jay identified the giving and receiving of off-the-record briefings as one of the potential manifestations of an overly close relationship between the police and the press.78 The principal risks are two-fold, namely the obvious lack of transparency of such interaction, and the potential expectation of future favours from both sides.79
72
p26, lines 14-25, Commissioner Bernard Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-20-March-2012.pdf 73 p26, lines 21-25, ibid 74 p27, lines 12-15, ibid 75 p27, lines 17-22, ibid 76 p28, lines 9-10, ibid 77 p28, lines 10-19, ibid 78 p14, lines 13-22, Robert Jay QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/lev270212am.pdf 79 pp14-15, lines 18-1, ibid
791
Definition 2.41 One of the potential issues with off-the-record briefings or conversations is the lack of clarity around the meaning of this term. It has been apparent from the evidence that the term is often misunderstood and has been used interchangeably with other terms such as non-attributable when police officers or police staff and journalists establish the basis for a conversation. HMIC, within their report Without fear or favour a review of police relationships, found that there is inconsistency across the Police Service in the use of off-the-record briefings.80 Sir Denis OConnor, former Chief Inspector of the Constabulary, elaborated on this point and said: my understanding is that across the country, some people have a form in which they will do non-reportable briefings, some are much less formalised, some will do it more frequently than others. Some are less concerned about exclusiveness in these things in terms of how many people they speak to 81 Her Majestys Inspector of the Constabulary, Roger Baker, in describing this problem said: clarity of definition, I think, is important for the future of what off the record means and what it doesnt mean.82 In his evidence, Dick Fedorcio, former Director of Public Affairs for the MPS, reinforced HMICs findings in this area. He made the point that he had always encouraged the provision of as much information on the record as possible in the interests of openness and transparency but also because of the dangers that can arise through differing interpretations among police officers, press officers and journalists as to the use and meaning of off the record.83 He expanded on the confusion surrounding the use of this terminology, and said:84 I think its a serious problem. Its never, in my view, been solved in my time in dealing with it with the Metropolitan Police and the journalists that we work with. It became a bit of a standing joke at meetings with the Crime Reporters Association that every time someone said, Can we go off the record? there would then have to be a debate as to what we meant, so that we would reach a common understanding on that day on that issue at that time as to what we meant. Did we mean that we were going to tell you something that you could not use at all, or were we going to tell you something that you could use but not attribute to us? 2.43 It is clearly that this issue that is not limited to the larger metropolitan force areas. Craig Mackey, former Chief Constable of the Cumbria Constabulary and now Deputy Commissioner of the MPS, for example, in respect of Cumbria Constabularys interaction with the press, stated that there are no off the record discussions except for background information ahead of complex court cases.85 However, Anne Pickles, the Associate Editor for Cumbrian Newspapers, said that on occasions off-the-record briefings and communications do occur.86 Gillian Shearer, head of marketing and communications for Cumbria Constabulary, explained
2.42
80
p29, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-withoutfear-or-favour.pdf 81 p15, lines 6-14, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-12-March-2012.pdf 82 p45, lines 12-14, HMI Roger Baker, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf 83 p10, para 40, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Dick-Fedorcio. pdf 84 p78, lines 11-22, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 85 pp18-19, para 51, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DeputyCommissioner-Craig-Mackey2.pdf 86 pp22-23, lines 8-12, Anne Pickles, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-26-March-2012.pdf
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that this apparent contradiction was due to a blur around the terminology.87 Mr Mackey agreed, and said: 88 I think it comes to this heart of what is off the record. Its different with different parts of the media, and different media outlets will give you a different interpretation of what that means. I prefer and always work with attributable and non-attributable. Everything we said to the media is absolutely attributable to an individual who said it 2.44 Similarly, from the perspective of a journalist, Nick Davies (a freelance who has worked under a part-time contract for Guardian News and Media Limited since 1989) said theres confusion about it. American journalists and a few British use that expression to describe material which is being provided on the condition that it isnt used at all, but I use it in the way that most British reporters use it, which is to say that the information is off the record if its been given to me for use but not to be attributed to the source 89 Paul Peachey, crime correspondent for The Independent, agreed: 90 Its a term that needs clarifying. I work for an American organisation and they have very different views about what off the record means. Off the record can mean that that detail cannot be used for writing, so shall we say off the record means its just for your knowledge and you dont use it for an article or its often confused with background, which can be used in an article. So most situations it has to be defined, so often, you know, it can mean purely for my own background use, it could mean for something to be printed unattributably I have a definition in my mind, but I think its a term that is often confused by other people, particularly not in the profession. 2.45 A number of possible definitions or categories of off-the-record contact emerged during the course of this part of the Inquiry. The first was that provided by Mr Davies: the information is provided for use but not to be attributed to the source. Sandra Laville, crime correspondent for The Guardian, in this context suggested that sometimes the police might give off the record guidance on something in order to make sure that a mistake is not made in the reporting of a subject, or to correct inaccuracies.91 Mark Hughes, crime correspondent for the Daily Telegraph, provided similar evidence, citing in particular the considerable amount of misinformation that was corrected by the police through off-the-record briefings in the Sian OCallaghan murder investigation.92 A second category of off-the-record briefings were described by Mrs Filkin, who provided the example of a formal briefing where it has been agreed by both sides that it will be offthe-record and that the journalists wont print anything at the moment because it might
2.46
87
p40, lines 15-19, Gillian Shearer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-26-March-2012.pdf 88 p39, lines 12-18, Deputy Commissioner Craig Mackey, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Afternoon-Hearing-26-March-2012.pdf 89 p25, lines 3-11, Nick Davies, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-28-February-2012.pdf 90 pp71-72, lines 23-14, Paul Peachey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-14-March-2012.pdf 91 pp12-13, para 27, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-SandraLaville.pdf 92 p15, para 32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Mark-HughesThe-Telegraph-taken-as-read.pdf
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do harm or jeopardise some investigation.93 The understanding in this scenario is that the police intelligence can be published at some point in the future. Jeff Edwards, President of the Crime Reporters Association, provided the example of a terrorist incident or a major crime inquiry where accidental reporting might seriously damage a criminal investigation.94 2.47 The third category of off-the-record briefing relates to material that cannot ever be published, but is provided to give the press important background information to an event or story. Again, this situation might often arise in the context of a counter-terrorism investigation. Ms Laville provided the example of the regular off the record briefings from the Met Police at the height of the terrorist threat in London 2005.95 In respect of the briefings she said that most of these were unreportable, but they did provide background on what the police were facing.96 Given the variation in terminology and the associated definitions used, the current Interim ACPO Guidance for Relationships with the Media seeks to define the generally used police and media speaking terms as follows: 97 On the record means that a journalist can report, quote and name their source. Where possible, all conversations should be on this basis and it should always be assumed that a conversation is on the record unless expressly agreed otherwise in advance. Background/guidance means that information provided can be reported without it being attributed to a source, whether named or not. This is sometimes used to provide further context around an on the record statement. Off the record means that use of information provided is restricted altogether. Occasionally there may be a legitimate reason for an off the record conversation or briefing to take place, such as where news reporting may have an impact on a current investigation or as a means of preventing inaccuracies or misunderstanding. 2.49 It is very difficult to draw any firm conclusions as to how widespread or common each of these forms of contact is in practice; it is also the case that on occasions there is some overlap between them. The evidence of the journalists, for example varied considerably. Jon Ungoed-Thomas, chief reporter at The Sunday Times, said that I have been offered off-the-record briefings probably fewer than 10 times in the last five years, all of which have involved a face-to-face meeting.98 Michael Sullivan, crime editor of The Sun, on the other hand, suggested that he had attended a substantial number of off record briefings over the years, though they are much less frequent nowadays.99 Similarly, Thomas Pettifor, crime correspondent at the Daily Mirror, in describing the frequency of his off-the-record conversations with the MPS said:100
2.48
p1, lines 18-23, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf 94 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jeff-Edwards.pdf 95 pp12-13, para 27, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-SandraLaville.pdf 96 pp12-13, para 27, ibid 97 p5, para 3.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Submission-from-ACPO-InterimGuidance-for-relationships-with-the-Media.pdf 98 p8, para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-JonathanUngoed-Thomas.pdf 99 p12, para 60, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-MichaelSullivan.pdf 100 p115, lines 10-17, Thomas Pettifor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-20-March-2012.pdf
93
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off the record is a slightly vague term that I dont really like using, but it would be a non-attributable conversation, just to give me context on the story. So it could be a couple of three times a week, maybe, that I would have non-attributable conversations with officers. 2.50 Given the apparently nebulous nature of the term off-the-record, it is not unsurprising that there have been problems arising through its application. Mrs Filkin summarised the issue in her evidence to the Inquiry:101 In relation to on or off the record, my key recommendation to people would be: talk to the journalist and find out what this actually means before you start. To exercise some judgment about it. Many journalists are absolutely proper about it, tell you exactly what they will do or wont do with an off-the-record briefing, and if you explain to them that you can give them information but they cant use it at the moment, will respect that. Theres no issue. Some wont. Some are untrustworthy, and like any other walk of life, one has to weigh up people very carefully in terms of what theyre saying Advantages 2.51 Despite the confusion that exists in relation to the terminology (with the associated uncertainty in relation to the potential downstream use of the information being provided), many of the witnesses argued that the provision of off-the-record briefings served a number of valuable and important purposes. Two senior and experienced journalists described the provision of information through off-the-record briefing as vital. Stephen Wright, Associate News Editor at the Daily Mail, suggested that there must be scope for off-the-record contact with the police.102 He said that it was a vital way in which people within the force can voice their concerns and expose corruption, malpractice and abuses of power.103 John Twomey, crime reporter for the Daily Express and Chairman of the CRA, said that: 104 off the record conversations are a vital way the media gets information. A good deal of what is disclosed during non-attributable briefings could and, perhaps, should be given on-the-record. But there are often compelling reasons why briefings are given off-the-record. 2.53 Mr Davies argued that speaking off-the-record can promote openness and transparency. He explained: 105 I think the immediate fear that police officers have when they sit down with a journalist is that theyre going to get misquoted, and if you can say, This is unattributable, i.e. you are not going to get quoted at all, then that fear is removed. That I would say is the primary reason why it happens. It really isnt sinister. Its mainstream, normal, unsurprising, over and over again.
pp29-30, lines 15-1, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf 102 p6, para 20, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-StephenWright.pdf 103 p6, para 20, ibid 104 p13, para 56, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-JohnTwomey.pdf 105 p26, lines 13-24, Nick Davies, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-28-February-2012.pdf
101
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Mr Davies went on to say that it would be a mistake to say off the record is the source of the problem. Off the record isnt sinister. Off the record helps people to tell the truth.106 He also warned against any over reaction to recent events which understandably have called into question the very notion of off-the-record contact. As to this, he said:107 whats wrong is to try and close down all off-the-record briefings or all unauthorised access. Its like saying, Because I got food poisoning last night, Ive never going to eat again. Its too destructive 2.54 A number of other journalists supported this viewpoint. Jerry Lawton, Chief Crime Correspondent of the Daily Star, said that all good [police] forces offer off-the-record briefings. In my opinion they are an essential tool for accurate crime reporting.108 By way of illustration he provided the example of the off-the-record briefing delivered by the police during the Raoul Moat investigation:109 In the Raoul Moat case police took the worlds media into their trust after recovering a taped threat from the still-at-large gunman that he would execute a member of the public for every perceived untruth about his family he read/heard in the media. At an off-the-record briefing officers in the case explained the situation and asked newspapers/TV and radio to avoid publishing/broadcasting information about Moats family or any details about the threat itself. On my part a double page spread we were planning to run the next day was pulled without protest or question the moment I told the news desk. Everyone adhered to the news blackout. Moat was caught without further bloodshed. 2.55 A number of journalists also commented on the general utility of off-the-record briefings. Mr Ungoed-Thomas explained:110 The value of such [off-the-record] briefings is that it allows officers to speak freely and provide useful intelligence, without being nervous that anything they say might be published. The information helps provide useful background and credibility to an article, and helps the reporter understand the intelligence on which police officers may base their assertions. 2.56 Sean ONeill, crime editor of The Times, suggested that he had received formal off-the-record briefings because the officer giving them has been in a sensitive role (for example counterterrorism, organised crime) and reluctant to be named/quoted/identified for personal security reasons.111 Mr Sullivan also provided an illustration of the type of material that might be provided through an off-the-record briefing:112 if there is a murder and police are looking for a specific suspect known to the victim, then it is useful to know that while reporting on the crime to avoid causing unnecessary fear to readers by giving them a misleading impression the murder was
p42, lines 9-12, ibid pp43-44, lines 22-1, ibid 108 p8, para 29, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-JeremyLawton.pdf 109 p7, para 23, ibid 110 p8, para 35, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-JonathanUngoed-Thomas.pdf 111 p8, para 42, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sean-ONeill. pdf 112 p7, para 37, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-MichaelSullivan.pdf
107 106
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a random act which has put them at risk. Information like that might be given off the record and be accompanied with requests not to publish any names or pictures of anyone of interest to the police whom we have obtained information about from neighbours, friends or relatives. 2.57 Mr Peachey similarly recognised the benefits of off-the-record briefing for the purposes of providing context and to help to prevent inaccurate reporting.113 He also suggested that offthe-record communication was:114 part of the relationship of trust that you have to build. I mean, thats part of the job that I do, is to try to build trust between myself and officers in the organisations. To enable a free flow of information in the knowledge that some things will be told to you not for use, but so that they could effectively allow you to write your story. Mr Peachey did, however, also acknowledge that there were risks associated with the practice. He said:115 if somethings been given off the record, then its not attributed to anybody particular, so they are perhaps handing over that information without the responsibility that it entails, so, you know, so such information would always have to be checked perhaps more thoroughly than information that would be given by a named source and in the name of a particular organisation. 2.58 Dr Rob Mawby, from the Department of Criminology at the University of Leicester, suggested that from a policing perspective, off-the-record briefings had been identified as being important as long ago as the 1930s, when Lord Trenchard (Met. Commissioner from 1931 to 1935) took to explaining to Fleet Street editors the reasons for his reforms before making them public.116 He made the point that subsequently, off-the-record conversations and briefings have become part of the currency of police-media relations.117 Peter Clarke, formerly an Assistant Commissioner in the MPS, provided an illustrative example of the potential benefits to the police, and more importantly to the public, of off-the-record briefing. He told the Inquiry that:118 in the period before the attacks on London in July 2005, and before any of the major terrorist trials reached the courts, I felt that there was an overwhelming public interest in the media being made aware of the true nature of the terrorist threat to the UK. During off the record briefings, I informed reporters what was in the pipeline in terms of trials, without prejudicing either current intelligence or the trial process The objective was to offer responsible reporters an alternative view to the criticism that was coming from some quarters that the police were unfairly targeting the Muslim communities, using oppressive methods and arresting large numbers of innocent people who were then being released without charge The objective was not to enhance the reputation of the police, but to try to maintain the confidence of the Muslim communities through what was a deeply unsettling time for them.
p73, lines 15-19, Paul Peachey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-14-March-2012.pdf 114 p73, lines 8-1, Paul Peachey, ibid 115 p72, lines 17-24, Paul Peachey, ibid 116 p7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Dr-Rob-Mawby.pdf 117 p8, ibid 118 p12, paras 23-24, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-PeterClarke.pdf
113
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2.60
Similarly, Catherine Llewellyn, the assistant director of corporate communications for South Wales Police, considered off-the-record communications to be a valuable tool.119 She explained that off-the-record briefings and communications happened quite regularly120, and that the information provided was not for publication and was intended to: 121 either provide important background information, i.e. to contextualise an issue, or information thats given to correct an inaccuracy, but importantly it is information that is not intended for print.
2.61
Peter Vaughan, Chief Constable of South Wales Police, provided such an example:122 [T]here was [a] counter terrorism operation within the Cardiff area and a number of individuals were arrested and it quickly got into the media that a local shopping outlet was the target of their ambition and we had phone calls from the media to say, Weve heard that this was the target, this particular area was the target, is that right? And we were able to say to the media outlets, because of the relationships that wed developed with them of trust, that it wasnt that outlet, not tell them where it was, that the target of the activity was, but fairly and squarely saying that the communities of South Wales have nothing to worry about, go into that particular area, so it became a very useful method then of managing what could quickly have escalated out of control
2.62
The potential value of off-the-record briefings was not recognised just by the Police Service. Lord Macdonald QC, former Director of Public Prosecutions, explained that as part of a wider programme of public engagement (with the aim of increasing public confidence in the Crown Prosecution Service (CPS) and the Criminal Justice System more generally), he had:123 instituted a system of embargoed briefings for the media ahead of significant criminal trials, which would often include off-the-record material. These were very well attended by representatives of the press and broadcasters and there was no occasion on which the terms of the briefings were breached. These briefings were designed to assist the media by placing in context the allegations and by explaining the background to the proceedings. Risks in principle
2.63
Despite the potential value of off-the-record media contact, there are clearly inherent risks engaged by the practice. These risks have not gone unnoticed. The recently issued and revised Interim ACPO Guidance for Relationships with the Media, for example, stresses that It is important to be aware that speaking terms [including use of the term off-the-record] are sometimes misunderstood or used interchangeably. For this reason it is always important to clarify how they will apply before exchanging information.124
pp43-44, lines 24-2, Catherine Llewellyn, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-21-March-2012.pdf 120 p43, lines 7-10, ibid 121 p43, lines 11-16, ibid 122 p44, lines 3-21, Chief Constable Peter Vaughan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-21-March-2012.pdf 123 p31, para 63, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-LordMacdonald-QC1.pdf 124 p5, para 3.6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Submission-from-ACPO-InterimGuidance-for-relationships-with-the-Media.pdf
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2.64
A succession of Media Policies and Standard Operating Procedures (SOPs) issued by the MPS also appear to have recognised this point. Special Notice 19-00 (A new policy for relations with the media) stated that: 125 when confidence and trust is established there may be occasions when senior officers will feel able to talk to reporters on an off the record basis dealing with matters not for public disclosure, explaining reasons for maintaining confidentiality and specifying what might be published. However, the notice also warns that: 126 it will be for OCU commanders and heads of branches to decide at what levels within their own areas of responsibility such discretion may be exercised. If there is any doubt about this, advice must be sought from the DPA or enquiries referred direct to them.
2.65
This advice was further developed in the MPS Media SOP 26/2006, which was issued on 5 July 2006. The warnings given in relation to off-the-record communications are similar in most respects to the current interim ACPO media guidance. It stated:127 Misunderstandings can sometimes occur about what off-the-record means. Some journalists interpret it as being completely non-reportable, whilst others believe that they can report what is said but not attribute it to the individual who said it. It is therefore advisable that before giving guidance of this sort, the officer/police staff members clarifies the basis on which it is being provided.
2.66
The updated MPS Media SOP issued in June 2008 contained similar warnings, but also emphasised that Police officers or members of police staff must not express views or give off the record guidance on cases/issues that they are not involved in as this could compromise an operation or investigation. Such action could lead to disciplinary action being taken.128 The policy also makes the point that it is good practice to keep a written note of any off the record briefings given.129 Risks in practice
2.67
Given the risks involved in the practice of off-the-record briefings or communications, a number of witnesses argued that this type of police and press interaction should cease, or at the very least be heavily modified. In very general terms, Lord Condon said that off-therecord briefings are never something which Ive felt comfortable with.130 Lord Stevens agreed, and said, I, like Paul Condon, have a problem about off-the-record briefing, especially if police officers are giving their opinion rather than what the evidence is, and its very dangerous territory, I think, in my view.131
p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-9-Special-Notice-19-00.pdf p3, ibid 127 pp1-66, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-DF1.pdf 128 pp52-53, para 4.8, Dick Fedorcio, ibid 129 pp52-53, para 4.8, ibid 130 p23, lines 4-5, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 131 p65, lines 6-10, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf
126
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2.68
As detailed above, Cumbria Constabulary have a policy of not giving off-the-record briefings to the media save in exceptional circumstances.132 As to this, Ms Shearer said:133 I think I would expect the justification to be incredibly significant and the sort of times that I would perceive that to be is around counter-terrorism and at that sort of level. Thats the time when you should be considering off the record. Everything else should be on the record, if you are going to say it.
2.69
Anne Campbell, chair of the Association of Police Communicators (APCOM) and head of corporate communications for Norfolk and Suffolk constabularies, found the term itself unhelpful. She said:134 I prefer not to use the term off the record. Again, I think the connotation is unhelpful. I think there are occasions where its useful to have what I would call a background briefing, to give the context to help a journalist understand more of the story in order to make a decision one way or the other. I think off the record, its not a phrase that I personally use and its not a phrase that you would hear in the department used by colleagues. As I say, you do occasionally do a background briefing, but those background briefings would also then be uploaded to our Spotlight system. So basically there is a record of everything, and it will be very clearly stated whether its for publication or not for publication but for guidance.
2.70
Despite some of the misgivings in relation to off-the-record contact, it is difficult to quantify the extent to which the practice actually gives rise to the problems identified in the above sections. Mr Sullivan, for example, could only provide one example where a confidential briefing had been provided by the police and a trust had been broken by a journalist. He said:135 There was one occasion I hadnt long been a crime reporter, but there was a briefing given by actually it was the head of the counter-terrorism unit, or antiterrorist squad, as they were in those days, and I cant remember or recall the actual details of the briefing, Im not even sure I was present, actually, but there was a reporter from one newspaper who hadnt long been a member, who went back to his office, presumably told his news desk what hed heard, and was then required to write the story. This caused a lot of problems, as you can probably imagine and this particular reporter was excluded from the CRA and we obviously offered our sincerest apologies to the Metropolitan Police and particularly the senior officer who gave that briefing. Thats the only occasion I can recall.
2.71
This apparent reluctance to break the trust that exists between police officer and journalist where information is being provided confidentially corresponds with the evidence of Dr Mawby, who recalled:136 A number of the crime reporters I interviewed talked about how such communications [i.e. off-the-record] were important in keeping up-to-date and informed, as well as
p15, para 39.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-GillianShearer.pdf 133 p42, lines 9-14, Gillian Shearer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-26-March-2012.pdf 134 p52, lines 10-23, Anne Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-26-March-2012.pdf 135 pp31-32, lines 19-9, Michael Sullivan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-15-March-2012.pdf 136 p8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Dr-Rob-Mawby.pdf
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forming part of their ongoing relationships with key sources. For example, a crime reporter with 40 years experience summed up the benefits thus, I like to deal with detectives. Most of the information is off-record and if I used it, that would be it finished. 2.72 Similarly, and in respect of the potential lack of clarity that exists about what the speaking term off-the-record actually means, Justin Penrose, crime correspondent at the Sunday Mirror, commented that I have received off-the-record information, but only recall this being proactively offered by the police to reporters as a group. In my experience there are three levels of information: reportable, off-the-record (where information can be reported but not associated with anyone), and non-reportable. The police are very clear in briefings where the information that they are giving sits in terms of these levels.137 It is telling in my view, that even those informed witnesses that viewed the concept or practice of off-the-record communications with a degree of scepticism conceded that it could be a valuable policing tool in certain circumstances. Mr Baker, for example, said that:138 Im not a huge fan of what people term off the record, although they do mean different things by it, Ive found, but there is a place for it. If that is in extremis, if life is going to be endangered if an inquiry is going to be prejudiced, then there is a place for it, but it should be limited, in my view. He expanded on this point and said:139 There will be circumstances at the top end of the business where lives are at threat, theres a national security issue or an inquiry is about to be completely scuppered by certain behaviour, then that would be appropriate to have a conversation that was not yet at that moment to be published. I think there is a difference. I think a more broad-brush approach, where people are making up their own rules and definitions of what this looks like, for the best intentions, is what Ive found is a major gap i.e. theres no clarity about the rules, the policies are very different, albeit well intended, and so that leaves lots of staff with no where to go, in my view. 2.74 Mrs Filkin also agreed that there was value for the Police Service in the limited and responsible use of off-the-record communications. She said:140 I have no doubt that the police will have to occasionally do off-the-record briefing, because otherwise they would jeopardise an investigation, and a reporter may have got a bit of a story which, if they ran it, would be very harmful, and the only way to prevent that being run, in a sensible fashion, would be to give them an off-the-record briefing and to tell them that you would inform them as soon as you could when it was possible to let that get out onto the public airwaves. 2.75 I certainly agree that in the circumstances outlined above, and for example in the context of counter-terrorism operations or other sensitive police investigations, some form of nonreportable or confidential briefing mechanism should continue to be available as a limited tool for the Police Service in their interaction with the media. I am not sure that any specific
2.73
pp11-12, para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-JustinPenrose.pdf 138 p37, lines 8-23, HMI Roger Baker, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf 139 pp45-46, lines 14-3, ibid 140 p30, lines 2-11, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf
137
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guidance from me in this area is necessary or would be helpful. I do, however, make some observations on the matter which are addressed in Part G Chapter 4 below. 2.76 I would endorse the comments both of Mr Baker and Mrs Filkin comments in relation to the need for transparency in this area. If the police are simply seeking to correct an inaccuracy within a story, for example, then I can see no legitimate reason why that contact should not be considered to be on-the-record. Beyond these matters, the specific recommendations I make in this domain are set out in Part G Chapter 4 below.
Leaks of information
2.77 As Mr Jay identified in his opening to this Module of the Inquiry, leaks of information are another potential manifestation of the arguably overly close relationship between the police and the media.141 In this section, I will consider this subject and the associated problem of the attribution or misattribution by the press of police sources to stories. In setting the context to this issue, Dr Mawby suggested that:142 unauthorised disclosures or leaks by police personnel to the media will always be a threat to a police forces control of information to a greater or lesser degree depending on circumstances. The disgruntled employee or the whistle blower can be an important media source. The extent to which leaks are either in the public interest (for example, bringing malpractice to light) or a problem (for example, putting someone in danger) depends on the circumstances of each incident. 2.79 The evidence that I have received would suggest that in general terms, the problem of leaks to the press has been an enduring issue faced by the Police Service. The actual extent of the problem has been a matter of some debate. The former Home Secretary, Jack Straw, said that although he had no direct knowledge of this issue, he had nevertheless formed a view during a brief period at the Bar during the 1970s that:143 in every police station, the local or national papers would have a stringer, who was a police officer or member of staff, who they were paying [for information] 2.80 Lord Reid, who held the position of Home Secretary from May 2006 to June 2007, said that he had experienced two media related leak incidents that gave rise to concern. In one case, the informant had been identified as a former Detective Inspector at the MPS who had retired but then subsequently returned to work as a police staff member.144 The individual concerned was sentenced to eight months in July 2007 for misconduct in public office.145 The second case was in relation to a leak about terrorist and counter-terrorist activity but the source was never discovered.146
2.78
pp14-15, lines 18-15, Robert Jay QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/ lev270212am.pdf 142 p7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Dr-Rob-Mawby.pdf 143 pp73-74, lines 16-10, Jack Straw, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-16-May-2012.pdf 144 pp148-149, lines 19-20, Lord Reid, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-23-May-2012.pdf 145 pp149-150, lines 21-2, Lord Reid, ibid 146 p150, lines 4-21, Lord Reid, ibid
141
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2.81
Lord Condon explained that during his period as Commissioner of the MPS, leaks to the press were a cause for concern in a general way.147 He said: 148 I think theyre always a concern. Again, you reluctantly dont accept but you sort of grudgingly acknowledge that, in a force of 45,000 men and woman, police and civilian, occasionally there may be leaks, for mixed motivation and probably occasionally for financial reasons. But, again, during my time I was not aware that it was a significant issue beyond the general challenge of dealing with bad police officers.
2.82
Lord Stevens recalled that he had developed considerable experience with the problem of leaks of confidential information to the media from my experiences in Northern Ireland.149 However, to the best of his recollection, during his time as Commissioner of the MPS he was not aware of any specific cases of leaks to the media by individual officers.150 Lord Blair said that during his tenure as Commissioner of the MPS he felt that there were an increasing number of leaks to the media.151 He suggested that the leaks were emanating from the MPS management board and the level just below,152 he explained that:153 on no occasion did I ever suspect that any of my senior colleagues were passing on information for money, but I do believe that on some occasions some were being indiscreet as a result of a desire to advance their own views in the public mind or to improve their own public profile. The leaks referred to were of a gossipy nature relating to tensions and disharmony within the MPS management board at the time, rather than leaks of sensitive information relating to police operations or ongoing cases. Lord Blair described the desire to gossip as a natural human habit, but understandably one that ought to be stopped.154
2.83
2.84
Dick Fedorcio, Director of Public Affairs for the MPS during the Commissionership of Lord Blair and beyond, confirmed that as a result of concerns about the way management board was behaving in relation to things appearing in the media ,155 the MPS management board itself, in February 2008, issued a bespoke media policy to govern their relations with the press. Mr Fedorcio said that there had been an inappropriate flow of information from a limited but senior cadre of officer within the MPS at the time.156 He explained that there had been a frequency to the leaks and that this illicit briefing of the press went on for a number of months.157 Mr Fedorcio commented:158 It was very disturbing, and a very difficult time for the organisation and for Sir Ian
p41, lines 9-12, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 148 p41, lines 12-20, Lord Condon, ibid 149 pp25-26, para 71, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-LordStevens.pdf 150 p26, para 72, ibid 151 p18, para 43, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Blair.pdf 152 p42, lines 3-6, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-MorningHearing-7-March-2012.pdf 153 p18, para 43, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Blair.pdf 154 p49, lines 5-20, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-MorningHearing-7-March-2012.pdf 155 p72, lines 13-15, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-13-March-2012.pdf 156 p73, lines 3-13, ibid 157 pp74-75, lines 6-12, ibid 158 p73, lines 16-20, ibid
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Blair to lead the organisation when that was going on around him. Would I would say is that the people who I suspect are no longer with the organisation. 2.85 Sir Paul Stephenson, former Commissioner of the MPS, had been Lord Blairs deputy during the period in question.159 Sir Paul said that upon first joining the MPS as Deputy Commissioner in 2005 there were:160 frequent newspaper stories of disharmony within the MPS senior management. I believed it was likely that some of the reporting emanated from a small number of self-interested officers, who either leaked to the media themselves or gossiped to others who did. Accordingly, Sir Paul made it a priority of his Commissionership to ensure that the behaviour described did not continue.161 2.86 Sir Paul explained that given a lack of specific evidence, his preference was not to try and identify the senior colleagues referred to above. However, he did go on to say:162 Im referring to what I consider to be a very small number of the management board who, on occasions, either gossiped or leaked about stories from within the Met and from within the management board that was deeply unhelpful and actually added to a continuing dialogue of disharmony and almost dysfunctionality within the Met at the most senior levels. That was hugely distracting and, in my opinion, unprofessional. Sir Paul said that the leaks had been damaging to the organisation because:163 if youre trying to run a management board with people making contributions and having an open, frank discussion where you are trying to engender a team who are willing to disagree with each other in trying to get to the best outcome, to have that reported as management board at war is deeply unhelpful in trying to creating that effective team. 2.87 It was for this reason that Sir Paul encouraged the practice of having a press officer present where there were meetings between senior MPS officers and members of the media.164 On this point he said:165 I thought it would be very helpful if matters came through the DPA generally, and if the DPA were present. In that way, it might discourage the gossiping and what might be described on occasions as being a little bit too loose-lipped This would certainly appear to me to be a very sensible precaution where the circumstances allow. Sir Paul said that he believed that the occurrence of leaks from senior officers
p2, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-PaulStephenson2.pdf 160 p8, para 23, ibid 161 p8, para 23, ibid 162 p10, lines 10-24, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf 163 p12, lines 14-23, ibid 164 p8, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-PaulStephenson2.pdf 165 p13, lines 6-22, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-5-March-2012.pdf
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substantially reduced during the period of my Commissionership.166 However, this may have had more to do with a change of personnel within the senior team at the MPS rather than as a result of a specific policy. Sir Paul said:167 there were less newspaper stories about dysfunctionality in the Met and dysfunctionality at senior level I dont claim to be the most wonderful Commissioner ever that managed to do things that other people didnt achieve. I think I was extraordinarily lucky with the people I had on my team, who were hugely professional and were not tempted to behave in that way. So I was a very fortunate man in that respect 2.88 This period in the MPS history also raises the definitional question of what actually constitutes a leak. It is not a viewpoint that I would share but some may argue that gossip of the type described, however damaging it may be to an organisation, does not constitute a leak of unauthorised material in the true sense at all. Catherine Crawford, formerly the Chief Executive of the Metropolitan Police Authority, addressed this point when she said:168 my understanding and to some extent my experience, that is a very wide spectrum that is covered by the word leak. So at one extreme you might have passing on, either for money or other motives, classified material which might endanger the security of the state, which clearly is a criminal matter; to the other end of the spectrum, where you can be talking possibly about someone the expression has been used in this Inquiry indulging in a little tittle-tattle, maybe saying to a journalist, You may think that, I cant possibly comment, which is always an indication that there may be something more to probe at 2.89 More generally, Sir Paul said that he believed that there was, and perhaps still is:169 a view held by some in positions of influence to the effect that the majority of police officers gossip and leak information to the media. This is simply not the case. However, any such perception, wholly untrue though it may be, is damaging. He also made the point that in view of the MPS size and the volume of valuable information which it holds as an organisation information misuse and leaks to the media are always a risk.170 However, he considered that set against the number of people the MPS employ, the number of such events was relatively low.171 Nonetheless, he conceded that the fact that leaks occur at all represents a real problem for the Police Service.172 He said:173 Their effect is potentially much greater than the frequency of their occurrence would suggest. It is an issue for all major forces across the world and indeed for similar organisations. This was a problem that I had faced in my career at Merseyside Police, where leaks to the media by officers undermined the image of the overwhelming
p9, para 26, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-PaulStephenson2.pdf 167 p17, lines 8-17, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-5-March-2012.pdf 168 pp77-78, lines 20-8, Catherine Crawford, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-29-March-2012.pdf 169 p10, para 27, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-PaulStephenson2.pdf 170 pp22-23, para 57, ibid 171 pp22-23, para 57, ibid 172 pp22-23, para 57, ibid 173 pp22-23, para 57, ibid
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majority of staff who were honest and professional. I believe the MPS must always remain vigilant to the risk and reality of corrupt or irresponsible behaviour by a few. 2.90 In analysing the extent to which this issue has been a problem for the MPS, Sir Paul provided the following breakdown:174 16 police officers and police staff have been prosecuted for misusing police information over the past decade, of whom 11 were found or pleaded guilty. 29 police officers and police staff have been dismissed or asked to resign and 208 disciplined for misusing police information over the past decade. I understand that the numbers of officers/staff disciplined for misuse of information has remained stable in the past three years. It is not clear how many of these cases relate to the unauthorised disclosure of information to the media specifically. 2.91 Peter Clarke, formerly an Assistant Commissioner within the MPS, expressed the view that from my experience of over 30 years, serving in uniform and detective roles across London, I think the extent of leaks from the MPS has been greatly exaggerated, although I would not suggest for a moment that it is not a problem.175 Mr Clarke, for example, recalled the police investigation in Birmingham into an allegation that a British serviceman had been targeted by a terrorist network. On the morning of the arrests it became clear that key details of the investigation and the evidence had been leaked. The person or persons responsible for that leak never became known; however, and Mr Clarke commented that:176 the circle of knowledge across Government was extensive because of some of the issues involved in the case. One might think it instructive, to some extent at least, that many of the early media reports on the morning of the arrests were coming not from crime or security correspondents, but from political correspondents.
2.92
Perhaps of a similar nature was the issue of leaks in relation to the Cash for Honours investigation. Lord ODonnell, former Cabinet Secretary, recalled that he asked Sir Paul Stephenson in 2007 to look into the fact that information in relation to the police investigation was frequently finding its way into the public domain.177 He said: 178 It didnt seem to be in the politicians interest for this information to have emerged, so I simply asked Sir Paul Stephenson: would he kindly look into the issue? Because I didnt believe the leaks were happening at my end. I mean, there may have been other leaks happening from my end, but on this specific issue, I wanted his view.
2.93
Former MPS Assistant Commissioner John Yates had been in charge of the investigation but Lord ODonnell confirmed that he had not at the time (or since) necessarily come to the conclusion that he was responsible for the leaks. He explained: 179 Well, he was doing this investigation, so in a sense I wasnt necessarily saying it was him. I was just saying it was an area that he was in charge of and could Paul
p23, para 61, ibid p21, para 43, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Peter-Clarke. pdf 176 p21, para 43, ibid 177 p86, lines 9-21, Lord ODonnell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-14-May-2012.pdf 178 pp86-87, lines 22-3, ibid 179 p87, lines 10-21, ibid
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Stephenson look into that area and see was there someone in that group who possibly was there. But it was quite apparent to me that a number of senior police officers had very strong links with the media, and they were very close and, in my view, I would say, too close. Their defence of this was that this was necessary, and this was true of a number of senior police officers. I happen to think its not the right way to operate. 2.94 Whatever the reality of the situation, this again would appear to have been an issue of perception. Lord Mandelson, however, in his evidence, went much further. He said that it was his solid belief that Mr Yates had been responsible for the leaks in question.180 He explained:181 All of those close to the investigation were absolutely convinced that Mr Yates was briefing journalists throughout the investigation, and frankly it was common knowledge in journalistic circles that this was happening. I remember a journalist remarking on this to me himself. 2.95 That viewpoint does not correspond with the findings of the police review into this matter. The review was led by the then Chief Constable of Surrey Police, Bob Quick. Although there is some debate about the action taken following the completion of the review, Mr Quick confirmed in his evidence that he found:182 no evidence of leaks, and more than that, I examined the pre-interview disclosure of material during the interview of a number of suspects, and it was clear to me that some of the material in the public domain that was being created as leaked material may well have been sourced from people who had been the subject of an interview and therefore the disclosure of material in preparation for that interview. Specifically in respect of Mr Yates, Mr Quick said:183 I certainly could see no evidence through my review of deliberately leaking material, and I saw robust and secure processes to handle the material secured through the investigation. 2.96 The allegations were also strongly denied by Mr Yates.184 In conclusion, Sir Paul said the following:185 any leaks that were happening could be much better explained of coming from without that team, and of course it is the case that the most sensitive information in that operation never leaked 2.97 I do not think it necessary for the purposes of this Inquiry for me to reach any conclusions on this matter. Suffice it to say, there is disagreement as to the actual source of the leaks and the matter may never be resolved to the satisfaction of those concerned.
p110, lines 7-9, Lord Mandelson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-21-May-20121.pdf 181 p44, lines 13-19, ibid 182 pp93-94, lines 22-5, Bob Quick, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-7-March-2012.pdf 183 p95, lines 6-9, ibid 184 p42, lines 7-20, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 185 p48, lines 3-12, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-5-March-2012.pdf
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2.98
Bringing matters forward, Mrs Filkin, through her report The Ethical Issues Arising From The Relationship Between Police And Media, reported that:186 it is clear both from what appears in the media, and from what I have been told, that there is contact which is neither recorded nor permitted between the media and police officers and staff, at all levels. This results in improper disclosure of information which is damaging to the public, the MPS and to the policing of London. In attempting to provide some context to this issue, Mrs Filkin said that there was no consistency in relation to which parts of the MPS were said to be more susceptible to leaks, making the point that its always somewhere else.187 She also recorded the widespread view that a certain amount of leaking is inevitable.188
2.99
As to the potential scale of the problem, Mrs Filkin said:189 it was a big enough scale for a lot of people inside the Met to be worried about it, but in terms of numbers, no, I couldnt say anything solid about that, I dont think, other than almost everybody I spoke to felt it did the Metropolitan Police Service harm, that it was thought, sometimes wrongly, to leak. I make the point that I saw instances of other people in other organisations leaking information about the Metropolitan Police Service. So that obviously happened too, but certainly people within the Metropolitan Police Service felt that it did them harm that that was a reputation or a perception, however accurate it turned out to be.
2.100 The current Commissioner of the MPS, Bernard Hogan-Howe, told the Inquiry that there had been 9 separate investigations recorded into police officers leaking material to the media since he took on the role in September 2011.190 He confirmed that of these, five investigations were linked to information leaks to national newspapers.191 In parenthesis, it is interesting to note at this point that despite accusations in some quarters that there has been a chilling effect on the relationship between the police and the media as a result of this Inquiry, there have still been a number of incidents to cause the MPS some concern. 2.101 This point was reinforced by the evidence of Ed Stearns, the Chief Press Officer for the MPS Directorate of Media and Communication, who despite reporting that the amount of informal communications between police officers and journalists had dwindled in recent months, confirmed that there were still occasions when he was concerned about the provenance of information appearing in the mornings press cuttings (accepting, of course, that it does not necessarily follow that the information provided to the journalist comes from a police officer or member of police staff an issue that I will deal with in more detail later in this section).192
pp13-14, para 3.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf p10, lines 2-5, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf 188 pp26-28, para 3.3.4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin. pdf 189 p10, lines 9-21, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf 190 p62, lines 5-11, Commissioner Bernard Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-20-March-2012.pdf 191 p67, lines 5-11, ibid 192 p46, lines 10-20, Ed Stearns, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am.pdf
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2.102 Commissioner Hogan-Howe agreed with his predecessors that within an organisation the size of the MPS, information misuse (including leakage) will always be a risk.193 However, he stressed that the organisation worked hard to mitigate that risk by, for example, making those who manage employees with access to MPS databases accountable for audits of that usage.194 He also pointed out that there were systems and processes in place to identify, respond to and detect leaks to the media.195 This includes a daily media review meeting to assess current media and press articles linked to the MPS with a view to identifying any reports which appear to be based on unofficial sources.196 Furthermore, Commissioner Hogan-Howe explained that:197 Those identified as potential leaks are then allocated to the relevant DPS [Department for Professional Standards] investigation team to assess and investigate as appropriate. The MPS is one of the few organisations which has established an independent command to deal exclusively with both overt and covert complaints and investigations. 2.103 Cressida Dick, Assistant Commissioner Specialist Operations (ACSO) for the MPS, said that it is clear that over the past few years there have been problems with a small number of MPS personnel being willing to leak unauthorised and/or operationally damaging information to the media.198 Furthermore, Ms Dick explained that leaks from the MPS to the media had, on occasions, undermined investigations and had damaged individuals and public confidence.199 Ms Dick also explained why she was confident in her assertion that this was not an endemic problem for the MPS:200 there have been a limited number of convictions, and indeed misconduct findings, in relation to leaks so losses of information, for example, whether negligent or just careless, when its official secrets, through to actually forming a relationship with somebody and deliberately passing information to somebody for example, a member of the press we have had a small number of convictions and some misconduct findings. So thats why its very clear to me. Ive also twice during the last couple of years been in charge, at the management board level, of our professional standards area, so I see the sort of intelligence and the investigations that were doing, and they are very difficult and frequently we dont know whether the information has come from the police or from some other party, but there are sufficient there for me to believe, again, that some of these unauthorised disclosures have come from the police I think in relation to that, I am confident that its not an endemic problem. I spent sort of, in some senses, all my service thinking about issues like this and talking to colleagues and talking to colleagues in other forces around the world, and I genuinely do not believe that this is a culture or anything other than isolated individuals. Thats my view.
p18, para 44, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-ofCommissioner-Bernard-Hogan-Howe1.pdf 194 p18, para 44, ibid 195 pp18-19, para 46, ibid 196 pp18-19, para 46, ibid 197 pp18-19, para 46, ibid 198 p3, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-AC-CressidaDick.pdf 199 p18, para 45, ibid 200 pp19-20, lines 3-7, Assistant Commissioner Cressida Dick, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-12-March-2012.pdf
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2.104 An MPS audit analysis revealed that between 1 April 2006 and 31 August 2011, there were:201 38 investigations involving 41 allegations relating to inappropriate relationships with the media that resulted in the alleged leakage of police information. Investigation into these 41 allegations led to the successful identification of the officer or staff member who was the source of the leak in 13 instances (32%). The remaining allegations are shown as unidentified officer or staff member. The outcome of the investigation into the 41 allegations reveals that 25 (61%) resulted in no further action being taken, 11 (27%) are still ongoing investigations and management action accounts for the remaining 5 (12%). 2.105 In relation to the scale of the problem in the Police Service more generally, Roger Baker, one of Her Majestys Inspectors of the Constabulary, said that:202 we checked the databases to find out what was being reported, not just within the police, but we took the Police Complaints Commission, the various commissioners who keep data on the police. So we searched the databases to find out what was the scale of the ill that everyone seemed to want to cure. What we find out, over a five year period we went back to April 2006 in the main we found 314 cases that could be classified as leaks to the police. Im sure there were far more that hadnt been recorded in this way, but 314, which broke down to relationship issues, which had to be fairly specific within this, which there were 12 of across England and Wales, and 302 which were around information disclosure to the media, most of which couldnt be traced through sources. So there could have been a relationship but it wasnt clear. Beyond that, theres clearly a lot more going on, is my view, and part of that is because this is not the top or hasnt been the top of peoples agendas. Your systems and processes have not been focused on finding these things out. Theyve had to be fairly major issues for them to become recorded at that moment in time.
2.106 It was Mr Bakers assumption, therefore, that the number of leaks recorded by the Police Service (as detailed above) did not truly represent the extent of the problem.203 Jane Furniss, Chief Executive Officer and Accounting Officer of the Independent Police Complaints Commission (IPCC), reported that over a five year period (2006/7 to 2010/2011) there had been 5,179 recorded allegations relating to the improper disclosure of information this represented around 2% of all allegations recorded for that period.204 Ms Furniss confirmed that is was not possible to identify through the IPCCs data whether the improper disclosure was made to the media, a private detective, or to another party for example. She explained:205 I think its important to recognise that its quite a wide category and I dont mean to diminish its importance by describing it this way it may be a curious police officer whos decided to access the Police National Computer, for example, to find out something about a celebrity. It may be someone whos looking to see whether his daughters new boyfriend is a suitable young man. It could be a very wide range
p19, paras 49-50, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-ofCommissioner-Bernard-Hogan-Howe1.pdf 202 pp62-63, lines 17-15, HMI Roger Baker, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-5-March-2012.pdf 203 pp63-64, lines 19-3, ibid 204 p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jane-Furniss.pdf; p1, IPCC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/IPCC-Submission-to-Leveson-Inquiry-Annex-B1. pdf 205 p7, lines 8-23, Jane Furniss, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-hearing-28-March-2012.pdf
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of receiving information, getting information to which theyre not entitled, through to information being sold to organised crime. It covers a very wide range of activity under that particular label, and its not possible to break down, not without going to every force and asking them to do that kind of analysis, to know precisely how many fall into those different categories. 2.107 Mike Cunningham, Chief Constable of Staffordshire Police and ACPO lead on Professional Standards, said that the most common leak or approach to the press was:206 normally from disgruntled members of staff who have a beef about organisational issues. The service is going through significant change and the changes within the organisation, some staff feel that they need to vent their anger at the organisation through the press This certainly corresponded with the experience of Chris Sims, the Chief Constable of West Midlands Police, who said that there had been occasional leaks within his force area by staff disaffected by national developments or local policy.207 However, Mr Sims did not believe that the unauthorised dissemination of information from police officers to journalists was generally a problem for his force.208 2.108 The evidence of other forces outside of the MPS was of a similar nature. I will deal with two by way of example. Peter Vaughan, Chief Constable of South Wales Police, said that there had been three leak investigations within the past five years.209 He explained that they had been:210 initiated after information was received to suggest that following the arrest of a serving or a former officers arrest, certain information was leaked to the media. Two of the matters were unsubstantiated after investigation, whilst the third is currently under investigation. Mr Vaughan went on to explain that South Wales Police have a well resourced and dedicated Anti Corruption Unit who have high levels of capability and capacity to investigate issues of this nature.211 As a result of this unit, he said that:212 In 2011 we had 153 referrals to the anti-corruption unit, which they then used technology and other traditional policing methods to determine the correct course of action the local IPCC are complimentary about the way that we try and root out any malpractice, any wrongdoing. We try to get on the front foot to make sure were ahead of it
p64, lines 9-17, Chief Constable Mike Cunningham, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Afternoon-Hearing-29-March-2012.pdf 207 p8, para 31, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefConstable-Chris-Sims.pdf 208 p75, lines 2-15, Chief Constable Chris Sims, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-20-March-2012.pdf 209 pp37-38, lines 23-4, Chief Constable Peter Vaughan, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Afternoon-Hearing-21-March-2012.pdf 210 p22, para 72, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefConstable-Peter-Vaughan.pdf 211 p21, para 69, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefConstable-Peter-Vaughan.pdf 212 p39, lines 5-19 Chief Constable Peter Vaughan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-21-March-2012.pdf
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2.109 Within Avon and Somerset Constabulary there have been 20 leak investigations undertaken by the forces internal investigation unit in the past five years.213 Colin Port, Chief Constable of Avon and Somerset Constabulary, said that of the 20 incidents, 14 were subsequently found not to have been a police leak. In relation to the remainder, four resulted in disciplinary action, in one case, no offender was traced and one investigation is still ongoing.214 In relation to the four instances of disciplinary action, Mr Port explained why the officers concerned had not been dismissed:215 what concerned me when I looked at the figures was there were four leak inquiries which didnt result in someone leaving the organisation rather sharpish. These were domestic-type leaks where people had fallen out within the organisation, where theyd told stories about colleagues or told stories about partners, and so thats the reason, just to reassure the public, that we dont take leaks lightly at all. Police National Computer (PNC) 2.110 A specific area of concern for the Police Service is the unauthorised use of the Police National Computer (PNC). Karl Wissgott, Head of PNC Services for the National Policing Improvement Agency (NPIA), explained that the PNC was established in 1974 and has evolved over time to link a number of separate databases. It holds a range of records, including the details of individuals who are convicted, cautioned, arrested, wanted or missing; the registered keeper of vehicles; individuals with a driving licence entitlement or who are disqualified; certain types of stolen and recovered property including animals, firearms, trailers, plant machinery and engines; it supports enquiries against the National Phone Register; and contains the details of individuals on the National Firearms Certificate Holders register.216 2.111 The PNC is used by all police forces in the United Kingdom and other authorised agencies, for example the Serious Organised Crime Agency (SOCA).217 Mr Wissgott reported that it has:218
in excess of 250,000 users and in recent years has handled in excess of 169 million transactions (a check or update of a record) per annum, giving a daily average of just under 463,000 transactions. It makes extensive use of logging all enquiries and updates this functionality facilitates the auditing and police investigations. He went on to explain that a number of methods were used to try and ensure that the information retained within the PNC was protected and secure, including accreditation, audit processes and mandatory training for all PNC users.219 2.112 Individual forces also have their own audit plans which often work in conjunction with their Professional Standards departments,220 whilst the vetting of police officers and staff with
p27, para 35, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-ChiefConstable-Colin-Port.pdf 214 p27, para 35, ibid 215 p58, lines 7-14, Chief Constable Colin Port, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-27-March-2012.pdf 216 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Karl-Wissgott-taken-asread.pdf 217 p7, ibid 218 p7, ibid 219 p16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Karl-Wissgott-takenas-read.pdf 220 p16, ibid
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access to the PNC is a matter for chief officers.221 Mr Wissgott explained that through the PNC, police forces were able comprehensively to log all of the transactions carried out on the system. He said that these logs record all user activity on the system to the extent that both what was requested and the resulting response to the request by PNC can be interrogated.222 Moreover, he said that:223 the overt logging of transactions not only provides a record of what is being asked and the response but also acts as a deterrent to unlawful access because it is available for subsequent analysis and is accepted and used in court as part of the evidential record. 2.113 Despite the safety measures and audit systems in place, Mr Wissgott accepted that:224 there is, without doubt, evidence that the PNC is misused occasionally and that misuse, from time to time, involves unlawful disclosure. It is for that reason that safeguards are in place both at a national and an individual force level. It is our aspiration that the system will never be misused, but that is quite possibly unrealistic. We believe that the current security measures are effective and proportionate and that, although no unlawful disclosure is acceptable, I do not think that there is a widespread systemic problem, nor that any particular and specific additional security measure would be effective. 2.114 Commissioner Hogan-Hogan perhaps went further than Mr Wissgott in analysing the historical extent of this particular issue. He said that:225 over the years its been a chronic problem for the Police Service about unauthorised leaks of information, sometimes where officers and staff have used it for domestic purposes, but unauthorised, and occasionally fairly rarely, but occasionally where theyve been paid for information thats been passed on to people who shouldnt have had it. With reference to a Freedom of Information request reported in the Telegraph in July 2011, Commissioner Hogan-Howe confirmed that over 200 officers and support staff in the MPS had been disciplined for unlawfully accessing the Police National Computer in the previous ten years, 106 of whom had accessed information in the last three years.226 2.115 However, as I think Commissioner Hogan-Howe fairly pointed out, that must be taken against the millions of times that the PNC will have been accessed during the period in question. He said:227 I would never dismiss the seriousness of it. Each incident is serious we have a duty to protect information. So each incident would be serious. But if one was to consider over the ten years, each year wed employ 53,000 people and we turn over probably 5,000 to 10,000 people a year, the numbers involved admittedly, the ones we discover are relatively small in a very big organisation. But each incident should be taken seriously. Im not sure yet its a very serious problem organisationally, although others may conclude it is.
p17, ibid p17, ibid 223 p18, ibid 224 pp22-23, ibid 225 p67, lines 11-17, Commissioner Bernard Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-20-March-2012.pdf 226 p68, lines 17-22, ibid 227 p69, lines 2-15, ibid
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2.116 Against this backdrop, Commissioner Hogan-Howe provided the following view as to what additional safeguards may be needed, together with an assessment of the MPS current information assurance and audit systems:228 it may always be that there could be more done, but Im not sure the scale of the problem is such that there would be any need at the moment to increase the safeguards. Theyre fairly rigorous. First of all, there is a password access to computers, which means that the user of the computer can be identified fairly quickly. The biggest difficulty often is when there are printouts from computers, and if they are not managed properly, then wide access to the printout can lead to a wider dissemination than is legally allowed. That is a risk that we have to keep an eye on. The other area that is pretty helpful in helping us to monitor this type of problem is that certainly in the Met, we have a covert professional standards department. We have an overt one, so if a member of the public complains against a police officer, they will overtly investigate that, but then we have a covert team, quite a large team, who, if there is a suspicion of this type of misconduct, will covertly investigate it, either through the IT systems and through any other legal investigative technique that we have available. 2.117 The Commissioners evidence corresponded with that of Ailsa Beaton, Director of Information and Chief Information Officer on the MPS management board. She also confirmed that information leakage is integral to over two thirds of corruption investigations. Information is the commodity most valued by those who seek to corrupt MPS staff.229 Ms Beaton reiterated that information leakage and unlawful disclosure was a key strand of the MPS Professional Standards Control Strategy and that the PNC was subject to regular audit and additional dips sampling by professional standards.230 However, she did concede that in her view the current proactive monitoring of system audit trails could be improved.231 2.118 In conclusion, I am satisfied that the MPS and the Police Service more generally treat this issue with sufficient seriousness. However, it is equally clear that there can be no room for complacency in this area given that misuse of the PNC continues to be a problem for the service as a whole. I set out my recommendation in relation to this issue in Part G Chapter 4 below. Leak investigations 2.119 It was common ground that leak investigations are difficult to conduct, and are rarely able to identify the person responsible. Lord Stevens, for example, said that it was extremely difficult to enquire into leaks and ascertain who is responsible.232 Sir Paul Stephenson agreed and said:233 Whilst its important, on occasions, to mount a leak Inquiry, I have to be honest: on many occasions when we did it, you do so with a heavy heart because its going to be so difficult to come to a successful outcome.
pp67-68, lines 21-16, ibid p10, para 33, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/08/Witness-statement-of-Ailsa-Beaton. pdf 230 p10, paras 34-35, ibid 231 p7, para 22, ibid 232 p105, lines 12-23, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 233 p15, lines 8-12, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-5-March-2012.pdf
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Similarly, Mrs Filkin recorded that investigations of leaks tend to be futile and resourceintensive.234 2.120 It is not difficult to understand why this might be the case given that the information leaked is often known to a much broader grouping, particularly in a cross criminal justice system context. As Assistant Commissioner Dick put it, very often in the world that Ive been in, its quite hard to pinpoint the leak to the Metropolitan Police.235 2.121 The difficulty in pursuing investigations of this type was also illustrated by the evidence of John Twomey, crime reporter at the Daily Express and the Chairman of the Crime Reporters Association, who said that over the years he had been the subject of a number of leak inquiries.236 He explained:237 I think they must have been fairly half-hearted. You get to know about them maybe after theyd been concluded, and it seems sometimes that theyve identified the wrong people. Ive never been formally interviewed or directly asked. Mr Twomey was also clear that even if asked by the police to reveal to identity of his source, he would have declined to do so given his moral obligations in this regard.238 2.122 Mr Baker suggested that leak investigations can be made more difficult by the fact that there is a sloppiness of rules around what is permissible and what isnt.239 HMIC, through its report Without fear or favour a review of police relationship, also stressed the need for national standards in this area.240 I would fully endorse that recommendation and I deal with the Police Services ongoing response elsewhere in this section. 2.123 Despite the difficulties involved, Sir Paul argued that:241 sometimes one would have a leak inquiry even though it might come to nothing and you have to be very careful with the use of public resources to remind people of the leadership determination to do whatever it can to enforce good professional standards of probity. For her part, and whilst not meaning to belittle the difficulty in pursuing matters of this sort, Mrs Filkin felt that the MPS could do more to improve upon the effectiveness of the process. She argued for a speedier resolution procedure, where possible, and suggested that the actual process itself could be more transparent.242 In relation to her second point, she said:243
pp10-11, lines 22-8, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf 235 p42, lines 12-14, Assistant Commissioner Cressida Dick, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-12-March-2012.pdf 236 p42, lines 15-23, John Twomey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-19-March-20121.pdf 237 pp42-43, lines 23-3, ibid 238 p43, lines 4-7 ibid 239 p49, lines 22-25, HMI Roger Baker, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf 240 p5, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-without-fearor-favour.pdf 241 p15, lines 19-25, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf 242 p11, lines 8-25, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf 243 pp12-13, lines 15-7, ibid
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[The MPS are] very loath to tell their staff that theyre carrying out some of these enquiries and even more loath to tell them what the outcome was. I give an example not in relation to a leak but in relation to another matter, in which people across the Met had to get their information from the tabloids about what had happened to somebody Im sure somebody tried to be absolutely proper and not in any way undermine an individual more than they were undermined already because they were being sacked, but I think it doesnt help to create a culture that we dont approve of this and we do take it seriously and we do take action on it if you dont tell people that youre taking action on it. 2.124 I certainly agree that transparency of process can be an important tool in tackling this issue. It is not a panacea for a problem which, in all probability, will never be completely eradicated, however, it would strongly signal that it is an organisational priority and as such may help to promote increased internal engagement on this issue. 2.125 Commissioner Hogan-Howe argued for proportionality. He observed that:244 I would never argue for every leak to be investigated. I think you can drive yourself barmy, I think, if we did that. It is where the consequences are serious or it might display a pattern of behaviour that we want to investigate. Its those things that are of concern to me, not tittle-tattle that will happen from time to time, but it is if it starts to damage our reputation in terms of the integrity of how we handle confidential information and sometimes secret information, which it is vital we have that for the trust of our partners and of the public that we are able to maintain that sort of secrecy. 2.126 Elsewhere in the Report, I have recommended that it should be mandatory for ACPO rank officers to record all contact with the media, and good practice for junior officers and staff (for their own protection). I entirely accept that this in itself will not prevent a determined individual from leaking. However, as Commissioner Hogan-Howe pointed out:245 I think what it does mean is that if we do establish the source of the leak and then we ask them did they report that meeting, did they report their account, then theres a starting place for an investigation, both for a monitoring exercise or audit, to say: is that an appropriate link? Is that an appropriate sharing of information? It allows us to have that conversation. If someone has chosen not to point out the contact, then it puts them in position where they have to explain more, and that is the nature of any investigation of that type Its not conclusive evidence, but its a starting point that builds an assumption that might be challenged later, but the person who has a duty and a policy that says thats what they should do, they have to explain, presumably, why they choose to ignore it. Misattribution of leaks 2.127 An additional problem in attempting to quantify the scale of this problem is the phenomenon of what the press often refer to as a police source. Sir Paul Stephenson described the
pp63-64, lines 13-1, Commissioner Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-20-March-2012.pdf 245 pp64-65, lines 6-1, ibid
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misattribution of a leak to a police source as being one of the most disappointing and frustrating aspects of public life in London.246 He explained:247 the assumption very often is if a piece of information leaks into the media about an investigation or something that is very police specific, it must have come from the police, and if its the Met, it must have come from the Met. Very often that information will be in the hands of many other people. It might be in the hands of the governance authority, the Metropolitan Police Authority [now the Mayors Office for Policing and Crime]. It might be in the hands of the CPS, the Independent Police Complaints Commission many people. So theres the potential of leaks from elsewhere, and also it did seem to us on occasions that where the description was police source, it seemed more likely to have come from elsewhere, and there did seem to be a great deal more gossiping and I understand why in London than anywhere else I worked. This was the centre of power, this was where the national media was, there was much more interest, the place was much more political so therefore there was a great deal more conversations going on about policing in London outside policing than I ever experienced in any other force. 2.128 A number of other witnesses provided similar evidence. Mr Clarke said that:248 the expression police source can mean anything from a serving police officer, a member of police staff, a member of the Police Authority, or even someone who has been at a meeting where a police officer shared some information. Mr Port made the point that:249 it is also not uncommon for journalists to attribute information to, for example, a source close to the investigation but would never reveal to any subsequent investigation who that source was, making successful investigation very difficult. There is no way of proving there was, in fact, any police source. Mr Stearns agreed, and said:
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The information to the journalist comes from many, many different areas, and, no, I wouldnt agree that I would always assume that its officers, certainly not. 2.129 From a journalistic perspective, the term police source would appear to cover a multitude of sins. On occasion it may indeed be used to protect the identity of a police officer or member of police staff who has provided unauthorised information to the journalist. However, it is appears that the term is also used for a variety of other reasons, including to enhance the apparent legitimacy of a story or potentially disguise the lack of a credible source. At other times the information provided may in fact have been given on a perfectly proper basis but is described as being from an unidentified police source to add an air of investigative journalism.
246
p9, para 26, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-PaulStephenson2.pdf 247 pp18-19, lines 24-19, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-5-March-2012.pdf 248 pp21-22, para 43, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-PeterClarke.pdf 249 p26, para 33, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-ChiefConstable-Colin-Port.pdf 250 p47, lines 9-12, Ed Stearns, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am.pdf
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2.130 This problem was reflected in the evidence of a number of witnesses. Mr Davies explained that police source was occasionally used to refer to information provided in an off-therecord non-attributable briefing.251 Mr Ungoed-Thomas, the chief reporter at The Sunday Times, was clear that he only used the term for police officers,252 whilst others used it much more broadly. Sandra Laville, crime correspondent for the Guardian, for example, in defining her usage of the term police source, said that she viewed it as being broadly anybody linked to policing.253 She confirmed that this might, for example, include the Police Authority or IPCC.254 Michael Sullivan, Crime Editor of The Sun, went further when he said, I mean police source could be anything, it really could. There is a lack of clarity around that.255 Lucy Panton, former Crime Editor of the News of the World, candidly said that: Police source is used liberally in reporting.256 2.131 Mrs Filkins evidence also reflected the nature of this problem. She noted that the use of the term police source tended to imply a leak, but agreed that it may also be used properly to indicate that the source is an institution or someone which is different but related, such as the MPOC, or may in fact be a mask to try and protect the real provenance of a source.257 She made the point that:258 I was in one other organisation when a person who had a relationship, a proper relationship, towards policing gave information to a journalist, so I saw that happening, and I was in another organisation where a person said they had given information in the past and had described themselves as a police source. So I saw those sort of things happening Both Tim Godwin, the former Deputy Commissioner of the MPS, and the Commissioner expressed frustration at this problem, which can often cause confusion when deciding whether to pursue a leak investigation in the first place.259
2.132 A degree of lack of transparency in this area is inevitable given the often understandable desire of the media to protect the identity of their sources. Given the reputational damage that can be caused, I can also readily understand the frustration of the Police Service in circumstances where a police source is quoted but it then transpires that the information came from an outside individual. There is a balance here and I would certainly encourage the press to be as transparent as possible when using the term source, so that the general provenance of the information is more easily understood. I revert to this issue in Part G Chapter 4 below.
p24, lines 9-25, Nick Davies, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-ofAfternoon-Hearing-28-February-2012.pdf 252 p92, lines 9-15, Jonathan Ungoed-Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-14-March-2012.pdf 253 p42, lines 13-24, Sandra Laville, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-14-March-2012.pdf 254 p42, ibid 255 p58, lines 2-17, Michael Sullivan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-15-March-2012.pdf 256 p14, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Lucy-Panton. pdf 257 p16, lines 1-8, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf 258 p16, lines 12-20, ibid 259 pp62-63, lines 14-4, Commissioner Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-20-March-2012.pdf; pp15-15, paras 44-47, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/03/Witness-Statement-of-Tim-Godwin.pdf
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Whistleblowing 2.133 True public interest journalism into wrongdoing continues to play a vital role in the democratic accountability of public bodies and institutions. This is particularly so in the case of the Police Service given the concept of policing by consent. It is for this reason in particular that a framework is needed to allow for a safe and transparent relationship between the police and the media which works in the public interest, respects freedom of expression, but also respects the integrity of individual police investigations. At the same time, this framework must also still allow police officers and police staff the opportunity to report instances of wrongdoing, safe in the knowledge that the information provided will be treated in absolute confidence and with the seriousness that may be warranted. 2.134 It is within this context that consideration must be given to where the boundary lies between non-official communication and leaking. This line is often unclear and it may be that the only meaningful distinction is as between information which the organisation concerned is content to be released into the public domain and that which it is not. This latter category would clearly include and should comprise information which is operationally sensitive or otherwise protected from disclosure by law. However, it may also include information which is damaging for other reasons, for example, from a reputational standpoint, or because it is likely to undermine public confidence in policing. In these cases, some may argue that it would be extremely difficult for an organisation to sit in judgment on itself, and weigh up the competing public interests objectively. An obvious corollary in such circumstances is that the organisation will decide against disclosure where the balance ought to be been struck in favour of it. 2.135 It is therefore maintained by some that in the circumstances outlined above, leaking or unauthorised disclosure can serve the public interest. Such an example was provided by Sean ONeill, Crime Editor of The Times, in relation to the:260 disclosures over the Mets failures in the John Worboys and Kirk Reid serial rape cases; reporters learnt of serious investigative failings in both cases by attending early court hearings and put pressure on the Yard which forced it to make public disclosure of its errors. Ultimately this led to a fundamental reform of the way rape and serious sexual offences are investigated in London. 2.136 In relation to information which ordinarily should not be disclosed to a journalist, he explained that:261 In my experience this has been information about mismanagement, incompetence or inappropriate actions by their organisation or senior managers/officers. A few years ago I ran a series of stories which were highly critical of the work of the SOCA. At the time SOCA was extremely secretive, had no police authority or similar body to which it was answerable and had been totally exempted from the Freedom of Information Act. Huge efforts were made to try and track down my source who would have been dismissed had he/she been discovered. Thankfully they were not traced.
p14, para 67, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sean-ONeill. pdf 261 p8, para 43, ibid
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2.137 Mr ONeill made the point that officers often talk to reporters because they have serious concerns about the way their force is operating or about failures in investigations which have put the public at risk.262 Commissioner Hogan-Howe recognised this and said:263 I would never want to stop somebody in the public interest who wants to in the genuine public interest wants to reveal something that is not getting out another way, and in fact there is a statutory defence for that type of sharing of information with the press. Chief Superintendent Derek Barnett, President of the Police Superintendents Association of England and Wales, also accepted that going outside the confidential reporting system might be appropriate, but only in extreme circumstances.264 2.138 This leads to the associated debate around the extent to which an individual must exhaust internal procedures before disclosing confidential information to the media. On this issue, Lord Macdonald QC, the former Director of Public Prosecutions, expressed a cautionary view:265 I disagree that there is necessarily an unshakeable duty upon whistleblowers to exhaust their internal remedies before going on to leak. In too many organisations this would be a recipe for suppression. The route from whistle blower direct to journalist can serve a very strong public interest. Investigative journalism, in particular, depends strongly upon the confidence than an informant has that he may pass on information to a journalist without necessarily revealing his identity publicly, subject of course to any liability he may incur in law. Again, I believe it would be a matter of great regret if the Inquiry were to result in strong discouragement or further legal impediment to this process. 2.139 The evidence of Mrs Filkin lent some additional support to Lord Macdonalds analysis. She said that:266
the Metropolitan Police Service has an internal speak-up process [known as Rightline], which I think they take seriously I had looked at it in some detail and staff can report concerns, either personally or indeed anonymously on the telephone to that operation and those reports are looked at very carefully. I believe that the current Commissioner is looking at all those reports as they come in. So there is a process. What quite a lot of staff said to me is, Oh, well, I wouldnt use it because I dont know what they do with it and I dont trust it, and so in many instances I would say, Well, wouldnt it have been the sort of thing you could have brought to the attention of your manager?, and I would get the same reply. Obviously for some people there were concerns or fear about their own future if they were in any way regarded the term that they would use to me as a trouble-maker. But it was clear from looking at the system that quite a lot of staff did use it and do use it. But its very important, of course, that the Metropolitan Police Service do some more to make sure that people do use it if they need to and can trust it.
pp9-10, para 49, ibid p12, lines 20-25, Commissioner Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-20-March-2012.pdf 264 p77, lines 4-18, Chief Superintendent Derek Barnett, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/04/lev030412am.pdf 265 pp32-33, para 68, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-LordMacdonald-QC1.pdf 266 pp112-113, lines 5-2, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf
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2.140 HMIC made similar findings in their report Without fear or favour a review of police relationships. They recorded that:267 all forces have a method of anonymously and confidentially reporting integrity issues (whistle blowing), either by telephone or e-mail or both. Feedback from focus groups indicated a lack of knowledge or a level of scepticism and distrust regarding the anonymity of the systems. 2.141 With an eye to the future, it is clearly important that reporting systems are maintained and that individuals are encouraged to use them. I consider that the starting point for any police officer or member of police staff when wishing to report an issue of concern should be that they first look to their internal procedures. Given the apparent lack of trust in the current process, this may in fact argue for a more independently operated system. The logical location for such a system may be the IPCC given its statutory oversight role; given the obvious organisational ramifications of such a recommendation, I will be suggesting (in Part G Chapter 4) that serious consideration be given to the IPCC as playing an enhanced role in the potential solution to this very important issue. The impact on police investigations 2.142 One of the more obviously damaging aspects of leaks to the media is where they result in articles being published that contain confidential details about operational matters. This can have a direct impact on criminal investigations and may result, for example, in the provision of confidential information to suspects regarding police operations and evidence; it can undermine the confidence of victims and witnesses; it may damage the reputation and infringe the privacy of individuals where the media coverage relates to what are subsequently found to be unfounded allegations; and it may also cause unnecessary distress to individuals who are pursued by the media because they are the family or friends of a witness or victim. A number of egregious examples were provided in evidence. 2.143 Clive Driscoll, a Detective Chief Inspector in the MPS, recalled his experience as Senior Investigating Officer of Operation Fishpool, the re-opened investigation into the murder of Stephen Lawrence.268 He explained that given the high profile nature and understandable sensitivities surrounding the case it had been essential for the police to gain the trust of the Lawrence family. He also explained that the issue of the murder and the previous investigation had meant that the case was also very sensitive within the police because of the impact the McPherson report had had on the reputation of the MPS and the changes which had followed.269 DCI Driscoll said that for these reasons, we decided to keep information about the progress of the investigation very close and disseminate information on a need to know basis.270 2.144 Despite this, information was leaked to the media on more than one occasion. DCI Driscoll recalled that on 18 October 2007 a significant amount of information about the investigation271 was leaked through an article in the News of the World. He said that despite
p54, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-withoutfear-or-favour.pdf 268 p5, lines 8-16, Detective Chief Inspector Clive Driscoll, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-15-March-2012.pdf 269 pp3-4, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DCI-CliveDriscoll.pdf 270 p4, para 8, ibid 271 pp11-12, lines 18-7, Detective Chief Inspector Clive Driscoll, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-15-March-2012.pdf
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there being no permission for disclosure on the investigation we were doing at all, the article:272 identified that there was a forensic review going on, it identified the fact that we had a team working on Stephens case, which up until then wed managed to keep fairly quiet I think they talked about a secret location. It was never that secret, but it identified that the Metropolitan Police Service had moved on and were moving on within Stephens investigation. 2.145 DCI Driscoll explained that a second significant leak occurred following a meeting at New Scotland Yard on 7 November 2007. The attendees at the meeting were DCI Driscoll himself, Assistant Commissioner Dick (who was ultimately responsible for the investigation), two members of DCI Driscolls team, a representative from the CPS, Mrs Lawrence and her solicitor and barrister.273 The purpose of the meeting had been to share new evidence with Mrs Lawrence and her legal team and provide a general update on progress.274 DCI Driscoll recalled that less than two hours after the meeting had finished press enquiries were being made. He said:275 I received a phone call whilst I was on the train that there was an article that was going to be printed the following day which followed the meeting that wed just had, or appeared to follow the meeting wed just had. 2.146 The article itself appeared in the Daily Mail on 8 November 2007, the day after the meeting at New Scotland Yard.276 Not only did the article reveal that the confidential meeting had taken place, but it also referred to the forensic evidence that was discussed at the meeting.277 DCI Driscoll explained that the articles concerned disrupted the investigation and made my job much more difficult,278 they also negatively impacted on the polices relationship with the Lawrence family.279 He went on to say:280
At one point it seemed there was almost one story every month, most contained publically held or regurgitated information. However, confidential information about the forensic evidence was also being published in the media and I considered that to be compromising. 2.147 The journalist who wrote the Daily Mail article, Stephen Wright, denied that the source of his information had been a member of the investigation team.281 For the polices part, DCI Driscoll did not know the source of the leak but said that could only have come from someone within the MPS, the forensics team or the CPS, a number of whom had access to the sensitive material.282 He said that he was as sure as I can be it was not one of my own
pp11-12, lines 25-7, ibid p12, lines 13-21, ibid 274 pp12-13, lines 22-3, ibid 275 p13, lines 7-11, ibid 276 pp5-6, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DCI-CliveDriscoll.pdf 277 p14, lines 17-25, Detective Chief Inspector Clive Driscoll, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-15-March-2012.pdf 278 pp6-7, paras 15-18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DCIClive-Driscoll.pdf 279 p6, para 14, ibid 280 pp6-7, para 16, ibid 281 p5, lines 7-10, Stephen Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-15-March-20121.pdf 282 p7, para 19, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DCI-CliveDriscoll.pdf
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team I trusted them all.283 Given that some of the details that were published were partly incorrect, he offered the view that the person responsible appeared to be someone sitting on the perimeter.284 DCI Driscoll explained that:285 the situation became so bad that we eventually obtained a Press Restriction Order at the High Court to prevent the press reporting about the new evidence in Stephens murder. 2.148 On 5 September 2010, DCI Driscoll recalled that he was:286 informed by the MPS press office that Stephen Wright had got hold of some information which he proposed to publish, including information about the forthcoming arrests/charges and the fact that we were making an order for reporting restrictions To the best of my recollection he also had details of forensic information. All the information was highly confidential and sensitive and was kept very close. I do not know how it could have leaked but it was not known to many people and was potentially very damaging. DCI Driscoll explained that he asked Mr Wright, through the MPS press office, not to publish given that it would have had quite a serious consequence on the operation we were planning.287 Following representations from the MPS, the Daily Mail agreed not to publish the article in this instance.288 2.149 Moving matters forward, DCI Driscoll recalled that in the lead up to the trial he was informed by a contact that it was well known in Fleet Street that a named senior member of the MPS was briefing outside of official meetings; a later more serious allegation was also added. DCI Driscoll said that this concerned the close relationship between this senior member of the MPS and sections of the media. The relationship was rumoured to be corrupt.289 In relation to this specific issue, it is not known whether the senior member of the MPS referred to was the source of the leaks in 2007. DCI Driscoll explained that:290 My understanding is that an investigation did take place and that in fact that information has been passed across to the Independent Police Complaints Commission and indeed also to Operation Elveden, so I would respectfully ask that I dont give that name for fear of undermining what could be an ongoing investigation. 2.150 Whilst very careful to praise the contribution of Mr Wright and the Daily Mail in the pursuit of justice for the Lawrence family, DCI Driscoll offered the following thoughts in conclusion:291 I do think its essential that the police enjoy the confidence of the public, because we are not as effective as we should be without it, and I do believe that maybe lessons
p7, para 19, ibid p7, para 19, ibid 285 pp7-8, para 20, ibid 286 p8, para 21, ibid 287 p24, lines 3-20, Detective Chief Inspector Clive Driscoll, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-15-March-2012.pdf 288 pp13-14, lines 4-2, Stephen Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-15-March-20121.pdf 289 p8, para 22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DCI-CliveDriscoll.pdf 290 p26, lines 5-10, Detective Chief Inspector Clive Driscoll, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-15-March-2012.pdf 291 p27, lines 9-24, ibid
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could be learned which would benefit other investigations and other families that have tragically lost children having got the police to be in a position where we were conducting an investigation, which Im delighted to say resulted in some justice for Mr and Mrs Lawrence, just to reflect on how reporting can affect the family, how reporting can affect witnesses and how it can, even though I would be 100 per cent sure this was not the intention from the Daily Mail, it can undermine a good investigation. 2.151 Very similar comments could be made in relation to Operation Sumac, a murder inquiry into the killing of five women in Ipswich in 2006. David Harrison, a crime investigation officer working with the Serious Organised Crime Agency (SOCA) on the murder inquiry, said that he was told in a briefing that a News of the World surveillance team had been deployed to identify the members of the SOCA team and to also establish where the team was based.292 2.152 Mr Harrison believed that information in relation to SOCAs involvement in the murder inquiry could only have come from someone close to the investigation team, either the Suffolk murder inquiry or SOCA.293 Mr Harrison described how the actions of the News of the World jeopardised the investigation:294 It is historically known that murder suspects, before they realise theyre being investigated, may return to the scene of the crime. They may try and dispose of evidence. They may try to move bodies or they may even try to commit further offences. If, whilst doing that, they thought they were being followed they obviously wouldnt know that it was a legitimate police surveillance team or whether it was a newspaper, but if they thought they were being followed, they might very well stop what they were doing or not do what theyd planned to do if a surveillance officer can see the sort of evidence we were after, if that is not possible, then that weakens the prosecution case in the future The second objective of our surveillance was not only to look for the target to go back to the scene of the crime, but it was also that if he had intended to commit further murders, we were in position to either stop him or call resources to stop him. Again, if our surveillance had been weakened by having to try and avoid other surveillance teams looking for us, if wed lost the subject, he may have gone and committed further murders because we were dealing with something else, we were trying to keep away from other surveillance teams. 2.153 Detective Chief Inspector Philip Jones of the Avon and Somerset Constabulary, the senior investigating officer in the Joanna Yeates murder inquiry, gave evidence that the force received an enquiry from the Daily Mail concerning low copy DNA having been found on Joannas body during the investigation.295 He explained that the nature of the DNA had been known to a limited number of Avon and Somerset personnel and also to other relevant agencies and therefore a leak was suspected.296 DCI Jones reported that the leak investigation into this matter was still ongoing when he gave evidence.297
p4, lines 11-17, David Harrison, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-19-March-20121.pdf 293 p4, lines 18-22, ibid 294 pp8-9, lines 6-11, ibid 295 p7, para 24, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DCI-PhillipJones.pdf 296 p95, lines 1-24, Detective Chief Inspector Philip Jones, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-27-March-2012.pdf 297 p96, lines 9-15, ibid
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2.154 The description given by DCI Jones of the impact on the police investigation mirrored that of DCI Driscoll. He said that:298 the effect of such information appearing in the media had the potential to affect the morale of the team and seed distrust between us. It could be very distracting from our primary objective requiring us to review our investigation Crucially, it also had the potential to destroy the trust between the police and Joannas family if they believed that we were not informing them of investigative developments. 2.155 It is clear from the evidence that media coverage can on occasions have a negative impact on police criminal investigations. This impact is exacerbated where the information published results from a leak (or an assumed leak), given the internal disruption this can cause to the investigating team and the negative effect that it can have on the polices relationship with victims and witnesses. The points that I have already made in relation to leaks and leak investigations apply equally here. The above examples also perhaps argue in favour of closer (but transparent) engagement between the police and the media in cases of this sort. In conclusion, Commissioner Hogan-Howe provided an interesting analysis of this point:299 I think in the cases where the press come to us and say, We believe X committed this crime, we would always counsel them not to share that information with the public. It seems to me that if we are able to put into the discussion we dont initiate that piece of information as a starting point, but if they come to us with something which we know to be true, then we can hardly deny the truth and if theyre right, theyre right. But I think we have got a duty to try and persuade them to use that information responsibly, which often will mean not publishing it, because that, for me, will compromise the criminal justice process. Thats what its there for. All they can be reporting, often at an early stage of an investigation, is their suspicion. Well, as weve seen numerous times, suspicions dont always materialise into convictions. So for me, theres never a reason to start sharing partial information, and on the whole Ive found the press to be pretty good at that. The difficulty comes when you have a long-running investigation where the press start to challenge, on behalf of the public, whether the investigation is being run in a professional manner and whether or not youre taking all steps you can to secure a conviction. Thats where it can become more challenging. But I think provided the press are reassured that its a professional investigation thats being well led, well managed, they accept some of the problems we sometimes face and hold off. Use of social media 2.156 One of the more recent and potentially most effective tools at the disposal of the Police Service for communicating with the media (or perhaps more importantly, directly with the public) is through the portal of social media. 2.157 Despite its potential use, social media has not found complete favour within the Police Service. There are also reservations within the media. A number of witnesses regarded its advent as being unhelpful to the proper performance of the police and the press within their
p7, para 26, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DCI-PhillipJones.pdf 299 pp29-30, lines 21-25, Commissioner Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-20-March-2012.pdf
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respective roles. Colin Port, Chief Constable of Avon and Somerset Constabulary, for example, suggested that:300 difficulties can arise where people are spending more time tweeting than actually policing and we dont encourage officers per se to tweet. What we have is a number of groups of officers who will do it, farm watch or particular watch areas. But we dont encourage officers to tweet we use Facebook corporately, but Facebook, as we know from our own experience, has exposed officers, because of their naivety and trust, to potential compromise, so therefore we monitor and give guidance where appropriate in respect of that. 2.158 Anne Pickles, the acting editor of the News and Star and the Cumbrian News, and Nick Griffiths, the crime reporter for the News and Star, agreed that social media was not without its problems as a method of communicating with the Police Service.301 Ms Pickles described Twitter as a personal irritant,302 and said:303 since officers have started tweeting, its become an obstacle, really, for us. Its almost a full-time job now, monitoring Twitter for police officers tweets, and then of course, once theyre out, theyre completely out of control. Nobodys monitoring Twitter. So its followed by all sorts of threads and streams coming after an officers tweet. You get a point where it may be a touch ambiguous. You go to the press office: Ive just seen a tweet that says blah, blah has happened. We have no information on that. Try tweeting the officer involved. From our point of view, it wastes time and its just a blurring and a fudging of what was really quite a streamlined way of getting information 2.159 However, the more widely held view was that social media provided opportunities for the Police Service and media alike. The MPS now has its own social media policy.304 The policy sets out how the MPS will support and amplify the MPS corporate communication strategy and deliver increased direct communication and engagement with Londoners.305 Commissioner Hogan-Howe explained that the MPS general approach to this issue had changed in two principal respects:306 One is that we now have not only a policy but we actually have all the boroughs and the specialist departments, who are now being encouraged to use social networking rather than discouraged and the second thing is to actively allow our own staff access to the internet. The situation in the past had been that you could have access to the internet as one of the 53,000 if you could show good reason to do it So both in our use of social network and in our access to internet, were encouraging our staff to use it, not to have to explain why they want to use it. The Commissioner acknowledged that there were risks associated with this policy but said that:307
p54, lines 3-13, Chief Constable Colin Port, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-27-March-2012.pdf 301 pp13-14, lines 16-11, Anne Pickles and Nick Griffiths, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Afternoon-Hearing-26-March-2012.pdf 302 p13, lines 16-17, ibid 303 pp13-14, lines 16-7, ibid 304 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-ES2.pdf 305 ibid 306 pp75-76, lines 10-8, Commissioner Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-20-March-2012.pdf 307 p77, lines 1-4, Commissioner Hogan-Howe, ibid
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no doubt some will let us down and well have to deal with them appropriately, but I prefer that problem rather than an organisation thats a few years behind the times. 2.160 Ed Stearns, chief press officer for the MPS, said that social media offered the MPS an:308 opportunity to reach new audiences Its an opportunity for us to get out context around issues to the public, and ultimately its another way of reaching the public. Mr Stearns said that the MPS had a number of different Twitter accounts, including the corporate feed @MetPoliceUK which is used as a broadcast tool to provide updates on a range of news and other issues, and @MPSInTheSky which is used to highlight the work done by the MPS police helicopter unit.309 The MPS Twitter feeds are being rolled out to all boroughs and will be used to provide information and crucially to engage with local communities.310 2.161 Other police forces had a variety of different approaches to the use of social media. South Wales Police provides guidance to police officers on the use of social networks which includes a prohibition on divulging any information that may compromise police operations.311 Peter Vaughan, the Chief Constable of South Wales Police, said that officers within the force were encouraged to tweet to their communities but to a limited extent.312 He explained that the force has:313 one Twitter account for each of our basic command units we have what we call ourbobby.com which is a website that each of the policing wards, policing areas, electoral wards have their own information on the crime patterns and everything else thats going on. 2.162 Deputy Commissioner of the MPS, Craig Mackey, also acknowledged that the use of social media by the Police Service did not come without its risks.314 However, in respect of its use by Cumbria Police (the force for which he was previously responsible), he said:315 It would be fair to say if I was doing an assessment of where I am now to where I was last year, Cumbrias probably a bigger user of social media than the Metropolitan Police, even given the size of the two organisations. It embraced Twitter, Facebook, Bebo, all the social media far earlier than most others, and it also has some real practical examples. Id go back to the 2009 flooding where the intelligence cell actually found a lot of people who had been evacuated by Facebook status and followed things up in a way that previously wed have got in a car and gone off and done things. It also brings an immediacy to it in terms of last Christmas drink drive operation, information going straight out on Twitter in terms of what we were doing, where we were. It brings an immediacy and an accountability in terms of whats going on. Its not ideal, the limitation on characteristics, and its not without its challenges in terms
p56, lines 17-23, Ed Stearns, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am.pdf pp18-19, para 43, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-EdStearns.pdf 310 ibid 311 p36, lines 16-23, Catherine Llewellyn, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-21-March-2012.pdf 312 p37, line 2, Chief Constable Peter Vaughan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-21-March-2012.pdf 313 p37, lines 2-14, Chief Constable Peter Vaughan, ibid 314 p79, lines 19-21, Deputy Commissioner Craig Mackey, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Afternoon-Hearing-26-March-2012.pdf 315 pp79-80, lines 21-18, ibid
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of people going beyond how they should in terms of their interaction, but as a general principle, its here to stay and I think we have to embrace it. 2.163 Similarly, Jerry Kirkby, the Assistant Chief Constable of Surrey Police, recalled the positive use of social media by the force in relation to an armed siege at a bank in June 2010. The use of social media allowed for the receipt of information from the public, and allowed the force to directly communicate information to the public and the media.316 He said:317 I think social media is opening up massive opportunities for us for the way we engage and communicate with the public. I think in this instance it was complementary, predicting what will happen in the future. I think we are seeing greater use of social media by the public. Its a good means of communication. Twitter is an excellent means of actually getting fast time information out there, accurate information quickly. One of the interesting factors in this is not only did we communicate with the public; we were also actually communicating with the press on Twitter as well, in so much as they were picking up the comments and the feeds that we were putting out. 2.164 In relation to West Midlands Police, Chief Inspector Sally Seeley said:318 It is important to remember that there are officers and police staff within a range of roles across the Force putting information into the public domain on a regular basis which is followed by the media. For example, a response officer in Walsall has over 3000 followers on Twitter. He regularly tweets about his operational activity and writes blogs on subjects that interest him around policing, including current issues such as his experience of the impact of the Stephen Lawrence murder and the McPherson Report on policing. All officers are encouraged to follow Force social media guidance when engaging and informing via social media. This guidance directs them to consider the Force values, standards of professional behaviour and Force vision when engaging. This engagement is monitored by the Corporate Communications Department and is also monitored by local supervisors. The media perception is that social media accounts provide legitimate and quick access to officers. Whilst engaging freely with the public across social media account, officers and staff who use social media accounts are aware that any traditional media requests require engagement with the Corporate Communications Department. Our experience is that any approach by traditional media in relation to information passed on social media is referred very quickly to the Corporate Communications Department. 2.165 Roger Baker, one of Her Majestys Inspectors of Constabulary, offered the view that the police have been struggling to keep in front of the developing use of social media.319 He made the point that very few forces had what he would describe as: 320 robust policies around what you can and cannot do on social media sites such as
p33, lines 19-24, Assistant Chief Constable Jerry Kirkby, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-27-March-2012.pdf 317 p35, lines 7-19, ibid 318 p4, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Chief-InspectorSally-Seeley.pdf 319 p65, lines 1-3, HMI Roger Baker, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf 320 p65, lines 6-11 ibid
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Facebook, Twitter, et cetera.321 Mr Baker went on to say that Im not against any of these sites, there are lots of positive aspects from the Police Service communicating with the public on these social networking sites to inform the public of issues in their areas that they would want legitimately to know about. However, he suggested that controls around its usage were very blurred particularly as between what is public in your professional life and what should be in the public domain.322 2.166 Andy Trotter, Chief Constable of British Transport Police and Chair of the ACPO Communications advisory group, recognised that there was a need for greater clarity in this area.323 However, he considered social media to be an excellent way of connecting with the public.324 He said:325 Police forces can communicate instantly and can receive feedback without the filtering process of newspapers, television and radio. Public confidence in the tabloids is not always high therefore the police need to continue to develop means of direct communication. While there have been instances of poor judgement by police officers when putting entries on Facebook such instances should not deter us from embracing the opportunities presented by the new world of social media. Many forces have made excellent use of new media in high profile murder investigations and during public disorder and there is a continuing growth in the use of new platforms. 2.167 The Police Service has sought to address these points in part through ACPOs Interim Guidance for Relationships with the Media. Its section on social networking stipulates that:326 Forces will have their own social networking policy or guidance but the same rules and ethos that apply for dealing with the traditional media also apply to the use of social networks like Facebook and Twitter. Social media channels can have benefits as a way to start conversations, build communities of interest, engage with the public and provide information. Professionally, Facebook can be useful to provide more information than Tweeting alone and photographs/video clips can be added. Police Officers and staff should be aware of the danger of material being used out of context. It is important to note that constraints apply even to the private use of Facebook by serving police officers and staff. Personal information that could impact on a police employees professional reputation or that of their police force should not be shared. Additionally, cases or work related issues should not be discussed on private accounts via Facebook, Linkedin or any other social media. 2.168 This is clearly sensible advice. There is no doubt that, if misused, social media can cause difficulties for the police. This could be through the behaviour of individual officers or members of police staff, or may in fact be caused by the actions of the public. Mr Stearns, for example, cited the problems caused to the police by the widespread public breach of a reporting restrictions order, through the use of social media, in the Baby P case.327 However, in the main I consider it to be a valuable tool for the police in communicating with the public,
p65, lines 3-6, ibid p65, lines 12-23 ibid 323 p13, para 14.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefConstable-Andrew-Trotter1.pdf 324 p13, para 14.3, ibid 325 p13, para 14.3, ibid 326 pp6-7, paras 9.1-9.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Submission-from-ACPOInterim-Guidance-for-relationships-with-the-Media.pdf 327 pp20-22, paras 48-55, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-EdStearns.pdf
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particularly to a younger audience. Importantly, it is also a method by which the police are able to communicate to the public directly, and not through the conduit of the media. It seems likely that this will be of increasing use to the police and public alike as the role of the traditional print media declines.
3. Entertainment: an overview
The principles
3.1 It is clear that on occasions the MPS, and police forces more generally, has offered hospitality to journalists and police officers and police staff have accepted hospitality in return from members of the media, some to a greater degree and on a more regular basis than others. The point should be made that the offer and acceptance of hospitality is not necessarily wrong, but must always be treated with caution (as the Police Service guidance in place has made clear). There are also bound to be entirely acceptable social and professional relationships between police officers and journalists. However, where those relationships create a perception of proximity or impropriety, real reputational damage can be done to the individuals concerned and the organisation as a whole. This section will first look at the existing guidelines which establish the principles and expectations of police officers and staff; and secondly, whether these principles were applied in practice. The Association of Chief Police Officers (ACPO) has recently produced interim guidelines which address the issues identified by both HMICs Without Fear or Favour report,328 and Elizabeth Filkins review into the relationship between the Metropolitan Police Service (MPS) and the media.329 The guidelines include advice on the approach to the acceptance of gifts and hospitality.330 These guidelines offer guidance to police officers and staff on the appropriate level of relationships, and professional conduct with the media in all forms. They specifically offer guidance for the interim, stating that they will be reviewed in light of both this Inquiry and the election results of Police and Crime Commissioners in November 2012.331 The ACPO interim guidelines include firm guidance which states that:332 It is essential to the standards of integrity demanded of the police service that police officers and staff should recognise and avoid or respond appropriately to potential conflicts of interest. These can be understood as situations where there may be competing obligations or interest to those who relate to the legitimate policing purpose for engaging with the media. 3.4 Specifically, in relation to the acceptance of hospitality, Section Four of the guidelines advise that any instances of personal relationships between a police officer or a member of staff, with a member of the media which exists outside of their professional policing role, should
3.2
3.3
HMIC Report - Without fear or favour a review of police relationships, published December 2011, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-without-fear-or-favour.pdf 329 Elizabeth Filkin Report - The ethical issues arising from the relationship between police and media, published January 2012, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf 330 p1, Association of Chief Police Officers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Letterfrom-ACPO.pdf 331 p4, para 1.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Submission-from-ACPO-InterimGuidance-for-relationships-with-the-Media.pdf 332 p5, para 4.1, ibid
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be disclosed and recorded under a force notifiable associate policy.333 The guidelines continue to advise that any gift of hospitality must be recorded in accordance with force policy.334 The guidance also sets out the duty of police officers and staff to report any practices of, or perceptions of corruption, which might include the acceptance of an improper level of hospitality.335 3.5 Reference was also made to the Home Office Guidance on police officer misconduct, unsatisfactory performance and attendance management procedures which was effective from December 2008. In relation to this issue it stated:336 Police officers never accept any gift or gratuity that could compromise their impartiality. During the course of their duties police officers may be offered hospitality (e.g. refreshments) and this may be acceptable as part of their role. However, police officers always consider carefully the motivation of the person offering a gift or gratuity of any type and the risk of becoming improperly beholden to a person or organisation. 3.6 The Rt Hon Alan Johnson MP, who served as Home Secretary between June 2009 and May 2012, offered a view as to the sufficiency of this guidance in light of recent events. He said: It seems to me to be sufficient you dont need guidance to know how to act properly and improperly, so I think that guidance, which I actually thought was much more recent, but it seems that it was 2008, is sensible. I never saw it in my period as Home Secretary. I wouldnt have expected to have read it. I would expect people to act with the professionalism that one expects both from police and politicians.337 However, in the absence of any central policy guidelines in relation to the acceptance of gifts and hospitality (prior to the recent interim guidelines published by ACPO), the MPS and, indeed individual forces, have generally sought to establish their own policies on this issue. The MPS have commented that:338 Whilst the level of guidance provided by these policies will differ from force to force, the MPS felt that given its size and scale of operations, a more precise policy was required to provide greater assistance to its staff. The Metropolitan Police Service 3.8 The overarching principles of the MPS policies and codes of practice are defined by the Nolan principles, established by the Nolan Committees first report on the Standards in Public Life.339 The MPS Special Notice 28/97 set out the following key principles in relation to the gifts and hospitality policy:340
3.7
p5, para 4.2, ibid p5, para 4.5, ibid 335 p6, para 4.6, ibid 336 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Alan-Johnson-MP. pdf; Home Office Guidance: Police Office Misconduct, Unsatisfactory Performance and Attendance Management Procedures, version 1.1, effective from December 2008. 337 pp75-76, lines 22-6, Alan Johnson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-22-May-2012.pdf 338 p118, para 6.9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Closing-Submission-for-Module-2from-MPS.pdf 339 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-25-Summary-of-the-Nolan-Committees-firstreport-on-Standards-on-Public-Life.pdf 340 p115, para 6.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Closing-Submission-for-Module-2from-MPS.pdf
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(a)
Gifts or offers of hospitality must be refused if there could be any doubt about the propriety of accepting them. If a gift or hospitality is accepted, you must be able to justify it in terms of benefit to the public service If the refusal to accept [a gift] would cause embarrassment or offence, the gift should be accepted but sent to the Director of Procurement and Commercial Services with a covering report. Inexpensive hospitality offered in the normal course of duty, including attendance at community functions, consultative meetings, visits to youth clubs and schools and so on, may be accepted. It may be appropriate in some cases to accept the offer of a light working lunch (or very exceptionally a working dinner) but more substantial hospitality should normally be declined. If, exceptionally, it is considered appropriate to accept more substantial hospitality, authority must be given in writing by a senior officer All offers of gifts or hospitality (with certain limited exceptions) must be recorded in registers held by each business group within the MPS.
(b)
(c)
(d) 3.9
The Special Notice 28/97 introduced the formal registration of gifts and hospitality to the MPS.341 The policy outlined the requirement for recording any acceptances or rejection of gifts and hospitality in a hospitality register for scrutiny purposes.342 It set out the responsibility of the MPS unit heads to identify vulnerable posts, and to ensure that personal returns were submitted on an annual basis, including any nil returns. The policy also echoes the ACPO interim guidelines, reminding MPS officers and members of staff of their public duty to report any suspicion of, or abuse of the acceptance of hospitality to an individuals advantage.343 Since August 1997, the MPS have reviewed this policy on a regular basis by means of internal audit by the Metropolitan Police Authority (MPA),344 now reformed as the Mayors Office for Policing and Crime (MOPC), most recently conducted in August 2011,345 and resulting in a revised policy published in February 2012.346 The review of the existing policy led to the following conclusions made by the Corporate Governance Committee (CGC):347 Gifts and hospitality policy does not reflect appropriate professional and ethical standards and/or does not meet legislative requirements. Ill defined policy for dealing with offers of gifts or hospitality. Procedures are not aligned to the approved policy and/or are unclear. Staff and management are not made aware of the policy and procedures or subsequent changes.
3.10
http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-17-Special-Notice-28-97.pdf p7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-24-Notices-06-12-Policy-and-StandardOperating-Procedure.pdf 343 p8, Metropolitan Police Service, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-24-Notices06-12-Policy-and-Standard-Operating-Procedure.pdf 344 The internal audit of gifts and hospitality reviews governance arrangements in place which deal with offers of gifts and hospitality on the basis of a risk approach 345 p13, paras 50-51, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-JulieNorgrove.pdf 346 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-24-Notices-06-12-Policy-and-StandardOperating-Procedure.pdf 347 p17, lines 8-20, Julie Norgrove, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-29-March-2012.pdf
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Unauthorised acceptance of gifts and/or hospitality, lack of transparency, potential conflicts of interest, non-compliance, inaccurate supervision and review. 3.11 The key principles of the revised policy remain substantially the same, although amendments to the level of detail contained in the guidance were introduced, particularly in relation to what constitutes a light working lunch or other form of hospitality that can normally be accepted,348 as well as more clarity on the process of auditing hospitality records.349 The MPS stressed that the revised policy has made significant changes,350 although the policy is undergoing further review in light of the recommendations of the Filkin Report.351 Other regional forces and constabularies 3.12 Although there are common elements between each of the individual policies which exist in the regional forces and constabularies, it is evident that there is lack of a common framework. The policies generally outline the purpose of the policy, and detail key principles and standards which are associated with the policy. There is also a sense of promoting the common sense approach regarding the acceptance, declining and recording of gifts and hospitality. The remainder of the guidance includes: definitions of types of hospitality; the boundaries of acceptable behaviour of both officers and staff; as well as the expectations and responsibilities of individual police officers within that force, in respect of handling gifts and hospitality. The level of detail included in the definition of, and what constitutes, appropriate or inappropriate hospitality differ between forces and constabularies. Essex Police provide a very brief overview of what is considered as hospitality,352 quite similar to West Midlands Police.353 Staffordshire Police define the receipt of hospitality as:354 The acceptance of free or discounted entertainment, access, service, refreshment or alcohol from any person or body outside the police service and continues to detail a more comprehensive explanation of the potential types of hospitality which officers and staff might encounter.355 The Police Service of Northern Ireland (PSNI) also follow a similar approach, providing advice and exemplary situations when gifts or gratuities may or may not be received.356 Clear responsibilities are set out for individuals, the senior management team, District Commanders and Heads of Branches. 3.14 British Transport Police also provide guidance in relation to expectations and full responsibilities of: the individual, the line manager, the area and force headquarters department single point of contact (SPOC), and the Professional Standards Department Intelligence Unit (PSDIU).357
3.13
p116, para 6.4(a), Metropolitan Police Service, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/ Closing-Submission-for-Module-2-from-MPS.pdf 349 p115, para 6.4; p119, para 6.12, ibid 350 p118, para 6.9, ibid 351 Part G, Chapter 3, Section 10 352 p1,Roger Baker, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-RB1-to-ws-of-RogerBaker-21.02.12.pdf 353 p2, para 2.4, Chief Constable Chris Sims, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ExhibitCCCS18.pdf 354 p5, Chief Constable Mike Cunningham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ExhibitCCMC13.pdf 355 pp4-6, ibid 356 pp6-9, paras 3-9, Sir Hugh Orde, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-SHO5.pdf 357 pp4-5, paras 4.1-4.5, Chief Constable Andrew Trotter, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Exhibit-CCAT8.pdf
348
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There are exceptions in the acceptance of gratuity, for example, if it is considered to be of crucial benefit to BTP business interested, then this may be accepted provided the specific written authority of an [strategic command team] member has been obtained.358 Other forces, including the West Midlands Police, are less informative in this regard. 3.15 The principles of public perception and compliance to the Nolan Principles are also frequently cited in these policies, quite similar to the MPS, and set expectations of professional conduct of police officers and staff in relation to handling the acceptance of gifts and hospitality.359 The standard operating procedure of British Transport Police includes a requirement to this effect, which states that:360 All BTP employees should abide by the seven principles of public life in accordance with the Nolan Committee report. The seven principles are Selflessness, Integrity, Objectivity, Accountability, Openness, Honesty and Leadership. Hospitality records 3.16 Many of these policies also set a requirement for either (or both) the authorisation of the acceptance of a gift or hospitality, and the recording of whether these have been accepted or declined. The structure of these policies may also include formats such as a checklist of correct practices;361 thresholds in relation to the value of gifts which should be declared;362 as well as reference to document templates for officers and staff to complete the process of recording hospitality, which are later released for publication. The processes involved in maintaining these records are considered here in brief. The MPS requires all police officers and staff in receipt of hospitality or gifts, to declare these in a formal record which is published on an annual basis.363 This has been the practice since August 1997 and is a formally structured process through which officers and staff are obliged to follow.364 The MPS formal guidance specifies a timeframe of five days within which all gifts and hospitality (whether accepted or declined), must be reported to a line manager and entered in the Gifts and Hospitality Register using the Authorisation and Registration form.365 This is an electronic register which indexes all entries made by the responsible individual. The decision making process in relation to any gifts that are accepted lies with the appropriate ACPO level officer (or Director). Gifts that are received are estimated in value, and should the amount be greater than 25, the MPS practice is for these gifts to be sold and the proceeds donated to a charity at the choosing of the force. Any other gifts received below this amount
3.17
p8, para 9.2, ibid p3, para 3.3(c), Sir Hugh Orde, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-SHO5.pdf 360 p5, para 5.4, Chief Constable Andrew Trotter, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Exhibit-CCAT8.pdf 361 p2, Chief Constable Mike Cunningham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Exhibit-CCMC13.pdf; p5, para 13.4, Chief Constable Colin Port, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/04/Exhibit-CP71.pdf 362 p2, paras 3.1-3.6, Chief Constable Chris Sims, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Exhibit-CCCS18.pdf 363 p2, Metropolitan Police Service, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-17-SpecialNotice-28-97.pdf 364 p115, para 6.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Closing-Submission-for-Module-2from-MPS.pdf 365 p6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-24-Notices-06-12-Policy-and-StandardOperating-Procedure.pdf
359
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should be donated to a locally identified charity.366 Any hospitality that is offered by the MPS is also recorded in the same register. 3.18 The MPS retains hospitality records for a period of seven years, after which they are subject to removal from the MPS systems in line with the appropriate retention period.367 The guidance also provides an authorisation hierarchy for the purposes of scrutiny and review of all hospitality entries. This states that:368

3.19
The Deputy Mayor for Policing and Crime will review the registers of the Commissioner and Deputy Commissioner every month as part of the publication process; The Deputy Commissioner will review the registers of Management Board members every month as part of the publication process; Management Board members will review the registers of ACPO officers and Directors (Special Pay Grade SPG) they are responsible for every month as part of the publication process; ACPO Officers/Directors (SPG) will review the local B/OCU Registers for their portfolios every month as part of the publication process; The B/OCU Commander or Business Group lead will review their local B/OCU/ Business Group registers every month as part of the publication process.
Following this scrutiny exercise, the hospitality records of the MPS Management Board, ACPO and equivalent police staff, are published within 15 working days of the end of the month. The remainder of hospitality records of officers and staff below ACPO level are published within 20 working days of the end of the month. Systems are established by the Management Board members to ensure that officers and staff comply with this policy within their individual business groups.369 The Director of Audit, Risk and Assurance for the MOPC is responsible for the internal auditing for the MOPC and the Metropolitan Police Commission.370 The current Director, Julie Norgrove, has explained that the introduction of the Audit Commission Act has led to a change in the statutory approach of the MPS to auditing, and specifically that:371 in essence, the change meant that previously the Metropolitan Police was not an auditory body, it was the MPA itself, and thats why the audit service sat within that functionality. With the introduction of the Act, that has now changed and the Met is an auditory body, as is the MOPC, and therefore both are required to have an effective audit service.
3.20
ibid ibid 368 p7, ibid 369 p7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-24-Notices-06-12-Policy-and-StandardOperating-Procedure.pdf 370 p1, paras 1-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-JulieNorgrove.pdf 371 p2, lines 11-17, Julie Norgrove, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-29-March-2012.pdf
367
366
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3.21
By comparison, the regional forces and constabularies have less stringent structures in place. Avon and Somerset Police provide only very broad guidelines on the registration of hospitality that is received. The 2010 Procedural Guidance states that:372 Each department will keep and maintain a register of gifts and hospitality, both refused and received. Managers will review the record regularly (at least annually) to ensure the system works and to ensure the integrity of the process. The register will be available for inspection by a member of the Chief Officers Group (COG) at all times. The register for COG will be inspected by the Chief Constable, and the register for the Chief Constable will be inspected by the Police Authority. Aside from these guidelines, the policy does not go into any depth and is unclear in regards to the scrutiny process, the retention period or the publication of hospitality records. Durham Constabulary are equally as vague on the process of recording hospitality, providing only guidance to this effect, all lunches/hospitality offered by Contractors and Organisations will be recorded on a local register.373 West Midlands Police only comment on the form of gifts which should be recorded, that:374 all gifts of hospitality, given or received, above the value of 75 should be submitted to the Support Services Unit, Corporate Services Department along with form WG450 via the standards forms page of the intranet. The force directive provides no further guidance in regards to the process of publishing hospitality records.
3.22
G
3.23
Essex Police also provides a very general guideline, and does not set any precise requirements, nor does it specify any formal process for the publication of hospitality records. The policy states that for the protection of individuals, records should be kept locally of all accepted hospitality and gifts, other than token items.375 The guidance goes no further other than directing officers and staff to the relevant form which should be completed with the date, recipient and nature of the gift or hospitality that has been received. Staffordshire Police operates an internal, electronic database for the management of hospitality records and any gifts or gratuities that have been received by officers and staff. The guidelines are similarly broad in relation to the required timescale of the recording process, stating that records should be updated by the individual in receipt of the offer, as soon as is reasonably practicable.376 However there appears to be more attention within this guidance, than elsewhere, to the important requirement for an audit trail of such records in order to demonstrate that proper ethical standards have been observed.377 A more formal framework exists at the PSNI and British Transport Police. Hospitality registers at PSNI are maintained by the District Commanders and Heads of Branches for their respective areas, with the exception of any registers for members of the Senior Management Team, of
3.24
p6, paras 15.1-15.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-CP71.pdf p6, Chief Constable Jonathan Stoddart, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ExhibitCCJS9.pdf 374 p2, para 3.5, Chief Constable Chris Sims, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ExhibitCCCS18.pdf 375 p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-RB1-to-ws-of-Roger-Baker-21.02.12. pdf 376 p11, Chief Constable Mike Cunningham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ExhibitCCMC13.pdf 377 p10, ibid
373
372
836
which are maintained separately by a Command Secretariat.378 These records are maintained in both hard copy and an online register, which is completed with full details of the hospitality or gift as a minimum requirement. The registers are reviewed on a quarterly basis by the District Commanders and Heads of Branches to ensure that there are no breaches in staff conduct, although there is no indication that the hospitality records are published on a regular basis by the force.379 British Transport Police (BTP) specifically state that gifts and hospitality registers:380 will be published in accordance with the Freedom of Information 2009 Publication scheme adopted by BTP. [they] will be responsible for publishing the register disclosing gifts and hospitality received and declined by SCT members annually. The hospitality records of BTP are kept for a period of four financial years and contain entries of all gifts and hospitality that have been received which exceed the value of 15. Officers and staff have an obligation to declare these to the Area/Portfolio SPOC within the set timeframe of 28 days.381 The PSDIU are responsible for producing a comprehensive register of these declarations, which are then appropriately disclosed in the form of publication on the BTP website.382 3.25 The regional forces and constabularies recognise that hospitality records are subject to the Freedom of Information Act 2000. For this reason the hospitality records of senior officers are routinely published, normally on the force website or held by the relevant department in a detailed form, should a freedom of information request be made. The PSNI specifically note in their policy directive that:383 It must be remembered that all entries will be reviewed by ACCs/Heads of Departments or, in the case of members of the Senior Management Team, Internal Audit, and may also be subject to requests under the Freedom of Information Act 2000. As a result, information must be full enough so that it can be justified at a later date. If information is not full enough, the authorising officer should seek further information from the member of staff. 3.26 It is a safe assumption that the introduction of the ACPO interim guidelines will help to address this issue and foster the application of a universal guidance policy for both the MPS and all regional forces and constabularies. This will ensure greater clarity on the responsibilities of individual officers and staff, and most importantly define the appropriate expectations of handling hospitality and gifts, in particular, to set formal procedures in relation to the publication of hospitality records. In the following section, the practical applications of the current policies are considered, based on the evidence that the Inquiry has heard.
The reality
3.27 Given the real and understandable concern about the nature of the relationship between certain senior officers within the MPS and News International, and the media more generally,
pp10-11, Sir Hugh Orde, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-SHO5.pdf p11, para 13, ibid 380 p9, para 11.3, Chief Constable Andrew Trotter, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Exhibit-CCAT8.pdf 381 p6, paras 6.5, ibid 382 p7, para 6.6, ibid 383 p10, para 12.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-SHO5.pdf
379
378
837
the issue of hospitality as between the police and the press has been the subject of much scrutiny. I will address this general issue within this section. 3.28 In considering these matters, it is important to put them into their overall context. Sir Denis OConnor, formerly Her Majestys Chief Inspector of Constabulary, said that a review of force hospitality registers across England and Wales provided to HMIC for the last five years showed 9,500 entries, of which 298 (i.e. less than 3%) related to gratuities and hospitality accepted from the media.384 Even allowing for under-recording, the numbers therefore are small. However, that is certainly not to understate this issue given its potential impact in public confidence terms. HMICs report Without fear or favour a review of police relationships and Mrs Filkins report The Ethical Issues Arising from the Relationship between Police and Media both provide a very useful backdrop to this topic. When considering this issue, HMIC found that:385 While all forces and authorities have hospitality and gratuity policies, these vary significantly. Most seek to provide guidelines, but few provide sufficient clarity to staff on what is acceptable. Self-evidently, therefore, this is not an issue that was limited to the MPS. As the Home Secretary put it:386 in relation to the question of what are appropriate relationships between police officers and the media, I think this is a more general issue than simply the Metropolitan Police 3.30 Interestingly, HMIC also recorded that in the absence of clear rules or guidance on this issue:387 police officers and staff endeavour to define what should and should not be accepted based on their own concept of what is right and what is wrong and where the boundaries of appropriateness lie. There is sound evidence that in doing so junior staff understand the impact of their own decisions on the forces reputation. They looked to senior officers to lead by example, although in many cases felt that senior leadership was lacking. 3.31 Mrs Filkins report, although focused specifically on the MPS, identified very similar issues and can be read alongside HMICs report in terms of the key messages that they impart. More particularly, Mrs Filkin found that:388 many of those who spoke to me said that a culture had developed, at some senior levels in the organisation, which made it normal, and in some cases expected, that contact with the media would be close. In addition, hospitality which is now widely considered inappropriate was accepted. Mrs Filkin also recorded the opinion of some police officers and staff within the organisation
pp28-29, lines 8-1, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-12-March-2012.pdf 385 p12, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-withoutfear-or-favour.pdf 386 p66, lines 10-17, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-29-May-2012.pdf 387 p41, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-withoutfear-or-favour.pdf 388 pp19-20, para 3.2.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin. pdf
384
3.29
838
who felt that there appeared to be one rule for senior contact with the media and another for the rest of the organisation.389 She expanded on this point and said:390 Because the publication of the hospitality register and so forth, which had occurred for the first time shortly before the summer of last year, many of the police officers and staff that I interviewed were obviously highly shocked by the amount of hospitality that the senior people appeared to be receiving; either hospitality in the sorts of things of dinners and lunches and so forth at rather expensive restaurants, but also some of them were receiving very large numbers of tickets to very expensive sporting events, so there were a set of things which some senior people had been receiving, others had not, others had not accepted, and that was clear. But many, many of the lower ranks people, as I think one of the senior people who was quoted said I think his quote is that people were filling their boots, and that was a very view That was what people were telling me, that it was very much a senior issue. Not entirely a senior level people would say, well, people, yes, have drinks, people might be bought the odd meal and so forth at more junior levels, but it was very much in that period of time seen to be identified with certain members of the senior staff and management team. 3.32 These findings prompted Mrs Filkin to conclude that:391 There has been wide variation in how the senior team interpreted policy on dealing with the media and receiving gifts and hospitality. In some instances this interpretation is seen as inappropriate. There has been no clear standard set by the senior team for police officers and staff to use as a guide for their own behaviour and in some instances the standards set have been poor and have led to consequent damage. Mrs Filkin recommended that the MPS senior team:392 must signal a change in culture and set a consistent example for all staff on the ethical standards they expect, including how they relate to the media and the interpretation of the gifts and hospitality register. I would certainly endorse this finding. 3.33 Within the context of the corporate management of ethical issues, Mrs Filkin also made the point that:393 during my Inquiry members of the senior team acknowledged that there were significant differences of opinion about the need to develop close relationships with the media and the appropriateness of receiving extensive hospitality as part of it. The importance of collective standards on these issues was either not recognised by some of the senior team, or was of secondary importance in a culture where the value of independent decision-making at chief officer level is protected. The corporate management of the organisational risks in this area is, in my view, vitally important particularly in relation to a police forces senior team given the top-down leadership role they play in the setting of standards. This is an issue to which I will return.
pp20-21, para 3.2.3, ibid pp106-107, lines 2-3, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf 391 pp29-41, para 4.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf 392 p41, ibid 393 pp41-42, para 4.3, ibid
390 389
839
3.34
Commissioner Hogan-Howe certainly recognised the general points made by Mrs Filkin, and expressed his surprise at the extent and the frequency of the social interaction between certain senior officers within the MPS and the press.394 In my view, the importance of example setting in this area cannot be understated. The Home Secretary reinforced this point when she said:395 one of the themes that actually comes out of some of the reports that have taken place, that one of the reasons why its necessary to put a clearer framework in place for everybody within each force is precisely because junior officers may see relationships developing and not understand that actually the nature of those relationships may be necessary because of the nature of the job that the senior officer is doing but may take another message from it.
3.35
It is undoubtedly the case that senior MPS officers had differing approaches to the issue of casual hospitality and what was considered by them to be acceptable in this context. It is true to say that all of the past Commissioners of the MPS who gave evidence had meetings over drinks or meals with journalists to a greater or lesser extent. The variance between Commissioners in relation to the frequency with which they engaged in this type of interaction with the media appeared to be due to a mix in personal style and the media climate in place at the time of their Commissionership. Lord Condon said that he rarely met with newspaper editors at restaurants or pubs, preferring instead to meet on police premises.396 However, he went on to say that:397 there were some editors I dont think they were being precious, but the demands on their time were such that it was clear that if you wanted to meet them, it had to be on their terms, at their office or at a restaurant. So over the course of seven years, on a small handful of occasions, I may have had the odd meal
3.36
3.37
More generally, Lord Condon said that he had preferred to keep journalists at a professional distance. He explained:398 I guess its a question of personal style and comfort zones and I think over the years, in policing and beyond, I think I understand the media, and I think whilst youre Commissioner, you have certain professional relationships and you make life more difficult for yourself if those professional relationships cross into friendships and a social life that goes with friendships. Im not saying that its intrinsically wrong or morally or ethically wrong to be friendly or to have a social relationship, but I knew where my comfort zone was, and I was more comfortable with it being on very much a professional basis. So I may be wrong, but I dont think I ever invited anyone from the media to my home address or I ever went to their home address.
3.38
A number of witnesses shared this general view. The former Deputy Commissioner of the MPS, Tim Godwin, for example, said that his contact with the media had been on a formal
pp5-6, lines 24-4, Commissioner Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-20-March-2012.pdf 395 p72, lines 6-15, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-29-May-2012.pdf 396 p27, lines 4-7, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 397 p27, lines 9-15, 398 pp31-32, lines 13-2, ibid
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basis, had not been conducted socially, and never over alcohol.399 Mr Godwins approach was borne out of a concern that the perception of a close relationship [with the media] in that way might actually be misinterpreted.400 Whilst again careful not to suggest that the alternative approach was necessarily intrinsically or ethically wrong, Mr Godwin felt that it was important for the MPS to maintain its constitutional separation from the media.401 Given that the line between the perception of impropriety and substantive wrongdoing can be so nuanced, as recent events have demonstrated, this point becomes all the more important. 3.39 Since leaving the Police Service, Lord Condons views on the potential dangers of hospitality have hardened. He offered the view that hospitality can be the start of a grooming process which leads to inappropriate and unethical behaviour.402 He explained that:403 since leaving the service I have gone on to work and deal with integrity in international sport, and dealing with integrity in the business community, and I think its just common sense that in any walk of life hospitality can be appropriate, can be sensible, can be necessary, can be ethical. But the other side of that, it can lead to inappropriate closeness and, in some cases, that can lead to criminal behaviour. Certainly in the sporting world I have investigated cases where initial hospitality to international sportsmen eventually led to criminal behaviour. 3.40 Lord Blairs evidence in relation to his social interaction with the media was similar in most respects to that of Lord Condon. He said that he:404 attended the CRA Christmas and summer drinks receptions on one or two occasions. I attended garden parties and the like hosted by newspapers. I would occasionally share a table with editors who were sponsoring public events, such as the Police Bravery Awards, organised by the Sun. On some relatively rare occasions I would have lunch with a journalist The only hospitality I offered to the media would have been the occasional tea or coffee. 3.41 Lord Stevens social contact with the media was more frequent. As has been described, this was part of a wider strategy to raise the morale and restore trust in the MPS.405 406 Lord Stevens described how he:407 worked hard to foster good relations with the media. This involved being available to speak with editors or journalists. I had lunches with the editors of all the national newspapers. Lord Stevens argued that that it would not have been possible for him to have fostered professional relationships with national newspaper editors without some form of hospitality.408
p53, lines 1-6, Tim Godwin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-7-March-2012.pdf 400 p53, lines 11-18, ibid 401 pp53-55, lines 21-7, ibid 402 p32, lines 6-8, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 403 p32, lines 11-22, ibid 404 p10, para 24, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Blair.pdf 405 pp9-10, para 29, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-LordStevens.pdf 406 Part G Chapter 2 407 p10, para 30, ibid 408 pp103-104, lines 19-4, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf
399
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He said:409 Some editors I saw in their offices and some editors I dealt with by way of phone on occasion. Specifically if I thought, you know, the stories they were putting out were wrong. But in a more relaxed this is the way they did business. And if you didnt do it that way, they probably wouldnt see you Certainly with Mr Dacre, we used to have lunch, but he used to have some of his premier journalists there, and I have to say, you didnt concentrate so much on what you were eating because you were held to task and you were taken through things, and quite rightly so. With Sir Max, it was probably more relaxed because it was sometimes on a one-to-one basis, but hes a man of immense knowledge and I have to say on occasions I learnt more from them than they learnt from me, I think. 3.42 Whilst he accepted that there was a risk of perception in meeting frequently with the media, particularly on a more social basis, Sir Paul Stephensons evidence was of a similar nature to that of Lord Stevens.410 Sir Paul argued that it was difficult to see how the Commissioner could do his or her job properly without a significant amount of media engagement at a senior level to counter the sometimes unbalanced coverage of the MPS.411 It is certainly apparent that there is increasingly a public facing dimension to the role of Commissioner, and Chief Constables more generally. I make the point elsewhere that there is a difficult balance to be struck in this area. Engagement with the media is an important part of the job for the reasons given above. However, great care must be taken to ensure that a perception of proximity is not formed, not only because of the obvious reputational damage that can be caused, but also because of the importance of providing an appropriate example to other ranks within the Police Service. It is also clear that a difference in approach to the issue existed at other senior ACPO ranks within the MPS. John Yates and Andy Hayman, both formerly Assistant Commissioners in the MPS, for example, appear to have accepted casual hospitality to a greater degree than their ACPO colleagues.412 I consider the evidence of Mr Yates and Mr Hayman later in this Chapter. Suffice it say at this stage, both examples provide an emphatic illustration of the point made above in relation to the reputational damage that can be caused should a perception of proximity be formed. Despite the self-evident risks, it is worthy of note in this context that other senior officers who took a different approach to their interaction with the media, saw no ethical difficulty in meeting with a journalist in a more social setting.413 Colin Port, Chief Constable of Avon and Somerset Police, went further by suggesting that it was not necessarily possible to discern what was acceptable from the nature of the hospitality. He said:414 I trust and rely upon the discretion of my staff. They make life-and-death decisions
pp103-104, lines 24-18, ibid p28, lines 2-3, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-5-March-2012.pdf 411 p28, lines 2-10, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-5-March-2012.pdf 412 pp1-16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-MPS-59-Andy-Hayman-meetingswith-the-Media.pdf; pp1-30, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-MPS-61-JohnYates-meetings-with-the-Media.pdf 413 p16, lines 14-19, Chief Constable Lynne Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-6-March-2012.pdf 414 p52, lines 6-10, Chief Constable Colin Port, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-27-March-2012.pdf
410 409
3.43
3.44
3.45
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day in and day out, and if I cant trust them to decide that a cup of coffee or a glass of wine or a pint of beer at the appropriate time is not appropriate, then Ive lost the plot. 3.46 3.47 Mr Port, however, went on to make the point that any hospitality received must pass a blush test as to what the public would consider to be acceptable.415 That being said, there was a general acceptance from those within the policing world that there were additional dangers engaged where meetings were conducted in a social environment. Lynne Owens, Chief Constable of Surrey Police, for example, said that:416 I think the challenge of a social setting is if you are in that environment and youre drinking alcohol, then there is perhaps an expectation that you will say some things that you wouldnt say in a more formalised setting Dick Fedorcio, formerly the Director of Public Affairs for MPS, who generally saw value in the utility of social interaction with the media, also agreed that alcohol could increase the risk of gossip or inappropriate commentary.417 3.48 From the perspective of the journalists that gave evidence, it is clear that their life blood is information, much of which is obtained by talking to those with a direct knowledge of the matters in which the journalist is interested at that time. It is often the case that this interaction is facilitated through face-to-face contact. A number of witnesses argued that the most socially acceptable way of achieving this was to engage over a meal or a drink. Mr Fedorcio, for example, said that given the practicalities of both professions:418 very often a lunchtime was seen as a good time by both parties to do it. On other occasions, it wasnt. A lot of crime reporters, for example, would spend time in court, so their hours were restricted between sort of morning and during the afternoon, so lunchtime was a break, or later in the day, evenings and so on. It varied in some ways. Some journalists didnt have that problem, they didnt attend court, they were happy to do it whatever time of the day you could fit them in the diary, but for others it was more of a practicality. 3.49 It appears that this form of interaction was commonly regarded as a reasonable bargain if the food or drink was purchased by the journalist. This is perhaps implicitly confirmed by the fact that the vast majority of journalists from whom I heard were permitted, to a greater or lesser extent, to claim for such expenses from their employers.419 Indeed, a number of witnesses made the point that this practice was commonplace, and emphasised that it was not just police officers who were the subject of casual hospitality from journalists. Sandra Laville, crime correspondent for the Guardian, argued that social interaction of this sort was:420 part of human relationships. I think if an officer has worked all day and takes time out from his family to come and meet me, I see nothing wrong with buying him a
p52, lines 16-21, ibid pp16-17, lines 24-3, Chief Constable Lynne Owens, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Afternoon-Hearing-6-March-2012.pdf 417 pp60-61, lines 1-24, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-13-March-2012.pdf 418 pp60-61, lines 17-8, ibid 419 p5, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sean-ONeill. pdf 420 pp28-29, lines 24-9, Sandra Laville, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-14-March-2012.pdf
416 415
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drink or having a meal with him. As long as its reasonable, as long as common sense is applied, I see it as part of normal human relationships, and journalists do it with every profession. They do it with doctors, they do it with trade union leaders, they do it with lawyers, they do it with pharmaceutical companies. You know, scientific reporters do it with scientists. 3.50 Ms Laville also spoke for most, if not all, of the journalists who gave evidence when she said the following in response to Lord Condons observation that hospitality could be the start of a grooming process. She said:421 I think its a very strong thing to say. I think, as Ive said, theres criminality and then theres legitimate journalistic activity, and socialising to a reasonable extent, using common sense, with police officers is not a grooming process. These people are grown-ups. Some of them make life or death decisions they deal with organised crime, they investigate rape. You know, the idea that me buying them a couple of beers or a meal is grooming them in any way is faintly ludicrous, to be honest. I dont agree with that. 3.51 The notion that it is reasonable and appropriate for police officers or police staff to meet with journalists and discuss issues with them over a light working lunch found favour with a number of witnesses. Anne Campbell, Head of Corporate Communications for Norfolk and Suffolk Constabularies, for example, said that:422 I think there has to be caution, but I actually think a lot of it falls into that area of common sense. I mean, journalists from time immemorial and I used to be a journalist are used to, I suppose, having drinks in bars and that would be one way of chatting to make relationships. Its probably moved on since then. I dont actually believe its acceptable to purchase alcohol, but I think for low level-level expenses or refreshments, then those expenses are justifiable because it is part and parcel of the role. How else would I be able to have fairly private conversations with senior members of the media to discuss the massive changes affecting the Police Service? 3.52 Deputy Commissioner Craig Mackey provided similar evidence. He suggested that the question was one of proportion and balance:423 It might be entirely appropriate over a working lunch to have a sandwich, a pizza or a cup of coffee, but actually outside the working day in other environments, you begin to get to the point where you have to question (a) your own values, but also why are you doing it? Why are you there? He also favoured was has previously been described as a blush test:424 it ought to be the sort of thing that when you write it in the hospitality register and it appears on the force Internet, youre entirely comfortable in terms of what youve done and why youve done it, and be very clear that there is a professional reason and basis on why youre accepting hospitality
p37, lines 5-16, ibid p48, lines 9-21, Anne Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-26-March-2012.pdf 423 p48, lines 5-11, Deputy Commissioner Craig Mackey, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Afternoon-Hearing-26-March-2012.pdf 424 p47, lines 12-21, ibid
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Ms Laville offered a view as to what should be considered acceptable and appropriate in this context. She argued that the offer of casual hospitality involving, for example, expensive meals and alcohol, fell within the ambit of the Bribery Act:425 I think if its not reasonable, if youre repeatedly taking an officer to the Savoy and throwing in a lap dancing club repeatedly, obviously thats not reasonable or common sense and it potentially is illegal, so theres your criminality. As to what she felt was a reasonable level of hospitality, Ms Laville said:426 theres a guideline at the Guardian that it should be no more than 40 to 45 for two people having a meal, but I mean sometimes it goes above that. Obviously we live in London. But, you know, reasonable amount.
3.54
A number of the journalists who gave evidence also argued that there was no link between the level of the casual hospitality offered and the amount or type of information received. Stephen Wright, the associate news editor of the Daily Mail, said that:427 whenever Ive had lunch or dinner with someone, theres no strings attached. I fully respect that. If they dont want to talk in an authorised wayIt would be completely inappropriate to lavish hospitality on a junior officer any officer, frankly. I dont think that is the issue at all, certainly not the way I operate, it would be completely inappropriate.
3.55
John Twomey, crime reporter at the Daily Express, made an associated point, by suggesting that the standard of the restaurant frequented was linked to the rank of the police officer concerned and the need for privacy, rather than as a method of obtaining more information.428 In relation to this issue more generally, Mr Twomey conceded that his working relationship with police officers could be done in a police station or at Scotland Yard, quite clearly429, however, he argued that it was a convivial and convenient and more comfortable way of meeting. But clearly you dont have to have the food and drink element.430 Despite conceding that there could be a question of perception in relation to interaction of this sort, Mr Twomey did not accept that the offer of casual hospitality was an inducement to the police officer concerned.431 He said:432 it does go on in a business world. It goes on in Parliament. Defence correspondents meet army officers in their clubs, in restaurants. It doesnt mean to say theyre knocking back 400 bottles of champagnetheres a tradition there, and I think they would expect it. They dont want to be stuck in Scotland Yard when they could be out in a comfortable placein surroundings with people they know and they can trustI dont think you should lose that. I thinktheres a question of flexibilityif new rules, should they be introduced, if theyre too strictit will make it more difficult for reporters like me to get access to information, to get access to officers. If you only
p37, lines 17-25, Sandra Laville, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-14-March-2012.pdf 426 p38, lines 1-11, ibid 427 pp21-22, lines 21-15, Stephen Wright, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-15-March-20121.pdf 428 p32, lines 3-16, John Twomey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-19-March-20121.pdf 429 p34, lines 8-22, ibid 430 p35, lines 10-13, ibid 431 p35, lines 10-20, ibid 432 pp35-37, lines 19-2, ibid
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can meet them in police stations or at Scotland YardI think they will probably be more likely to be toeing the party line, as it wereit would be a shame to lose that because it makes everything so formal and restricted. 3.56 It was also argued by some that this issue has become somewhat overstated. Michael Sullivan, crime editor at The Sun, made the point that:433 theres been a lot of mention in this Inquiry about long lunches and reporters or journalists entertaining lavishly, bottles of champagne. My experience actually is that those lunching and buying dinners have become an increasing rarity over the last few years, and that was really perhaps as Fleet Street sobered up or perhaps as the police became more professional with alcohol taken during working hours. The normal social setting would be in a pub, or possibly a wine bar, but more likely a pub, and it wouldnt be a case of the reporter handing over a credit card behind the bar and lets go and drink as much as possible. It would be a case of the journalist buying a round of drinks and the police officer buying a round of drinks in those social settings 3.57 The general evidence of the police forces outside of London was that casual hospitality was conducted at a limited level. The Chief Constable of South Wales Police, Peter Vaughan, for example, told the Inquiry that he would meet the media for the purposes of interviews or press conferences.434 In addition to these meetings, he has also attended charity fundraisers, where the media were present, as well as sporting events within the force area. Mr Vaughan provided an example where he was invited to a rugby match by Media Wales, which was also attended by a Welsh government minister, as well as another key individual from Welsh society. He explained that:435 it was deemed as an opportunity to go along to meet people in a social surrounding that wasnt necessarily a formal office environment, and to step on them, to develop some sort of relationship rather than retrench and dig myself in.
He told the Inquiry that is had been an opportunity for him to address the issues that were affecting the force at that time:436 it felt right at that moment from the inaccuracy being reported by the Police Review it just presented itself as an opportunity then to start to put the record straight. 3.58 Mr Vaughan went on to explain that the meetings were fully documented in the Force Media Register.437 Hospitality recorded included the provision of drinks or refreshments by the media.438 Catherine Llewellyn, a press officer for South Wales Police, told the Inquiry that there had not been an occasion where any hospitality has been accepted or offered to the
p51, lines 1-19, Michael Sullivan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-15-March-2012.pdf 434 pp6-7, paras 19-20, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefConstable-Peter-Vaughan.pdf 435 p14, lines 4-8, Chief Constable Peter Vaughan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-21-March-2012.pdf 436 p14, lines 15-22, ibid 437 p14, lines 15-22, ibid 438 pp7-8, para 22, ibid
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media on her behalf.439 Typically, meetings which took place between the force and the media were conducted in the offices of South Wales Police, or Media Wales.440 3.59 The editor of the South Wales Echo, Timothy Gordon described the relatively minimal level of contact between himself and officers of South Wales Police. He has said that the majority of contact is made by the reporters of his title. He has told the Inquiry that the other titles of Media Wales Limited, publishers of the South Wales Echo, including the Western Mail and Wales on Sunday, also have infrequent contact with the local force. Describing one example of a meeting he attended in March 2011 with the Chief Constable and Deputy Chief Constable of South Wales Police, the editor in chief of the Western Mail, and the editor of Wales on Sunday, Mr Gordon told the Inquiry that:441 There was no hospitality at the meeting, which was held at the Media Wales offices, beyond a cup of tea/coffee/glass of water being offered. Mr Vaughan also noted in his evidence that this meeting was deliberately arranged after lunch, as he told the Inquiry that he does not dine socially with editors or journalists, and has not been invited to any lunches or dinners of this kind.442 Mr Gordon asserted that as editor of the South Wales Echo, he has never accepted any hospitality from the local force, as far as he could recall, with the exception of a cup of tea may have been the offer of a biscuit.443 3.60 Abigail Ashford, the crime correspondence for the South Wales Echo, echoed the absence of any culture of accepting hospitality from the local force. Ms Ashford explained just one occasion where she attended a Cardiff v Swansea football game, at no expense, whilst shadowing the Inspector of South Wales Police. The purpose of this exercise was to report on how the local force policed the event.444 She said that the extent of hospitality that was offered was a sandwich and a cup of tea from their own catering, but I also bought food for myself.445 Ms Ashford could not recall any other occasions where she had received hospitality from South Wales Police. Chris Sims, Chief Constable of West Midlands Police, told the Inquiry that he would meet occasionally with editors of the local papers, but not very often. He stressed the absence of a culture of hospitality between the force and the local media, stating that there are very few occasions that the force have accepted hospitality from the media, and specifically, that he has never accepted any.446 Mr Sims referred to only one occasion in 2005, where a number of West Midlands Police officers attended a local football match, courtesy of a local newspaper title, which had included the invitations to other prominent figures within the community.447
3.61
p18, lines 12-15, Catherine Llewellyn, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-21-March-2012.pdf; pp14-15, paras 42-44, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Witness-Statement-of-Catherine-Llewellyn.pdf 440 p16, lines 9-20, Chief Constable Peter Vaughn, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-21-March-2012.pdf 441 p3, paras 7-8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-TimothyGordon.pdf 442 p16, lines 7-16, Chief Constable Peter Vaughn, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-21-March-2012.pdf 443 p9, lines 14-20, Timothy Gordon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-20-March-2012.pdf 444 p5, para 16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Abigail-Alfordtaken-as-read.pdf 445 p8, para 29, ibid 446 p6, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefConstable-Chris-Sims.pdf 447 p6, para 23, ibid
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With the exception of this event, he could not recall any other instances where the force had accepted offers of hospitality from the local press, other than the acceptance of refreshments or drinks.448 3.62 Chief Inspector Sally Seeley, told the Inquiry that she was not aware of any instances where there had been an acceptance of hospitality from the media by any of the ACPO rank members of the force. However, Ms Seeley recognised the necessity of building effective relationships with the media and said that:449 Clearly it would be counterproductive to create an environment where all invitations of hospitality were refused and that would be at odds with the accepted norms of society. Acceptable hospitality falls within these norms and I believe include accepting a drink or some light refreshments having regard for the time, duration and context of the engagement. 3.63 Mr Sims told the Inquiry that West Midlands Police no longer provide a Christmas Reception for the local press, which had previously been held at West Midlands Police Headquarters up until 2007.450 Since this change, the exchange of hospitality has been minimal, other than the offers of simple refreshments accompanying meetings between officers and the media. Adrian Faber, editor of the Express & Star in Wolverhampton, attested to this view, stating that his title have not been offered (or indeed accepted) any hospitality from West Midlands Police.451 Mr Faber has explained the basic level of hospitality offered by his title would be in the form of lunches which would take place at the newspapers offices. These lunches had taken place with the previous Chief Constable and senior officers of West Midlands Police. He also explained that a corporate hospitality arrangement existed between the Express & Star with Wolverhampton Wanderers and West Bromwich Albion local football clubs, whereby match tickets have often been offered to police officers, but are not exclusively sought for this purpose.452 Mr Faber told the Inquiry that [we] regularly take contacts and advertisers to local football matches453 and that he has not taken any police officer since [2009] as tickets have been used by other people in the company.454 This, as well as the titles annual Local Heroes Awards, is the only form of hospitality that the Express & Star would offer to West Midlands Police. The hospitality would consist of a meal, drinks and in the case of the football matches, the value of the ticket for watching the game. Mr Fabers crime reporters have also informally met with police officers over a drink, as a way of discussing their work, but such an offer is not considered to be a reward for information.455 In his evidence to the Inquiry, he emphasised that youre able to have
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ibid pp11-12, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefInspector-Sally-Seeley.pdf 450 p4, para 9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Chief-ConstableChris-Sims.pdf; p12, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-ofChief-Inspector-Sally-Seeley.pdf 451 p5, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Adrian-Faber. pdf 452 p6, para 10, ibid 453 p6, para 10, ibid 454 p6, para 10, ibid 455 p6, para 11, ibid
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a perfectly professional relationship [with the police] without elaborate entertainment or socialising.456 3.66 In summarising this issue, Commissioner Hogan-Howe said:457 theres no doubt that police officers and the press will meet on social occasions. The question is if the only reason for the meeting is around their social interaction and if complicated by alcohol, it seems to me there is a risk that in fact judgment is clouded and the relationship develops in another way. I suppose for the Police Service, it seems to be important to say that at least for appearances, but more fundamentally because of the way we should operate, because of the probity of the way we operate, we need to leave the perception that we are not tainted by being too close to any part of society. That can sometimes isolate us. So I think we have to make sure were not isolated, but I think at times that just by what might be seen by some as austere, provided we have a good professional relationship, provided were open about it and provided that therefore we can be held account, were probably [in] the right place. 3.67 ACPO have sought to address this issue through the issuing of revised national guidance on gifts, gratuities and hospitality (the guidance was implemented on 18 October 2012). The guidance provides police officers and police staff with a framework to determine the boundaries of acceptability regarding the receipt of gifts and hospitality.458 Importantly, given the variation in practice identified by HMIC, the guidance is to be used by forces to review and, where necessary, adapt existing policies and procedure for dealing with gifts, gratuities and hospitality.459 The guidance also reminds forces that they have a responsibility to ensure that their staff understand how the acceptance of gifts, gratuities or hospitality can undermine personal and professional integrity.460 The general principle underpinning the guidance is one of blanket non-acceptability, save for limited exceptions. The Home Secretary, for one, favoured this approach. She said:461 I think that is a sensible approach that has been taken by ACPO in an attempt obviously to find a greater consistency what is important is that they have the single force register but that everybody knows that there is a general belief that they should not be taking gifts, gratuities and hospitality except where, as it says there, of a more trivial nature. She also re-emphasised the importance of perception in this context:462 the expectation is officers should not put themselves in a position where people could feel that they were being influenced by the receipt of such gifts, gratuities or hospitality.
p30, lines 23-25, Adrian Faber, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-20-March-2012.pdf 457 pp16-17, lines 21-23, Commissioner Bernard Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-20-March-2012.pdf 458 p1, para 1.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/11/ACPO-Guidance-Gifts-ans-Hospitality. pdf 459 p1, para 1.1, ibid 460 p1, para 1.2, ibid 461 p14, lines 10-17, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-29-May-2012.pdf 462 pp14-15, lines 23-2, ibid
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The guidance sets out the circumstances in which hospitality may, or may not, be accepted. Given its relevance I reproduce it in full:463 Hospitality may be accepted if it:
extends to the impromptu provision of light refreshments during the course of policing duties is a conventional meal provided during the course of the working day by another police force or partner agency in either law enforcement or community safety
In either case, there should be no requirement to declare any such hospitality in the force register Hospitality may also be accepted if it is a conventional meal and is in accordance with the recipients duties such as:
attending a meeting, seminar or conference organised by an external body the annual dinner of a representative association or local authority which is limited to isolated or infrequent occasions and can be demonstrably in the interests of the force to attend
Such offers of hospitality should be declared in the force register Hospitality will not be acceptable if it:
amounts to regular free or discounted food or refreshments on duty, or off duty where the hospitality offered is made because the recipient is a police officer or member of police staff includes a degree of lavishness which is outside of the industry norm or is beyond any sense of common courtesy or reasonableness
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Such offers of hospitality should be declared in the force register. I would certainly endorse the key principles contained within this guidance. Without wanting to be overly prescriptive or puritanical on this issue, I think that it should more specifically spell out the dangers of consuming alcohol in a casual hospitality setting (without necessarily specifying a blanket ban); it also strikes me that the concept of an industry norm in this context may still allow for a variance in practice from force to force, and may tend to assume what needs to be established. However, I would certainly adopt in full the guidance provided to police officers (at all levels) and police staff in helping them to determine the boundaries of what is acceptable:464 Is it genuine? Is the offer made for reasons of genuine appreciation for something I have done? Why is the offer being made? What are the circumstances? Have I solicited this offer in any way or does the donor feel obliged to make this offer? Is it independent? Would the offer or acceptance be seen as reasonable in the eyes of the public? Would a reasonable bystander be confident I could remain impartial and independent in all of the circumstances?
p4, paras 2.21-2.26, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/11/ACPO-Guidance-Gifts-ansHospitality.pdf 464 p3, para 2.12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/11/ACPO-Guidance-Gifts-ansHospitality.pdf
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Is it free? Will I feel obliged to do something in return? How do I feel about the propriety of the offer? What are the donors expectations of me should I accept? Is it transparent? Would I be comfortable if my acceptance of this offer was transparent to colleagues, the force, and the public or if it was reported publicly? What could be the outcome for the force if this offer was accepted or declined. 3.71 It is also vital that transactional change in the form of new policies and guidance is aligned with real cultural change. As the evidence has made clear, leadership can be the key determining factor in this regard. Given this, it is important that a challenging and transparent environment exists within each force area so that staff at all levels (including Chief Officers) understand what is expected of them in terms of issues of integrity. Again, this is an issue to which I will return.
4. The perception of influence

4.1 Mr Jay provided the context to this section of the Report when he described some of the inherent risks engaged when individual members of two powerful institutions or groups of institutions, in this case the press and the police, come into contact. He said in the opening to Module 2:465 As so often happens in human affairs, the difference between healthy and dysfunctional behaviours does not have to be vast. By this, I mean at least two things: first, that it does not necessarily take many rotten apples to undermine the whole body politic, and secondly, that very often it does not take many adjustments in behaviours, objectively measured, to turn what is good into what is bad and vice versa. More precisely, the potential for abuse on both sides of this bilateral equation is significant, leading to the risk, if not the reality, of unhealthy, over-cosy and overly close relations between the two Ultimately, the vice here is lack of democratic accountability and the perception, if not the reality, of personal gain. The noun gain in this context needs, of course, to be broadly interpreted and should certainly be apt to accommodate the enhancement of an individuals professional or personal profile. 4.2 Lord Blair was of a similar view and he told the Inquiry:466 I believe that where that problem may have become significant is that a very small number of relatively senior officers increasingly became too close to journalists, not I believe for financial gain but for the enhancement of their reputation and for the sheer enjoyment of being in a position to share and divulge confidences. It is a siren song 4.3 This qualitative description of the issue at hand was supported by the findings contained within Mrs Filkins report The Ethical Issues Arising From The Relationship Between Police And Media.467 Mrs Filkin stated that it was the perception of the public and some journalists that unethical relationships between the media and the MPS had existed and caused harm.468 Furthermore, she recorded that:469
pp12-14, lines 11-12, Robert Jay QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/ lev270212am.pdf 466 p20, para 49, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Blair.pdf 467 p65, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf 468 p18, para 3.2, ibid 469 p19, para 3.2.2, ibid
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Many of those who spoke to me said that a culture had developed, at some senior levels in the organisation, which made it normal, and in some cases expected, that contact with the media would be close. 4.4 Assistant Commissioner Cressida Dick acknowledged that a perception had been created that some senior officers had developed overly close relationships with certain parts of the media. She said:470 I think it is certainly a perception. Theres no doubt about that, and this has clearly been discussed here and widely in the media. It is also the case that theres been very regular and close contact between some senior members of the Met. I should say I think all of these issues are not, of course, completely confined to the Met, but thats what were focusing on here. I think some of the contact had led to the perception. I cant tell whether its been overly close, but in terms of whether its been wrong or right, what I can say is that I think its been unfortunate that it has led to that perception, and I think for the future we will have to be clearer about the professional boundaries between us and members of the media. 4.5 Sir Hugh Orde, President of ACPO, expressed his surprise at some of the quite close relationships between individual chiefs and certain media outlets.471 In seeking to quantify the potential damage caused by this phenomenon, he suggested that:472 I think you should be concerned because it goes to the heart of the reputation of the service generally, so it is an important factor 4.6 Commissioner Hogan-Howe recognised the fundamental importance of this point and said:473 because of the probity of the way we operate, we need to leave the perception that we are not tainted by being too close to any part of society
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The reputational harm that can be caused should the alternative be perceived is perhaps best illustrated by the allegation that the MPS deliberately did not pursue Operation Caryatid further, or reopen it in 2009 and 2010, because of the closeness of the relationship between some of its senior officers and News International (NI). This allegation was acknowledged by Commissioner Hogan-Howe who said:474 its left the perception, at least, which is maybe rebuttable but is an assumption which has to be challenged, which is that it may have influenced in some way the thoroughness of that investigation. And thats an unfortunate place to be for a police officer, to have to start addressing that before they explain why they did or didnt do something. It can be hard enough sometimes to explain why you did or didnt do something even when its a very straightforward case where there can be no allegation that there was bias involved, but where theres an establishment of some perception of bias, then it leaves a police officer in a difficult position if that investigation doesnt go as well as it should. There are many reasons we fail. We fail
pp20-21, lines 17-6, Assistant Commissioner Cressida Dick, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-12-March-2012.pdf 471 p100, lines 8-12, Sir Hugh Orde, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-hearing-28-March-2012.pdf 472 p 100, lines 13-16, ibid 473 p17, lines 5-8, Commissioner Bernard Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-20-March-2012.pdf 474 pp18-19, lines 19-12, ibid
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sometimes through negligence. We fail through error. We fail because we just didnt do our job properly. I think people can accept human error. What the except[ion] is that if thats contaminated by a perception of prejudice. 4.8 One of the key issues of concern identified by Mrs Filkin in her reports analysis of the relationship between the media and the MPS was the perception that the access provided to the media by the DPA had not been impartial. This, she said, was a view that had been expressed internally and externally.475 She concluded that the perception that access was provided unequally was:476 widespread and damaging, whatever the reality of its impact on the independence of decision making within the MPS and suggested that:477 some journalists felt very much cut out of the club, as it were. Some crime journalists feel that they havent been allowed into the Crime Reporters Association, and other journalists feel that because theyre seen as difficult I would say in many instances good at scrutinising that they were in the past given short shrift. If true, it might be said that the obvious corollary to this is that any journalist brought into the club would be less likely to write a critical piece of a particular police officer or perhaps a force as a whole. As to this, Mrs Filkin said:478 That would be the implication. How often that occurred, I dont know. 4.9 Mrs Filkin stated that the perception around inequality of access appeared to have grown as a result of a particular style of leadership within the DPA and that this style legitimised informal contact lacking in transparency and allowed exclusionary practices to develop.479 Mrs Filkin developed this point by saying:480 the person who was the senior person in that department was said by a considerable number of people who spoke to me to have set that tone and that style within that department, and that made it clear that certain newspapers were favoured over others Mrs Filkins reference to certain newspapers was mainly481 aimed at the NI stable although she accepted that it may have been wider than that.482
Dick Fedorcio
4.10 The senior person referred to by Mrs Filkin in her evidence was the former Director of Public Affairs for the MPS, Dick Fedorcio. Mr Fedorcio recognised that it was important for the credibility of the DPA for that department to have been seen to serve all the media equally
pp45-46, para 4.6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf pp18-19, para 3.2.1, ibid 477 p4, lines 7-14, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf 478 p4, lines 19-20, ibid 479 pp45-46, para 4.6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf 480 p25, lines 7-14, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf 481 p25, lines 23-24, ibid 482 p25, lines 23-24, ibid
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475
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and impartially.483 He did not however accept that anyone had benefited through their relationships with me or any of my staff.484 The extent to which this may, or may not, have been true is tested throughout the remainder of this section of the report. Mr Fedorcio did accept in hindsight that, at the very least, a perception had been created that the relations of some senior officers within the MPS and the media had become too close. He said:485 I think at the time I didnt see it that way. When I look at it now, in view of everything whats gone on, I would agree with that view. Whilst disputing the underlying fact, Mr Fedorcio also accepted Mrs Filkins observation that, at the very least, a perception had been created that certain organs of the press had been favoured over others, in particular NI titles. He said if she found that perception, then it exists.486 4.11 As to the reality, Mr Fedorcio argued that within the DPA there had been no preference for one newspaper over another and that the approach had been one of even-handedness. That being said, he did acknowledge that in respect of the printed media, contact had been skewed in favour of the tabloid press because generally speaking, they had been more interested in policing, as they were likely to obtain the sort of sensational stories they needed from the criminal justice system.487 By way of illustration, Mr Fedorcio suggested that the DPA had sought to avoid situations where a journalist, who may have had a friend in the MPS, was then given information to the detriment of other members of the press.488 Mr Fedorcio described how he sought to maintain an even-handed approach to media access:489 by an awareness amongst myself, the chief press officer, the deputy director, of all the activity that is going on across the department. So it would be an assessment. Not that theres anything recorded but it would be an assessment of: we think that over time everyone has had a fair share of access to whats going on.
4.12
The position described by Mr Fedorcio was generally supported by the diaries of Commissioners which showed that there had been a wide spread of meetings with various titles. Lord Blair, for example, stated that I think the spread of the meetings that are recorded indicate that it was pretty much across the board.490 However, Mr Fedorcio did concede that there had been no formal structure in place within the DPA to ensure that access for the press to the MPS was fair and equitable.491 That being the case, it is perhaps easy to see how a perception of enhanced access for some could have developed. Mr Fedorcio reported that such a system
pp23-24, para 123, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf 484 pp23-24, para 123, ibid 485 p90, lines 11-13, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-13-March-2012.pdf 486 p64, line 25, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 487 pp53-54, lines 6-1, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-13-March-2012.pdf 488 pp6-7, para 21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf 489 p68, lines 14-20, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-13-March-2012.pdf 490 p16, lines 24-25, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-MorningHearing-7-March-2012.pdf 491 pp56-57, lines 23-9, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-13-March-2012.pdf
483
854
was now in operation, and agreed that it had been a sensible step forward.492 I can only agree. Similarly, Mr Fedorcio stated that the DPA had not previously adjusted its relationship with journalists on the basis that there had been a perception that there had been too much contact in the past.493 4.13 The MPS had clearly recognised the risk of its senior officers being perceived as being too close to a particular media outlet and the potential damage that could be done to the reputation of the organisation as a result. Sir Paul Stephenson, then Deputy Commissioner of the MPS, asked Mr Fedorcio to draft a media relations policy for the MPS management board to guide their relationship with the media.494 The policy, entitled Management Board and the Media, was published in February 2008.495 Mr Fedorcio described the background to the document:496 I was asked to look at producing additional guidance for how management board themselves should operate, both as a reminder to the individuals, how we expect them to operate, and also to reinforce to them their responsibilities to make sure their staff are aware of the policy and followed it. 4.14 The policy instructed management board members to:497 avoid being too accessible to journalists in any way that could compromise their position or lead to accusations of favouring any particular media outlet or providing unauthorised information to them. Mr Fedorcio confirmed that the risk of a perception being formed that the DPA, or the MPS more generally, were favouring a particular media outlet had been on his radar for a number of months prior to the issuing of the new management board media policy.498 4.15 Given his position on the MPS management board,499 it could be argued in respect of Mr Fedorcio that this policy was not adhered to. Mr Fedorcio stated that to perform his role effectively, he was encouraged, by the then Commissioner Lord Stevens, to:500 get out and network extensively with the media and meet with journalists to build positive and credible relationships for myself and the MPS. He suggested that the purpose of his networking was to have a wide range of contacts501 within the media with whom he would be in touch502 regularly. This networking activity included meeting with journalists who usually, but not exclusively, belonged to the Crime Reporters Association (CRA) at a bar close to Scotland Yard often following the Commissioners
p57, lines 2-9, ibid p68, lines 21-25, ibid 494 p72, lines 21-24, ibid 495 p64, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-DF1.pdf 496 p72, lines 15-20, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-13-March-2012.pdf 497 p64, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-DF1.pdf 498 p77, lines 2-7, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-13-March-2012.pdf 499 pp1-2, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf 500 p12, para 49, ibid 501 p86, lines 1-5, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-13-March-2012.pdf 502 p86, lines 4-5, ibid
493 492
855
regular CRA briefing sessions.503 As to the cast list of the journalists attending these informal networking sessions, Mr Fedorcio said:504 It would vary. It would vary, depending on attendance at the briefing in the first place and the availability of the people afterwards to do that. I mean, some had to disappear, but there were, I dont know, normally maybe half a dozen upwards who would attend. 4.16 Given the length of his tenure with the MPS,505 Mr Fedorcio accepted that over time he had inevitably506 got to know the journalists with whom he had been meeting regularly on a rolling basis, a number of which he had been seeing for years although, as he pointed out, there would also have been changes of face during this time. Various journalists have retired or moved on to other specialisms and new ones have come in.507 Despite the enduring nature of some of his relationships with individual journalists, he stated that they were all work-related professional contacts508 and that no personal friendships had resulted from his extensive networking activities. On this he said, I have no personal contact with any of the journalists that Ive dealt with in my time at the Metropolitan Police.509 This may indeed have been true from Mr Fedorcios point of view, although it is easy to see how the opposite perception may have been formed, not least by those with whom he was interacting. Michael Sullivan, crime reporter for The Sun, for example, suggested that he considered himself to have been part of Mr Fedorcios inner circle of favoured journalists. He said:510 I would probably say I was, sir, yes. If favoured journalists? I dont know that that was that wouldnt necessarily tell the whole story, sir. I think Dick, if I can call him that since hes a friend as well as professional contact, over a period of time you get to know someone well and therefore you would normally expect to perhaps have more contact with that person, not just Dick, but with plenty of others, rather than someone arriving say, for instance, another newspaper has appointed a crime reporter. In the same way that I didnt know Mike Brammett(?) or Sarah Cullum, because I was an inexperienced reporter at the time, there would perhaps be reporters arriving or being made crime reporters who would then take it does take a number of years to build up a good working relationship, so I think that would favour is perhaps not totally applicable but perhaps I would regard myself as part of a group of longserving crime reporters who would have been in a circle of trusted journalists for Mr Fedorcio to talk to.
4.17
p86, lines 13-17, ibid; p12, para 53, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/WitnessStatement-of-Dick-Fedorcio.pdf 504 p86, lines 21-25, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-13-March-2012.pdf 505 p1, para 1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Dick-Fedorcio. pdf 506 p87, line 6, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-MorningHearing-13-March-2012.pdf 507 p87, lines 1-11, ibid 508 p86, line 7, ibid 509 p86, lines 10-12, ibid 510 pp45-46, lines 12-6, Michael Sullivan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-15-March-2012.pdf
503
856
4.18
This notion of a favoured grouping or inner circle of journalists would appear to have been recognised by other members of the press reporting on the MPS at the time. Jeff Edwards, former Chairman of the CRA and currently its President, said:511 I wouldnt like to use the word favourites, but I think there were people he had more contact with than with others. Again, I dont necessarily think you can draw any conclusions from that, but I think there were as I said, I think that there were possibly some organisations, for instance News International, possibly Associated Newspapers, that I think he was more keen to engage with than others.
4.19
Similarly, Ms Laville said:512 I think there was something of an inner circle that was created, but to my perception that was more about the length of time certain individuals had been covering crime and they had built relationships over many years; in fact, you know, seven or eight years, and they knew each other very well. But, yes, there was certainly at times a perception that you would have a briefing and then maybe another briefing with a smaller group of people would go on, but, you know, then you negotiate that and you make sure you get in the smaller briefing. I mean, thats what journalists do. Its our job to go to the source of the information and find it out it never struck me as anything dodgy, it just struck me as these people were good at their jobs and, you know, theyd managed to make a very good contact over many years.
4.20
Although Ms Laville was careful not to suggest that Mr Fedorcio, or the DPA more generally, had in fact favoured certain news organisations with enhanced access or through the provision of information, she did agree that it would be unhealthy for such a perception to exist.513 There was certainly a lack of transparency as to the level and nature of Mr Fedorcios interaction with the media. He acknowledged, for example, that the MPS gifts and hospitality register did not record the occasions where he had met with journalists for drinks at a wine bar.514 It is also true to say that most of his more social interaction with the media was conducted on a one-to-one basis.515 The hospitality that was recorded within the MPS gifts and hospitality register is worthy of some more detailed analysis. In assessing the period between 2003 and 2008, for example, a distinct pattern emerges. In the year 2003, Mr Fedorcio went on accompanied hospitality visits to seven different newspapers, with The Sun and the NoTW being the only newspapers that were visited twice.516 He also met with journalists from a total of seven different newspapers for individual lunches. Mr Fedorcio met with Lucy Panton of the NoTW on three occasions, and therefore more than any other individual journalist. He also met with Andy Coulson, then editor of the NoTW, on a separate occasion, taking the total number of lunches with NoTW journalists to four. This equalled the total number of his interactions with the Evening Standard, the other leader in terms of his contact with individual titles for the year in question.517
4.21
p2, lines 1-8, Jeff Edwards, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-14-March-2012.pdf 512 p26, lines 3-18, Sandra Laville, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-14-March-2012.pdf 513 p27, lines 14-23, ibid 514 p106, lines 9-13, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-13-March-2012.pdf 515 p113, lines 1-5, ibid 516 p113, lines 11-16, ibid 517 pp113-114, lines 17-14, ibid
511
857
4.22
Taking the remaining years in turn, Mr Fedorcio met with the NoTW most often in 2004; the same was also true in 2005 and 2006. In 2007, several newspapers came in equally, with Mr Fedorcio meeting with the NoTW, The Sun, the Express (through John Twomey, in his capacity as a senior member of the CRA), and the Evening Standard on an identical number of occasions. Finally in 2008, Mr Fedorcio met with The Sun most often.518 Mr Fedorcio accepted that the record of his interaction with the media for the period in question accorded with his recollection of events.519 In taking the level, but not at this stage the nature, of Mr Fedorcios contact with NI as a whole, it could be argued that there was a rational basis for it being skewed in their favour. Sir Paul Stephenson, for example, in analysing his own contact with the media, made the point that during his Commissionership, NI had some 42 per cent of the total United Kingdom newspaper readership.520 However, that reasoning does not necessarily explain the level of contact between Mr Fedorcio and the NoTW as an individual title within the NI stable, nor does it necessarily justify the nature and amount of the hospitality received. Mr Fedorcio accepted that there was a commonality in the journalists that appeared within the gifts and hospitality register namely Michael Sullivan, Stephen Wright, John Twomey and Lucy Panton.521 Mr Fedorcio attempted to explain this level of interaction with the individuals concerned by suggesting that:522 they were quite active in covering the Metropolitan Police, following lots of different angles and stories. They were often exploring whether you know, they were the sorts of stories that we would be interested in assisting them with.
4.23
4.24
4.25
That may well have been the case. However, I believe that Mr Fedorcios understanding of his role and remit as the Director of Public Affairs for the MPS became somewhat blurred over time, to the extent that a perception was created that he had become too close to certain journalists and particular news organisations. Mr Sullivan, for example, described how their reasonably close working relationship forged over many years523 meant that:524 on occasions he could be not necessarily open up with any great personal detail on anyone, but talk about his concerns, I suppose, and use me in some ways, as I used him, as sounding boards. The particular example given related to the difficulties with the media encountered by Lord Blair during his Commissionership.525
4.26
Perhaps a more egregious example was provided by Mr Fedorcio himself. It related to his interaction with Ms Panton, formerly crime editor for the NoTW.526 Mr Fedorcio described how on most weeks he would speak to Ms Panton on the telephone about the stories the newspaper was planning to run the following Sunday. This contact would sometimes involve a
p114, lines 1-10, ibid p114, lines 11-14, ibid 520 p12, para 33, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-PaulStephenson2.pdf 521 p1, lines 3-7, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 522 p1, lines 11-16, ibid 523 p41, line 22-23, Michael Sullivan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-15-March-2012.pdf 524 pp41-42, lines 23-2, ibid 525 p42, lines 2-7, ibid 526 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Lucy-Panton.pdf
519
518
858
one-to-one meeting late in the week, often on a Friday afternoon.527 On the specific occasion in question, which took place in his office at Scotland Yard, Mr Fedorcio recalled that Ms Panton had arrived for one of their regular end of week meetings: 528 with a story about the reception into prison of ex-Commander Ali Dizaei (in particular concerning his alleged refusal to hand over his suit to the prison staff). Mr Fedorcio suggested that Ms Panton was:529 being chased by telephone and/or text by her office to file this story, which they were expecting from her. To help her, and as she was under pressure, I offered to let her type the story, which she did from notes that she arrived with, in an e-mail on the stand-alone computer in my office. 4.27 Mr Fedorcio stated that he saw a copy of the story at the time that this incident took place.530 The story itself made reference to a prison source and insiders531, which may at least have suggested that The NoTW had a source within the prison providing them with the information Mr Fedorcio accepted that is possible,532 although Ms Panton denied it to be true; instead, she suggested that the information came from another journalist.533 Despite the uncertain provenance of the information contained within the article, Mr Fedorcio saw nothing in the story at the time to cause him concern, he said not from a Metropolitan Police perspective, but I think for Commander Dizaei it would have been embarrassing.534 Leaving aside for one moment whether it was appropriate for Mr Fedorcio to allow Ms Panton to use his computer to file a story, it might also be argued that the very nature of the article in question gives rise to a number of ethical considerations. As to this, Mr Fedorcio said:535 at the time, I recall thinking that I was helping someone who was being put under what I thought was quite unnecessary pressure, if not bullying, by her news desk, and you know, to help her solve her problem. In return, from my perspective, I felt I was going to get sight of a story which I may not otherwise have sight of until Sunday morning. At the time, I had no idea what was in it, but of course, it enabled me then to consider the impact of that on the Metropolitan Police, if at all. 4.29 For her part, Ms Panton described why the filing of the story was so urgent, even though the meeting with Mr Fedorcio took place on a Thursday afternoon and The NoTW did not go to press until Saturday evening:536
4.28
p17, lines 3-8, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-13-March-2012.pdf; p15, para 70, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Witness-Statement-of-Dick-Fedorcio.pdf 528 p17, lines 9-18, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-13-March-2012.pdf; pp15-16, para 74, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Witness-Statement-of-Dick-Fedorcio.pdf 529 pp15-16, para 74, ibid 530 pp17-18, lines 24-2, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 531 p66, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-DF1.pdf 532 p18, lines 13-17, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 533 p12, line 1, Lucy Panton, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am.pdf 534 p18, lines 7-8, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 535 pp18-19, lines 21-5, ibid 536 pp12-13, lines 22-11, Lucy Panton, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am. pdf
527
859
The what we call back of the book stories so those are stories that are not as explosive, exclusive, smaller stories would often be put to bed and put on a page on a Friday, and this would probably come into that category. Also, news editors would want to get their stories from their departments in the newspaper, so theyd want to go into conference in the morning knowing something about the story, as much as they could, to pitch it in conference In the olden days, I think people used to knock on doors, strangers, random residents, to use telephones when they were under pressure. I think on this occasion journalistic instinct took over and I did what it took to get the news desk off my back. 4.30 Ms Panton confirmed that once she had typed the story using Mr Fedorcios computer, she forwarded it to her own e-mail account, and using her Blackberry then forwarded it on to three individuals at the NoTW.537 Ms Pantons covering e-mail to The NoTW read as follows:538 Had 2 use dicks computer 2 file and cant seem 2 delete the original msg details. Would not be helpful 2 him for people 2 know I was using his office so pls delete that. Mfl. 4.31 Although Ms Panton asserted that it was not at his request,539 it is clear from her covering e-mail that she had formed the view that it would not be helpful for Mr Fedorcio for others to know that she had used his computer to draft and file a story. Given the perception this created, it is not difficult to understand why that might be the case. As to this, Ms Panton said:540 I wouldnt know who they were sending it on to. That was where I was concerned, and although Id just sent it to three people, when you file things it can go to any number of people within that office, who wouldnt necessarily understand who he was or the situation of why I was filing from there. 4.32
Mr Fedorcio stated that the computer used was a stand-alone machine and was not connected to the MPS computer system,541 that the e-mail concerned was not retained on his system, saying I deleted it almost immediately afterwards.542 He was also clear that Ms Panton had had no access to any of his files or documents in writing the story and that he was:543 keen to say to her that I wouldnt want anyone to think that I had been the source of the story, which I wasnt. She arrived with the notes on this when she came to see me. However, the fact is that, by allowing Ms Panton the use of his computer to draft and file the story, this was an entirely accurate assessment of the position in which Mr Fedorcio had placed himself.
4.33
537 538
Mr Fedorcio denied that this episode came as a result of his friendship with Ms Panton:544
pp13-14, lines 21-3, ibid p66, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-DF1.pdf 539 pp14-15, lines 24-1, Lucy Panton, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am. pdf 540 p14, lines 18-23, ibid 541 p21, lines 14-18, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-13-March-2012.pdf; p16, para 75, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Witness-Statement-of-Dick-Fedorcio.pdf 542 p21, lines 9-10, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 543 pp20-21, lines 25-3, ibid 544 p22, lines 1-4, ibid
860
I dont think it resulted from my friendship. As I said earlier, I think I would have considered doing it for anybody who was in that set of circumstances, but I accept it may have been an error of judgment. I can only agree with Mr Fedorcios assessment. Whatever his true motivation for allowing Ms Panton the use of his computer, and I am prepared to accept Mr Fedorcios explanation that it was done for purely benevolent reasons, this example did (and does) create a perception that an overly close and exclusive relationship existed between the two. This perception was heightened by the level and nature of some of the social interaction between the two.545 Whatever the reality of the relationship, and again I am prepared to accept that their interaction was fundamentally professional in nature, it was difficult for Mr Fedorcio to rebut the suggestion that over time he had become beholden to Ms Panton. The creation of this perception of influence, as we have seen, clearly had an impact on the publics confidence in the MPS, and the Police Service as a whole.
Links with News International

News of the World 4.34 Despite the apparently close relationship that existed between certain journalists employed by the NoTW and the MPS, it was suggested that in fact, the newspaper presented the DPA with more difficulties than other media outlets because of their sting operations. Mr Fedorcio said:546 The News of the World was one of the most challenging media outlets to deal with because of the nature and content of their coverage, propensity for sting operations and their reluctance to approach the MPS with questions or requests for operational support until the last minute on a Saturday. This was fuelled by a lack of trust and the fear that their exclusive story would be undermined by premature police intervention or leaked to another media outlet. From an MPS perspective this was not a satisfactory situation. For example, if we received a telephone call at mid-Saturday afternoon, just ahead of the deadline for Sunday newspapers, then there was little or no time to provide input or properly planned support or intervention. 4.35 Furthermore, Mr Fedorcio suggested that through his contact with the newspaper he had sought, over time, to:547 gain their confidence and trust to encourage them to work with us at a much earlier opportunity on their stories. It enabled me to make arrangements for timely access to relevant officers and put them on notice of what approaches we may be getting in due course. The positive effect of this can be seen in the case of the cricket match fixing story when the editor, Colin Myler, approached me at 6pm on a Friday evening, which gave us far more reasonable notice to put an effective policing plan in place the following day which ultimately led to successful prosecutions.
pp1-67, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Dick-Fedorcio-Gifts-and-Hospitalityregister.pdf; pp1-88, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/inner_view.pdfExhibit-MPS-60Dick-Fedorico-meetings-with-the-Media.pdf 546 p15, para 72, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf 547 p15, para 73, ibid
545
861
4.36
The occasional difficulties presented by the NoTW for the DPA would appear to have recognised by the newspaper itself. Mr Fedorcio recalled the DPA receiving a Christmas hamper in December 2003 from the then editor of the NoTW, Andy Coulson, which was shared amongst staff. The receipt of the hamper was recorded within the MPS gifts and hospitality register.548 Mr Fedorcio explained why the gift had been made:549 I think that it was a regular occurrence that the News of the World would come to the Metropolitan Police with a question about a story or stories they were running, at the last minute on a Saturday, and the Met was faced with either, in some cases, needing to put an operational response together, ie to find officers who may be able to respond to what they were putting to us, or we needed to find an answer to give them back again So I think that in the main, we managed to just about respond to them. It often led, I think, to the News of the World getting their story but the Met not getting its man, if I can put it that way. The lateness of them coming to us meant that operationally we werent able to secure the sort of intelligence or evidence that we would need to pursue if a crime was being committed
4.37
Mr Fedorcio explained that as well as seeking a response to sting type stories, the NoTW had also sought confirmation on facts relating to articles that they were planning to run:550 I think, like all papers, you may get a normal press Inquiry with: We understand the following; can you comment? That would have gone on in the normal run of things He also suggested that the NoTW, on occasions, published critical articles in relation to police officers:551 I can point to a case during the Damilola Taylor case where the News of the World ran a very nasty story about the police officer who had been selected as the media spokesperson for that case, and as a result of his status as the media spokesperson, he became a celebrity in their mind and was therefore fair game for them to look into his private life. They didnt pull punches.
G
4.38
Ms Panton explained that the NoTW frequently carried out high profile investigations, the fruits of which were very often handed over to the police.552 Despite this, Ms Panton argued that it did not place the newspaper in a special position in relation to the police. She said:553 I think my role was to try and make these sting operations run as smoothly as possible, and by having someone who was used to dealing with the police, I think the paper found it helpful and the police often did. She also argued that there was no preferential treatment by the MPS towards the NoTW.554
4.39
Despite this assertion, there is no doubt that a very damaging perception was created that the NoTW exercised an inappropriate level of influence over the MPS. The appearance of
p13, para 60, ibid pp107-108, lines 17-10, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-13-March-2012.pdf 550 p111, lines 7-10, ibid 551 p112, lines 16-23, ibid 552 pp7-8, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Lucy-Panton. pdf 553 pp24-25, lines 22-2, Lucy Panton, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am. pdf 554 pp27-28, lines 25-3, ibid
549
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closeness or cosiness between some of the MPS senior officers and staff at the NoTW can be attributed to a number of factors. Elements of Mr Fedorcios interaction with Ms Panton, for example (and in contradistinction to the argument made by her above), give rise to the perception that the newspaper was being given preferential treatment. This legitimate concern was underscored by the level of formality and frequency of some the contact that existed between certain individuals in the MPS and the NoTW. 4.40 Undoubtedly the most damaging allegation made against the MPS was that some of the relationships in question actually influenced operational decision making, and whilst I subsequently make clear that there is no evidence to suggest that was true, it is easy to see how such a perception was in fact created. By way of illustration, Mr Fedorcios social interaction with the NoTW continued whilst Operation Caryatid was taking place. He recalled, for example, meeting for lunch with the NoTW journalist Rebecca Mowley on 23 August 2006, just a few weeks after the arrest of Mr Mulcaire and Mr Goodman.555 Mr Fedorcio confirmed that he had been aware of the arrests on the day that they had taken place but denied that any discussion in relation to Operation Caryatid had taken place. He said:556 Not that I recall. I must admit, in all the interactions that Ive had with News of the World, I dont recall ever any discussion around phone hacking or those arrests. 4.41 However, it is not hard to see how an alternative conclusion might be formed, with Mr Fedorcio himself now candidly admitting that:557 I think, looking at it now, one would question that and one would question a whole series of interactions over the following months and years This is by no means the only example of this type, and in subsequent sections I analyse in more detail some of the specific relationships and instances of concern that helped to create the perception described. Neil Wallis 4.42 Neil Wallis was a central figure in the relationship between NI and the MPS. Mr Wallis joined The Sun as its Chief Investigative reporter in December 1986, and then progressed to be the features editor, news editor, associate editor and then deputy editor of the newspaper. In January 1998 he left The Sun to become editor of the People, and then in January 2003 he joined The NoTW as its deputy editor, a role he held until becoming the newspapers executive editor in early 2008. Mr Wallis resigned from the NoTW in June 2009.558 In describing the background to his contact with the MPS, Mr Wallis explained:559 The relationships which I forged over a number of years with the senior figures at New Scotland Yard were established by me in my capacity as an experienced journalist who I believe was respected by those I knew at the highest levels for my insight, knowledge and judgment over a range of issues which essentially fit under the discipline of public relations.
pp13-14, lines 22-16, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 556 p13, lines 18-21, ibid 557 p14, lines 18-20, ibid 558 pp1-2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-Neil-Wallis. pdf 559 p3, ibid
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Moreover, he suggested that the relationships referred to were built up on the back of his reputation as a journalist:560 I think the point being that it was a relationship built up not just at my time at the News of the World but before that at the people and before that at the Sun. 4.43 Mr Wallis asserted that his good working relationships with senior officers at New Scotland Yard dated back to the Commissionership of Lord Condon.561 He suggested that he had got on well with Lord Condon and explained that over the relevant period they had from time to time met in his office or on a handful of occasions for lunch or dinner.562 It is worth repeating in some detail the description provided by Mr Wallis of the nature of his conversations with Lord Condon:563 What would happen is we would meet, we would have conversations, Id give him my views, and if he found them interesting or if he found them useful, then I was glad. We talked on a number of issues. He had a number of issues going on at the time he was trying to do two things at the same time in the Met. He was trying to end to end tenure, which was a very important thing in the Met, whereby effectively an officer would get a job and it was pretty much theirs for life. At the same time, he was tackling serious issues of corruption, and he believed there was a parallel there may be a link between the two. He was in the midst of trying to bring an end to tenure, with the knock-on effect of helping disrupt corruption, and this was being met with a pretty strong dirty tricks campaign amongst certain elements of the police who didnt want it. He had particular problems, I remember, with the Flying Squad at I think it was called Rigg Approach or somewhere like that. So we would talk about those issues, and as a result of that, one of the things I said to him was: You should come out with it. You should tell London. You should tell Britain how big a problem this is, that its not just you sort of tinkering around for financial reasons, that there is a problem. So we did a very big set piece, exclusive interview, me on him, in his office, that was a splash and spread in the Sun, followed up BBC, Guardian et cetera, places like that, that spelt out the fact that they feared they had 2-300 corrupt officers in the Met and he was determined to root it out. And so it was a big PR campaign for him. He was setting his stall out to the nation but also to the corrupt officers and also to the sort of local government in London, to say, This is a big problem. It isnt minor tinkering, as its been led to suggest; it is serious. 4.44 Mr Wallis suggested that in giving his advice to Lord Condon I had an opinion how he could make something that was very important to him accessible to the Great British public,564 although he could not remember whether his advice was requested or provided on an unsolicited basis:565 I couldnt tell you how it came about He wouldnt talk about specifics ever, of
p73, lines 9-12, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of-MorningHearing-2-April-2012.pdf; p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-WitnessStatement-of-Neil-Wallis.pdf 561 p3, ibid 562 pp73-73, lines 23-9, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-2-April-2012.pdf 563 pp74-76, lines 13-1, ibid 564 p76, lines 6-8, ibid 565 p76, lines 11-20, ibid
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course, but he was talking to someone who represented the biggest daily newspaper in the country and then, later, the editor of another major circulation tabloid he was interested in my views. Chicken or egg, I have no idea. 4.45 Mr Wallis relationship with Lord Condon was not simply one way, and he explained what he was seeking to gain from this type of informal interaction:566 This was a sort of corporate/strategic relationship. It wasnt about trying to get a quick hit at a story. For instance, I think one of the things I mentioned elsewhere is the Police Bravery Awards. The Police Bravery Awards, which I happen to think is a great thing, got off the ground because of Sir Paul Condon. We, as the Sun, were a feisty, controversial organisation. We were quite happy to take a whack at anybody and we were seen in that way. We were trying to reach out to the police establishment, if you like, and to make them go along with an idea and it was going to be a struggle. Because of our relationship with Sir Paul, who realised that there may be more to us than simply the tabloid clich, he became willing to back it and said, Come what may, the Met will support this. I was then able to go to the head of the Police Federation, who also had a good trusting relationship with Sir Paul, and together, as a result of that, we were able to jointly go around the rest of the forces of Britain to say, Sir Paul and the Met are backing this. Why dont you? If you need to, have a conversation with the Met about why theyre backing it. And as a result, something is still going I think 14, 16 years later. 4.46 Mr Wallis agreed therefore that this was a long-term strategy on his part, and not one that would necessarily produce an immediate return in terms of stories or exclusives for his newspaper. He said:567 Now, lets be correct about it: if they sat there and said, Oh, incidentally, suchand-such a thing, do you want to know that or do you want that? then on occasions I daresay that might have happened. I dont remember any, but the relationship was about a strategic relationship. 4.47 This long-term strategy continued through his relationship with Lord Stevens. Mr Wallis told the Inquiry that he had first met Lord Stevens in his capacity as Deputy Commissioner of the MPS, having being introduced to him by Mr Fedorcio.568 He suggested that the relationship was fostered in much the same way as his relationship with Lord Condon had been:569 I mean, initially, but as time developed, it became a more active relationship than it did with Sir Paul Condon, but it would be over meals, phone calls, occasional drink. 4.48 Mr Wallis stated that through his contact with Lord Stevens he became aware of his intention to apply for the post of Commissioner of the MPS.570 Furthermore, he suggested that, in his view, Lord Stevens had been the best candidate of the candidates I was aware of,571 and
pp77-78, lines 17-14, ibid pp78-79, lines 20-1, ibid 568 p4, para 1(a), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-NeilWallis.pdf 569 p80, lines 4-7, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of-MorningHearing-2-April-2012.pdf 570 p4, para 1(a), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-NeilWallis.pdf 571 p80, lines 23-24, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-2-April-2012.pdf
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so had advised him throughout the application and interview process.572 As to how this had taken place, he said:573 In the same way as I talked about before with Sir Paul Condon, we would be talking, and if an issue came up, we would discuss it and I would give him my view. I had, it is fair to say, quite strong views about what was happening at the Met. I cared about the Met a lot. The MacPherson report was pretty catastrophic for the Met, and whoever succeeded Sir Paul Condon, it was going to be a very, very important appointment for the Met. As Joe Citizen, never mind as a journalist, I had quite strong views about it. 4.49 Mr Wallis candidly admitted that his support for Lord Stevens candidacy for the post of Commissioner had not been simple altruism on his part:574 What I knew about John Stevens was that he had a view about how police and press should interact. He had a strong view that was based, at least in part, on his experiences in Ireland which I knew a lot about, because Id served there his experiences in Northumbria which, again, I knew about because Ive lived there and also because of what we had seen with Sir Paul Condon, MacPherson, et cetera, et cetera, and the relationship between the press and the Metropolitan Police. He had a view that (a) I agreed with and (b) was also convenient for him and was also good for newspapers. So, if you like, the opposite of a perfect storm. A perfect sunburst. 4.50 Despite this convergence of views, Mr Wallis denied that he had enjoyed a fast-track to the office of the Commissioner:575 What happened was that this was a guy who was going for it. I gave him some input. He succeeded. I thought, Happy days, because this has worked out all right and hopefully there will be a better moving forward way for the media and the Metropolitan Police. That benefited my newspaper, so it was good all round. I similarly felt, at the time, that there was a better relationship we were working on, for instance, at the Home Office. All right? I didnt necessarily think that that was of instant benefit to me. I got on with Alastair Campbell. It wasnt just a benefit to me that you were able to talk to Alastair Campbell in the press, if you see what I mean. All Im saying is my life is not about the MPS. 4.51 Mr Wallis also stressed that throughout the period of Lord Stevens Commissionership he had not sought to influence his individual decision making process, rather it was a case of him asking me how certain options would be perceived by the general public.576 He said that his role of informal advisor to Lord Stevens grew like Topsy and continued throughout his time as the Commissioner over lunches, dinners and by telephone.577
p4, para 1(a), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-NeilWallis.pdf 573 p80, lines 11-20, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-2-April-2012.pdf 574 pp82-83, lines 16-4, ibid 575 pp83-84, lines 23-11, ibid 576 p6, para 1(a), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-NeilWallis.pdf 577 p81, lines 4-11, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of-MorningHearing-2-April-2012.pdf
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4.52
When dining or meeting for drinks, Mr Wallis stated that he:578 would pay the bill on each occasion which I would reclaim via an expenses claim, where appropriate, from News International from time to time, with the assistance of my PA. According to Mr Wallis, the level of contact varied depending on what was happening at the time so that it could be every week, every month, twice a day. It just varied.579 The advice offered was on an unpaid basis, with Mr Wallis suggesting that he:580 very much regarded it as part of my duties as the Deputy Editor of the News of the World to forge and maintain relations with senior police officers in the interests of my readership.
4.53
Despite his apparently frequent contact with Lord Stevens, Mr Wallis was clear that he saw no conflict between his role in reporting objectively about the police on the one hand, and his informal advice-giving role on the other. He said:581 you know, journalism and newspapers are like lawyers. You know they can be talking to someone and have a view, but it doesnt mean to say that they then dont have a different conversation with somebody else, you know, depending on which side hired you. So I would have a personal view and I would say to whoever I was talking to: I think this. If a hoofing great story came along that wasnt convenient to that, first and foremost Im a journalist and the hoofing great story went in the paper.
4.54
The long-term benefits of Mr Wallis enduring relationship with Lord Stevens and the MPS would appear to have manifested themselves in a number of different ways. Mr Wallis suggested, for example, that on occasions his conversations with Lord Stevens would lead to a specific story for his newspaper:582 If he wanted and I was interested because thats one of the other things that comes into this, of course. Lets be real. I worked for tabloid newspapers. Quite a lot of police policy, et cetera, et cetera, is simply not of interest to tabloid newspapers. Now, one of the things I would attempt to do was to find a way to make that accessible if it was relevant, but occasionally he might have a view about something that might make a story or a feature or whatever.
4.55
His evidence also suggested a degree of enhanced access to senior officers within the MPS. He said:583 One of the benefits of my relationship, without question, with senior police officers is that if I rang and it would always be via Dick Fedorcio, but if I rang one of them and said, We have this situation that we think the Met ought to get involved with,
p5, para 1(a), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-NeilWallis.pdf 579 p85, lines 7-11, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of-MorningHearing-2-April-2012.pdf 580 p6, para 1(a), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-NeilWallis.pdf 581 pp81-83, lines 24-9, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-2-April-2012.pdf 582 p86, lines 1-9, ibid 583 pp86-87, lines 21-3, ibid
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then they would take that seriously, because they know that Im a guy who is not going to mess them about 4.56 This may all hint at an inappropriately exclusive relationship. Certainly one can well understand why the fostering of such a relationship with the MPS would be of significant benefit to Mr Wallis and the newspapers for which he worked. His evidence rather hinted at this aim when he said of his relationship with Lord Stevens:584 Id rather hope he was more friendly to me than anybody else, but in honesty, I havent a clue. I mean, when you look at his hospitality register, as far as I can see, he wasnt mean in his charms, as it were. I know he got on very well, for instance, with Paul Dacre. 4.57 As to the reality, Lord Stevens described his relationship with Mr Wallis in these terms:585 It was totally professional. I never went to his house, he never came to mine or to my flat. It was all on a professional basis, and thats how I wanted it to be and thats how it was with all of the people involved in the press. Mr Wallis endorsed that description.586 4.58 With reference to his diary, Lord Stevens also commented on some of his social interaction with Mr Wallis. His diary recorded, for example, a meal with Mr Wallis at the Birdcage restaurant in January 2000. As to this, Lord Stevens said:587 I met Mr Wallis twice, with my wife and his wife, when we were working up the charity I was basically in charge of, which was Convoy 2000, to involve his wife. We met twice. He paid for the dinner once and I paid for the other dinner, but that didnt come to anything
4.59
His diary also recorded a lunch with Mr Wallis and Lord Waheed Alli in October 2000, and then subsequently a meeting at New Scotland Yard in November 2000 with the same two individuals. He described the purpose of those encounters:588 Neil Wallis was a friend of Lord Alli, Waheed Alli. I wanted Waheed Alli to be an adviser a group of about 12 or 14 people, and I wanted him to be one, to be advisors, to actually say what we were doing wrong, in particular what the Metropolitan Police was doing wrong, what I was doing wrong, and what we could do to right that. So there were two meetings with Lord Alli and he then agreed to be one of the advisers who I used to meet up with once every three to four months for dinner at Scotland Yard.
4.60
For his part, Mr Wallis suggested that this example provided an illustration of the benefits of his informal advisory role, given that his introduction of Lord Alli to Lord Stevens provided
p90, lines 2-6, ibid p81, lines 9-13, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 586 p4, para 1(a), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-NeilWallis.pdf 587 p76, lines 17-22, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 588 p78, lines 6-16, ibid
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the latter with a more diverse audience and pool of ideas than he had been accessing up to that point.589 4.61 Lord Stevens relationship with Mr Wallis continued beyond his tenure with the MPS. Shortly after his retirement in February 2005, Lord Stevens described how he decided to write a number of articles for the NoTW. This was part of a package which was negotiated around his autobiography, Not for the Faint Hearted, which was serialised in The Times and the NoTW.590 Lord Stevens said:591 I was approached by Lord Weidenfeld, who talked me into it. Other Commissioners had written autobiographies and I wanted to model my autobiography on Sir Robert Marks In the Office of Constable. Part of the deal was that that would be serialised in the News of the World and the Times and that was part of the package. The proceeds of that were going to go towards officers attending Northumbria University, where Im chancellor, who had not been to university, who did not have a degree or university education So that was the process. The question writing articles was part of the package that the book involved, and it was writing no more than seven articles in a year, which were police-related, and being paid 5,000 per article, which was a vast sum of money as far as I was concerned, but that, I was told, was the going rate, and Jeremy Lee of JLA, who was acting on my behalf in relation to these matters, dealt with that. 4.62 In respect of the NoTW serialisation, Lord Stevens was clear that Mr Wallis had nothing whatsoever to do with the contract itself, he said:592 that was dealt with by Mr [Kuttner], who was the managing director of the News of the World and the Times. So they were dealt with by separate people, and Neil Wallis wasnt involved in that. Lord Stevens was also clear that it was the publishers who arranged the particular titles where his articles would be serialised.593 4.63 The articles themselves went under the title The Chief.594 They were ghost-written and edited by Mr Wallis being based on major policing issues that arose during 2005-2006, such as the 7/7 bombings and the shooting of PC Sharon Beshenivsky.595 Lord Stevens said that in writing the articles he had been expressing a personal view on the matters at issue.596 He said:597 The theme was really about how difficult the policing task is in terms of what they do. I had the idea it might have been naively that no longer having the constraints
p7, para 1(a), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-NeilWallis.pdf 590 p16, para 46, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Stevens. pdf 591 pp93-94, lines 16-12, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 592 p94, lines 17-21, ibid 593 pp94-95, lines 22-1, ibid 594 pp16-17, para 47, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-LordStevens.pdf 595 pp16-17, para 47, ibid 596 p97, lines 10-12, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 597 pp96-97, lines 23-4, Lord Stevens, ibid
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of being Commissioner, I could talk about things in a far more open manner in terms of what the police do and the excellent work that they do in terms of terrorism 4.64 Although not involved in the contract negotiations, Mr Wallis confirmed that it was through his contact with Lord Stevens that the NoTW had first become aware that an autobiography was being written,598 and that furthermore, on receipt of that information, he had indicated to Lord Stevens that the NoTW would be very interested in serialising the book.599 Mr Wallis suggested that this, together with The Chief articles, were examples or by-products of his relationship with Lord Stevens, a relationship built up over a considerable period of time.600 Mr Wallis explained that he had chosen the subject matter for The Chief articles and:601 wrote them so that they would be a great read for the News of the World readers, that would gather interest from other media organisations and would be completely compatible with how he thought or what he believed. So it was, again, you know, a synthesis of coming together of interests. 4.65 Mr Wallis also elaborated on the editing process in these terms:602 ghosted articles in newspapers have been going for as long as Mr Caxton was here. It was a perfectly common thing and I wouldnt want you to think that I would just write a piece and lob it in the paper. What would happen was I would have a view, I would speak to John Stevens, we would work out the structure of the article, I would write the article, I would email it to him or fax it to him, he would come back to me and say, I like this, I dont want to do that, I want to change this, I would do it again, I would send it back to him, he would say, Okay, I would send it to the back bench, the back bench would subedit it, I would get the subediting version because plainly, youre going to write about 1,000 words which are going to come down to about 800 words, say. I would then check that I was happy with the subediting. I would send that back to John for his final say-so before it was put in the paper, including the headlines. 4.66 Lord Stevens terminated the contract with the NoTW in October 2007, explaining that he had had no further dealings with Mr Wallis or the newspaper since then.603 He said: 604 I didnt complete that contract because of the conviction that took place of the two people in the News of the World, and I saw Colin Myler and Neil Wallis and told them I didnt want to continue. I never gave them specific reasons, but from that night on, I never saw them again when the convictions were taking place, certain other information was coming to my ears which just I didnt just want to do it. 4.67 As to his original rationale for writing the articles, Lord Stevens suggested that: 605 It did not seem like an unusual step to take at the time and I was aware that countless
p32, lines 13-24, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-2-April-2012.pdf 599 pp32-33, lines 25-3, ibid 600 p33, lines 4-11, ibid 601 p33, lines 19-24, ibid 602 pp34-35, lines 12-5, ibid 603 pp16-17, para 47, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-LordStevens.pdf 604 pp95-96, lines 14-6, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 605 pp16-17, para 47, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-LordStevens.pdf
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politicians had done exactly the same thing. It gave me the opportunity to promote policing and talk about the difficulties MPS police officers and staff had to deal with. With respect to Lord Stevens, I am not sure that the roles of Commissioner and politician should be viewed as being particularly analogous in this context. Public confidence in the police is a critical element in the concept of policing by consent, and therefore there is a risk, and I put it no higher than that, that public media commentary on police matters by a former senior officer may undermine the authority of those presently in command and that may be contrary to the public interest. This is an important issue, and one to which I will return in greater detail later in this Section of the Report. 4.68 At least from Mr Wallis perspective, the articles under the banner The Chief would not appear to have been designed as a completely neutral, benign and objective commentary on the Police Service. As well as choosing the subject matter and ghost-writing the articles, Mr Wallis confirmed that he had also played a part in the naming of the column.606 Although Mr Wallis denied it to be true,607 it could certainly be argued that the title of the column was deliberately provocative. Mr Wallis himself suggested that Lord Blair, Commissioner of the MPS during the period that the articles appeared in the NoTW, had been unhappy that his predecessor was featuring in the column, he said:608 There was a bit of gossip about it. It had been around, may have even been in a gossip column. But when we actually met him I was trying to recollect how this happened, but one day he ended up in our office. I think he may have been visiting another newspaper and had been invited, if you like, by whoever was accompanying him, to do a tour of the building, and he ended up on our floor But he came in and it came up in conversation and he said, I dont know how you can call him the chief hes not the chief any more; I am, which was vaguely funny, I thought. 4.69 Mr Wallis conceded that Lord Blairs displeasure was not in the least bit surprising, and perhaps tellingly in this regard said mischief is a significant component of newspapers, particularly tabloid newspapers.609 In fairness to Lord Stevens, in hindsight, he recognised that this was a contract that he should not have entered into in the first place. He said:610 I think knowing what I do now, I certainly wouldnt have entered into it, and thats a fact. By terminated [sic] the contract with five more articles to write, I was throwing away money, but that didnt worry me. 4.70 As may now be obvious, the relationship between Mr Wallis and Lord Blair was in stark contrast to his interaction with the previous incumbents in the role of Commissioner, Lord Condon and Lord Stevens. Mr Wallis said of Lord Blair:611 I did not really know Ian Blair. He made absolutely no effort to forge any relationship with me or anyone else at the News of the World or to my knowledge any other mass market editor or deputy editor at the time on Fleet Street.
p95, lines 12-15, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-2-April-2012.pdf 607 p95, lines 16-20, ibid 608 pp94-95, lines 24-11, ibid 609 p95, lines 24-25, ibid 610 p97, lines 17-20, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 611 p7, para 1(b), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-NeilWallis.pdf
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It is of interest that, in describing his relationship with Lord Blair, Mr Wallis also suggested that:612 he took a different view from John Stevens. He decided that he wasnt interested in the views of either the tabloid or mid-market press. He was a very cerebral man. He saw himself very much as somebody who didnt want to pursue those sorts of contacts, so, you know, he didnt. 4.71 Mr Wallis analysis of Lord Blairs attitude towards the press would appear to have mandated their relationship. He went further by suggesting that Lord Blairs apparent failure to establish good relationships with senior editorial figures in the press was partly responsible for the generally negative coverage he received as Commissioner of the MPS.613 If true, this may inevitably lead the Commissioner of the day, or other senior police figures, to the conclusion that they must have a very open and receptive relationship with the media to ensure that the coverage of them personally, and their forces, is fair and balanced. Mr Wallis denied this to be the case, and said: 614 anybody who ever thinks they have a sort of free pass from the press is fooling themselves. Its a symbiotic relationship, but it is one that always can go both ways. So Ian Blair couldnt have rescued himself with the press simply by buying us drinks and being friendly. What he needed was some good advice to say, Look, this is an issue. This is what you need to do about the issue. If you got that wrong, dont be self-justifying about it. Face up to it. This is how you should face up to it. These are some PR leads, if you like. These are some attitudes you could strike. These are some things you could do to try to repair that damage. One of those, without doubt, would be sitting down with whether its Paul Dacre, Ian McGregor at the Telegraph, Andy Coulson or Colin Myler at the News of the World, and explaining to them where he was coming from, what his thoughts were, and taking their view about, you know, what he was doing that you know, in a way, newspapers have constituencies, you know? The Sun has a distinct constituency. So when its editor speaks, its telling you what the perception is the editors perception of what the constituency thinks. So what you can take out of it is if I want to reach out to that constituency, then I need to take this, that or the other into account. 4.72 There is an element of circularity to Mr Wallis argument and it is perhaps unsurprising that Sir Paul Stephenson said this when describing his approach to the media on becoming Commissioner of the MPS:615 It was quite clear that during my predecessors term of office, Sir Ian Blair, now Lord Blair, that there was a good deal of commentary in the media, and much of it negative. My belief was that that reflected quite poorly and unfairly on the Metropolitan Police Service and indeed on Sir Ian Blair, Lord Blair now, himself. Not only that; it was extremely distracting to senior officers, constantly having to deal with this sort of list of headlines, much of which I felt were unfair at the time, which actually distracted us from what should be the main purpose of the Met, which really is about doing the job were supposed to be doing on behalf of Londoners, and I came to a very strong view that what we needed to have in our relationship with the media
pp92-93, lines 24-4, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-2-April-2012.pdf 613 pp93-94, lines 25-9, ibid 614 pp100-101, lines 13-13, ibid 615 pp7-18, lines 12-5, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-5-March-2012.pdf
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is to try and effect the situation where the story was much more about what we do and less about who we were as senior officers, and that was something reflected to me when I met many junior officers when I took up office. 4.73 Sir Paul would appear to have succeeded from Mr Wallis perspective. The latter described his relationship with Sir Paul as following the same blueprint as my relationship with Sir John Stevens.616 The extent to which this may or may not have been true is analysed below. Although it is not something from which it is necessarily possible to draw any firm conclusions, it is certainly the case, as Mr Wallis himself confirmed, that the pattern of the relationship between the police and the newspapers for which Mr Wallis worked was generally one of convergence. He said: I think that it is absolutely true, that for many years I have been lucky enough to have my newspapers interest and the Metropolitan Polices interests on occasion converge to our mutual benefit 617 This is not of course to say that from time to time critical pieces were not written, as can be evidenced, for example, from some of the stories that appeared during Lord Blairs period as Commissioner.618 However, Mr Wallis agreed that the usual approach was one that tended to be pro-police:619 I think thats true. I worked for the Sun and then I went to edit the left of centre Sunday People, but its essentially a populist approach, really. Believe it or not, most people out there do support the police and the Army, and so it seemed to me that its very often that those interests converge. 4.75 Mr Wallis most enduring relationship with any of the senior figures at the MPS was Mr Fedorcio. Mr Fedorcio confirmed that they had known each other since 1997, having first met at a dinner in the December of that year in the presence of Lord Condon and Stuart Higgins, then Editor of The Sun.620 Mr Wallis explained that in Mr Fedorcios capacity as the MPS Director of Public Affairs, he would speak to him on the phone on a frequent basis, often with weekly frequency and he would meet him for dinner or a drink about six times every year.621 Mr Wallis suggested that he had enjoyed a good relationship with Mr Fedorcio, and that on occasions he had provided him with public-relations or media advice. He said:622 I remember two examples of that. Once, going back to a Condon era, when there was a bombing at Canary Wharf and I was editing the Sun at the time and there was going to be a press conference on the Sunday and I heard from our reporters when this was going to be, and it was I think something like a February. And I rank [sic] the press office and said, Look, the light is failing the most dramatic thing about this in your PR terms are going to be the amazing pictures, so bring it forward an hour, do the photo-shoot before you do the press conference, and then you will get a bigger show in all the newspapers.
p8, para 1(c), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-NeilWallis.pdf 617 p12, lines 2-5, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-2-April-2012.pdf 618 p79, lines 11-13; pp95-97, lines 24-13, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/ Transcript-of-Morning-Hearing-2-April-2012.pdf 619 p12, lines 10-15, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-2-April-2012.pdf 620 pp24-25, lines 22-3, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 621 p11, para 1(f), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-NeilWallis.pdf 622 pp13-14, lines 15-11, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-2-April-2012.pdf
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After the 7/7 bombings, I had a very similar conversation with Dick Fedorcio about getting footage or getting stills from inside the tunnels of where the explosions had been, because I knew that they would be the best pictures and I knew they would dominate all the front pages and therefore that what the Met would get was what it needed, was those harrowing images, and it was sort of giving Dick the support to be able to go on to whoever he needed to speak to to try to get those pictures and that footage, and it worked. 4.76 Taking the level of Mr Wallis apparent assistance to the MPS on public-relations and media matters as a whole, some might conclude that the Director of Public Affairs, and the MPS more generally, were not particularly competent in this area, and therefore for his own professional and strategic reasons, Mr Wallis was filling a gap. As to this, Mr Wallis said:623 Well, I contributed where I felt that it was worth contributing and it was up to them what they took out of it. Certainly it would appear once again that the advice provided by Mr Wallis to Mr Fedorcio was not simple altruism on his part. Their relationship would appear to have provided Mr Wallis with access to the very senior echelons of the MPS. By way of example, he said:624 I didnt really often want to speak to anybody, because that wasnt my sort of role, but certainly, for instance, I would go to Dick and say, Look, we are instituting the Police Bravery Awards. It would be a big help to us if John Stevens would agree to be on the judging panel, and so we got: Yes, thanks very much. 4.77 Mr Wallis also described a sting operation in which the NoTW were seeking to set up someone whom they believed to be a paedophile and had asked for Mr Fedorcios assistance, which he provided. He said: 625 I remember there was an occasion where we had a paedophile investigation and it had nothing to do with me, but for some reason and usually the Met are brilliant on these things, I have to stress but for some reason, on that Saturday we had this sting about to happen with a paedophile who thought he was going to pick up a 12-yearold girl and we werent getting any help locally. So what I would have done in that circumstance is ring Dick and say, Look, were about to do this. Were not getting any reaction from whoever it is weve spoken to. I think its worth it for the Met. And if he did or he didnt, then we did get the help on that situation and a man ended up in jail for trying to groom a 12-year-old child as a paedophile. 4.78 Despite the apparent closeness of Mr Wallis to some of the senior figures at the MPS, he said that:626 With the exception of the very occasional odd exclusive interview given to the News of the World by Sir Paul Condon and Sir John Stevens I was not provided with any information as a result of my relationship with these officers which they did not seek to be published. I was never provided with information from them which they were not authorised to divulge. In un-packing this statement, Mr Wallis acknowledged that at times he had been provided
p18, lines 23-25, ibid p15, lines 5-11, ibid 625 p16, lines 4-17, ibid 626 p14, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-NeilWallis.pdf
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with off-the-record information in the recognition that it would not be published save with the express agreement of the person providing it,627 and that this had taken place because, in his own words, we had a relationship of trust.628 4.79 The receipt of this background information enabled Mr Wallis to gain a better understanding of how the police worked, or as he put it I felt I was well briefed, yes, inasmuch as whatever they chose to brief me about.629 It might be argued that the receipt of this sometimes privileged information was the entire purpose of Mr Wallis carefully crafted relationships with a number of very senior police officers and staff. As to this, he said:630 Im a journalist. You know, journalists live or die by their contacts. I was a very senior journalist. I had good relationships with people that enabled us both to benefit out of it. And, yes, I nurtured those contacts because thats what journalists do. Incidentally, there is just one point you know, there seems to be almost a presumption that its somehow wrong, the idea that people like senior journalists should not have access to senior opinion-formers. Well, you know, I dont think I agree with that you could take the view that its actually quite important to a free press that people can you know, a senior journalist can sit down and have off-the-record conversations with a whole variety of people, whether they be judges, whether they be police officers, whether they be politicians. I have done all of those things. All of those three things Ive just said, I have done, and I think thats a pretty healthy way to look at the idea of a democracy and a free press, frankly. 4.80 Perhaps the most powerful illustration of what Mr Wallis described as his mutually beneficial relationship with the MPS was his procurement of the exclusive footage of what impact the shoe-bomb would have had if it had exploded in 2001.631 Andy Hayman, formerly ACSO within the MPS, recalled this example as being one that epitomises the relationship with the NoTW.632 He suggested that he had attended a meeting at the NoTW offices to:633 ask the newspaper to show on their internet site a reconstruction of what could have been achieved by the airline plotters in blowing up an aircraft. I was accompanied at this meeting by Dick Fedorcio, the Director of DPA. It led to the newspaper agreeing to put the reconstruction video on their website, allowing members of the public to access it. It was promoted within the body of an article which they ran inside the newspaper. 4.81 Mr Wallis recollection was that the idea came from him, not Mr Hayman. He said:634 I can recall on one occasion in late 2005 that I was instrumental in the release of footage which was broadcast on the News of the World website of the effect that the show bomb which failed to detonate would have had in the event of it being successful. I was persistent with my advice to Hayman that this footage would have
p19, lines 11-19, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-2-April-2012.pdf 628 p20, line 20, ibid 629 p21, lines 2-3, ibid 630 pp21-22, lines 7-1, ibid 631 pp10-11, para 1(e), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statementof-Neil-Wallis.pdf 632 p10, para 28, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-AndyHayman1.pdf 633 ibid 634 pp10-11, para 1(e), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statementof-Neil-Wallis.pdf
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a profound affect if released into the public domain as a result of which he provided to the News of the World. 4.82 This would also appear therefore to be an example of the nurturing of a contact by Mr Wallis, in this case, Mr Hayman. He explained:635 I think it is an example of how I had spent X number of months where I would talk and whatever with him about a variety of things. My crime reporter, Lucy Panton crime editor, Lucy Panton, I was talking to her one day about police issues, as I quite often would do if I was passing her desk. I would sit on it and chat, and she told me that Andy had mentioned to her this DVD, this video, because hed said something to her like: If only people could really see what damage a shoe bomb could do, because there was a little bit of not scepticism in the world, but: A shoe bomb? What could that do? So I said to her: Ask him if we can actually come and see it so we can see whether it would be worth producing. So he said yes, so we went to see it. It was staggering. I said to him: In my view, you really should put this out. Id like you to do it through us. He said, You could get some video grabs. I said, Yes, we could get some video grabs, but one of the things we could do is put it on our website put it openly on our website, and it will go viral worldwide. So he then thought about it for a few days, came in to see Andy Coulson, the editor, showed it to Andy Coulson, and we did all of those things and it went round the world and is being shown to this day. 4.83 Mr Wallis explained that it had not occurred to Mr Hayman that this was an exclusive or that he had thought:636 Oh, where can I place this? I know, Ill go to the News of the World. He mentioned it in passing to Lucy. Lucy then mentioned it in passing to me. I thought that would have two things: (a) it would be interesting for my newspaper, but (b) it was also a very good piece of PR for the Met.
Given the clear national public interest of this video, there is a question as to whether it was appropriate or sensible for it to have been offered by the MPS to one newspaper alone. However, Mr Wallis argued that:637 This was an asset they didnt know they had. It hadnt occurred to them that this was worth putting out. It was mentioned to me, so I went and pursued it and suggested to them that they release it to us. If I hadnt have made that pursuit, it would not have been released because it didnt occur to them. 4.84 Certainly no criticism can be levelled at Mr Wallis or his newspaper in this instance; he was simply utilising his carefully built relationship with the MPS to procure an exclusive story. I have already addressed the relationship of trust that exists between the police and the press elsewhere,638 an important part of which is the polices respect for exclusives, and Mr Wallis argued that the principle applied in this instance:639 This was not an asset that they saw as a PR asset. I, as a journalist, saw that I could turn it into a PR asset and therefore it was no different, I guess, than from me going to them and saying, We have a story about X or Y or Z, and them then putting
pp8-9, lines 2-1, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-2-April-2012.pdf 636 p9, lines 4-10, ibid 637 p10, lines 5-10, Neil Wallis, ibid 638 Part G Chapter 2 639 p10, lines 15-24, Neil Wallis, ibid
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it out to everybody. It wouldnt have been published in any way if it hadnt have been my newspapers idea. 4.85 It could be argued that this was qualitatively different from the hypothetical situation where the MPS, appreciating the importance to the public of such a video and its value to a particular newspaper, had offered it for exclusive publication. The line, however, is a very fine one. This example certainly adds to the perception that the NoTW, and NI more generally, were provided with more favourable access to police information. It again also points to an apparent gap in the media expertise of the DPA and the MPS, whose failure to recognise the potential importance in public interest terms of this footage was surprising to say the least. Ed Stearns, Head of Media for the renamed Directorate of Media and Communication, appeared to have recognised this point. He said:640 That was before my time in the directorate, but Id absolutely hope that if I was aware of that footage, that I would have thought about the possibility of putting it out into the public domain because it was something that might be of use to show the damage that that bomb may have caused, and its certainly something that I would like to consider in my role if that had come across my desk. Im not sure if the directorate knew with that footage, or at what stage they did, but certainly that would be something that I would at least consider and perhaps challenge officers on the possibility of getting that out there into the public domain. 4.86 This example would appear to have been another demonstration of the convergence in interests of the police and Mr Wallis, who said:641 The upshot of us publishing it was that video appeared in other newspapers, on television, and went around the world. It was a rather good idea We both won. That may have been true in this instance, but was this all simply part of a long term-strategy to place himself at the heart of the MPS? The following exchange with Mr Wallis was important in this regard:642 Q. If you were to stand back from all of this and you were to take into account the hospitality, all the phone calls with different commissioners and assistant commissioners, writing of these articles, would you agree that it might be said to be part of an over-arching strategy to place the News of the World in a special position with the Metropolitan Police Service? A. I think it is an example of how journalism worked well to our mutual benefit. Q. Thats a bit of a non-committal answer. I wouldnt want to flatter you too much, Mr Wallis, but if the implication is that youre rather good at your job in this respect, surely you would agree that thats what you were, in fact, trying to do: using your skills, all of your skills and weve heard the full range of them to achieve for the News of the World a special relationship with the Metropolitan Police Service? Although you may not like the sharp way in which that was put, thats what you were trying to do, wasnt it? A. In a way, but the problem is if I say yes, then it sounds too crude again. I mean, I was plainly, I am a journalist. My job is journalism and, yes, I work with people,
p37, lines 5-17, Ed Stearns, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am.pdf p11, lines 9-22, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-2-April-2012.pdf 642 pp35-36, lines 6-8, ibid
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but this relationship that lasted from 1998 through right, and with other people for different lengths of time worked because it was a good, balanced, trusting relationship that both sides felt they got stuff out of. 4.87 The fact that Mr Wallis was seeking to place himself in a special position with the MPS is unsurprising, given the obvious potential benefits to him and to the newspapers for which he worked. Those benefits, at the very least, would appear to have taken the form of privileged background information which aided Mr Wallis understanding of the MPS and helped to contribute to stories that appeared within his newspapers.643 The fact that Mr Wallis carefully built relationships with some of the most senior figures at the MPS is not something for which he should be criticised; many will argue that he was simply a very effective journalist. From the perspective of the MPS, however, and looking forward to the future, it should ensure that its relationship with the media, in general, and individual journalists in particular, is kept within appropriate bounds and completely transparent to all. Chamy Media Ltd 4.88 The relationship that Mr Wallis had with the MPS continued beyond his resignation from the NoTW in June 2009. The background to the use of Chamy Media Ltd by the MPS starts with the fact that, from spring 2009 onwards, Mr Fedorcio had been considering whether he needed to engage some external support due to the long term illness of his deputy director, who had been on sick leave since mid-February 2009.644 The issue was then formally raised during Mr Fedorcios appraisal process, he said:645 I remember some sort of previous interactions with the Commissioner during my internal appraisal. The Commissioner in there asked how I was coping wouldnt [sic] a deputy in place, whether I needed any additional support, and at that stage I said it was my aim not to do it, in the hope that he would return shortly. The issue arose again when I had the second stage of that appraisal with the Commissioner and the chairman of the police authority, and again it was my view that I would try and cope without the deputy. The trigger, I suppose, to act on this was that probably about the third week of August, my deputy found that the treatment had not been successful and was therefore now going to have to undergo further treatment, which gave us some quite serious concern about his health and the prospect of him ever returning. It was my decision that I would not want to take any pre-emptive action to replace him So my assessment was that I wasnt looking to replace my deputy, I was looking to find some support, second opinion, guidance, you know, a reference point, for some of things that I did, to make sure that I wasnt missing the sort of opportunities that might be around that I should do. So that led me then to think about what sort of resource I might take on within the sort of budget that I might have available within all of this, and came to the view there was a need for someone, but not for a lot of time, that I needed on a retainer basis so that I could access it if or when I felt I needed that support. 4.89 That decision having been taken, Mr Fedorcio took the view that he needed someone who had:646
pp19-21, lines 11-3, ibid pp16-17, para 78, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 645 pp30-31, lines 1-10, ibid 646 pp32-33, lines 21-1, ibid
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worked as an adviser at a senior level in an organisation, who had relevant media, speech-writing, public affairs experience, had knowledge, contacts, strong awareness of policing issues, and I wanted him to be available to give advice, possibly at short notice, which I thought was sort of reliable, credible advice. 4.90 In the meantime, and on leaving the NoTW, Mr Wallis had formed two companies; these were Neil Wallis Media Ltd and Chamy Media Ltd.647 Through Neil Wallis Media Ltd, Mr Wallis applied his trade as a freelance journalist selling tips and stories to news media organisations.648 Through Chamy Media Ltd he provided PR advice which could be described as in some cases sensitive due to the identity of the client for instance a number of senior politicians, also PR agencies and corporate bodies received my advice on PR matters through Chamy.649 Mr Wallis suggested that having told Mr Fedorcio that he was intending to leave the NoTW, he had been made aware that the MPS were looking to recruit someone to provide PR advice, and that furthermore:650 I believe I said to him that although I was leaving the News of the World if he wanted to continue to avail himself of my advice he was free to do so. I stated that this would be on a pro bono basis. 4.91 Mr Fedorcios recollection was that he had met with Mr Wallis for lunch on 12 August 2009, and it was there that Mr Wallis had told him of his new line of work as a media consultant and offered his services to me and the MPS.651 Mr Fedorcio explained that over the following few days he came to the conclusion that Mr Wallis met the selection criteria and would be available to start almost immediately.652 He then informed Sir Paul Stephenson, then Commissioner of the MPS, that he was considering engaging the services of Mr Wallis.653 As to whether Sir Paul had expressed a view on the potential appointment at that stage, Mr Fedorcio said: 654 He didnt express a view. I was having one of my regular meetings with him and we had a long list of things to talk about, and I think towards the end I just said to him: Ive considered your encouragement about finding some additional support, I think I now need to to [sic] it, and Ive had a look around and Im considering Neil Wallis. He didnt make any comment on Neil Wallis. I think he was just pleased that Id thought about taking on some support. 4.92 For his part, Sir Paul could not recall any discussion with Mr Fedorcio regarding Mr Wallis before he was recruited, although he was clear that:655 if Mr Wallis was coming out of that process as somebody who was either going
pp24, para 22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-ofNeil-Wallis.pdf 648 pp24, para 22, ibid 649 pp25, para 22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-ofNeil-Wallis.pdf 650 pp26, para 22(a), ibid 651 p17, para 81, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf 652 p17, para 81, ibid 653 p17, para 83, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf 654 p34, lines 16-24, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 655 pp54-55, lines 22-2, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-5-March-2012.pdf
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to be invited to tender or likely to get the job coming through a very proper process, I would not be discomforted by that because I had no reason to doubt sort of doubt that he wasnt a fit and proper person. 4.93 Mr Fedorcio recalled that he had also spoken to John Yates, formerly an Assistant Commissioner in the MPS, about the proposal to engage the services of Mr Wallis as:656 I knew he was expected to deliver a number of public speeches and presentations in his role and could make use of this support service. I thought he might also be prepared to co-finance the contract. Mr Yates confirmed that one or two meetings took place with Mr Fedorcio and Mr Wallis relating to potential work for Mr Wallis.657 4.94 Mr Fedorcio was aware that Mr Yates and Mr Wallis knew one another through work but did not understand them to have any significant contact outside of work.658 I examine Mr Yates relationship with Mr Wallis in much greater detail elsewhere.659 At this stage, it is sufficient to say that there is some debate as to Mr Fedorcios knowledge of the true extent of Mr Yates friendship with Mr Wallis. Mr Fedorcio suggested that had he been fully aware of the fact that the two had been good friends, then that would have affected his decision to seek Mr Yates advice on the potential appointment. He said:660 I would have sort of moved away from John Yates in terms of seeking his views on the appointment, the selection. I may have gone elsewhere, to one of his deputies 4.95 Moreover, Mr Fedorcio went as far to suggest that had he been fully cognisant of the nature of Mr Yates relationship with Mr Wallis, then he may have taken the view that it would have been inappropriate to hire Mr Wallis.661 Nevertheless, and having approached him for his view on the matter, Mr Fedorcio suggested that Mr Yates did not express enthusiasm for Mr Wallis, but rather:662 I dont think he expressed a view as to whether the person involved was better than anybody else. I think he was just prepared to take my view on who I should approach. 4.96 An added benefit for Mr Fedorcio in seeking the input of Mr Yates at this stage was that, as Assistant Commissioner Specialist Operations (ACSO), the latter had inherited responsibility for the phone hacking investigation.663 In those circumstances, Mr Fedorcio felt that Mr Yates was:664 well placed to advise me on any potential risks to the organisation if Neil Wallis
p17, para 83, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf 657 pp21-22, lines 3-1, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 658 pp17-18, para 84, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf 659 paragraphs 5.45-5.51 below 660 p35, lines 16-21, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 661 pp35-36, lines 22-1, ibid 662 p35, lines 4-10, ibid 663 pp17-18, para 84, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf 664 ibid
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was engaged by the MPS in view of the News of the World involvement in the phone hacking case. 4.97 It is arguable that the very fact that the potential risk had been recognised should have ruled out Mr Wallis from consideration for the role. Mr Fedorcio had certainly read the Guardian article of 9 July 2009 and was aware of the allegations made within it.665 Moreover, and despite Mr Yates press statement of 9 July 2009 following his establishment of the facts exercise,666 the story had not disappeared, with the MPS engaged in an ongoing debate with the Guardian.667 As to this point, Mr Fedorcio said:668 I dont think there had been anything new or different that the Guardian had pulled out in that period from the July story. It was reinforcement of that original story, rather than any new lines or direction. There was nothing going on within the Met to say, Do we need to have another look operationally at this? So, you know, I, in the same way, was not seeing any change that I needed to reflect. 4.98 Despite his apparent confidence that there was nothing of substance in the Guardian article of 9 July 2009 and the coverage beyond, Mr Fedorcio suggested that, absent the assurance that he subsequently received from Mr Yates, he would himself have raised the matter with Mr Wallis.669 Even with the added benefit of hindsight, I am afraid that this represents a failure on his part properly to recognise and heed the reputational risks to the MPS of engaging the services of Mr Wallis. As to the assurance referred to, Mr Yates spoke to Mr Wallis on 31 August 2009, and a note of the conversation was recorded in Mr Yates day book at the time. The note read:670 Wanted absolute assurance that there was nothing in the previous phone hacking matters still being reported and chased by Nick Davies that could embarrass him, me, the Commissioner or the Metropolitan Police Service. I received categorical assurances that this was the case. 4.99 One could certainly question the substance of such an assurance, particularly given Mr Yates role as a very senior police officer. It is only necessary to pose the question whether Mr Wallis could realistically have answered in any other way. Mr Yates, however, considered the assurance of value, and said:671 It was the proper assurances and the proper due diligence, as it were, is of course done through the normal channels of the procurement branch in the Met. It was a type of formal reassurance to me that there was nothing. I wanted to be doubly certain. I knew the rumours that were swilling around potentially, and I just wanted to be absolutely certain because I think it is me saying, Come on, Neil, is there anything, anything, anything, thats going to embarrass you, me or the Met in the future? I felt it was valuable. You know, it would if anything, it would put him off taking the job if he thought there was something, rather than say, Oh yes, lots to
p37, lines 19-23, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 666 Part E, Chapter 4 667 pp38-39, lines 8-7, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 668 p39, lines 8-15, ibid 669 p40, lines 7-14, ibid 670 pp21-21, para 67, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-JohnYates.pdf 671 pp39-40, lines 20-16, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf
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embarrass you. He might just say, Do you know what, I dont think its worth it, or something. So it was me sort of reinforcing those facts with him. 4.100 Mr Fedorcio explained that he subsequently came to the view that, on a professional basis, Mr Wallis fully met his requirements.672 Further, following the assurance obtained by Mr Yates, he felt that there were no reasons as to why he should not go ahead and discuss the possibility of engaging his services.673 He therefore arranged to meet with Mr Wallis to discuss a draft speech being prepared for the Commissioner as he was interested in hearing his views on how we could improve its content and presentation and generate positive media coverage.674 Mr Fedorcio explained:675 We met for lunch on 3 September 2009 and discussed the possibility of him providing strategic support to me and likely costs. He offered to do some work on the speech at no cost to demonstrate the sort of help he could provide. He proposed a considerable number of useful changes and re-writes. I was very impressed with what he had advised and felt that we should go ahead and seek to engage his services as soon as possible. 4.101 Mr Wallis understandably agreed with Mr Fedorcios assessment of his suitability for the role, as he put it I thought that I could do the job that they wanted doing, yes.676 Although in a different context, Mr Wallis explained that:677 Mr Fedorcio would know that I was a close associate of a number of senior figures past and present at New Scotland Yard including Commissioners, officers of other senior rank and civilians such as himself. This point was exemplified by Mr Wallis description of his input into the preparation of the Commissioners speech referred to above, he said:678
All I was doing there was continuing to do what Id done many times before for them I was simply continuing to do what Id done for years for them. Sometimes they asked me for my thoughts on things. In summary, Mr Wallis agreed that the relationship he had developed with the MPS was such that they would see the great value in employing him to fulfil this particular position.679 4.102 On 7 September 2009, Mr Fedorcio asked his staff to request a single tender process on the grounds of urgency for the period from then to the end of March 2010.680 Mr Fedorcio
p18, para 85, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf 673 p18, para 88, ibid 674 p18, para 88, ibid 675 p18, para 88, ibid 676 p39, lines 20-21, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-2-April-2012.pdf 677 pp26, para 22(c) and 22(d), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-WitnessStatement-of-Neil-Wallis.pdf 678 p40, lines 2-6, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-2-April-2012.pdf 679 p40, lines 13-18, ibid 680 pp18-19, para 89, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf
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agreed, therefore, that this was going to be a tendering process with only one applicant,681 however he explained:682 what happened and what I discovered, of course, is that they should have advised that that wouldnt have been possible at that stage. The procurement advice I was given was that this could be done in this manner. Subsequently they came back and said, No, we couldnt, but I think the advice should have been that in the first place. 4.103 Following the revised procurement advice, Mr Fedorcio informed Mr Wallis that he was unable to put a contract in place at that time but would be inviting him to submit a quotation, if he wished, as part of a competitive tender process.683 He explained that he took the decision to invite Peter Bingle, Charles Lewington and Mr Wallis to submit quotes by email,684 choosing Mr Bingle and Mr Lewington because:685 Theyre both people that Ive known for some time professionally, and in my selection criteria, they met it. In particular, both of them had previously been advisers to the Police Federation, so I was aware of their work for the Police Federation and their knowledge of policing matters. The invitation to quote sought strategic communication support and advice; Mr Fedorcio described this as taking the form of:686 verbal advice on the presentation of current policy matters in the areas of public affairs, media relations and speeches, mainly over the telephone but with occasional meetings. 4.104 Mr Bingle was employed by Bell Pottinger Private Public Relations, and Mr Lewington by Hanover.687 Some may argue therefore than the tendering process was immediately balanced in favour of Chamy Media Ltd in terms of the fees likely to be charged. Mr Fedorcio denied this to be the case, and said:688 Ive never had to let a contract like this, so this was new territory for me. My reference points, I suppose, were two in a way. One, I was aware of a colleague who had a daily contract with a London borough at a figure of about 800 a day, and the Met had a London PR agency working on property matters whose cost, depending on who did the work, varied between 125 and 250 an hour. So thats what my reference was. But I had no idea what either of them were going to pitch Bell Pottinger recommended one of their not their top people, one of their junior people to do the work I was of the view as I said, previously, Id been looking at potential suppliers. Id had a list in my mind, which included these two. It included a couple of others as possibilities, but I decided on these at the end of the day. I felt
pp41-42, lines 22-2, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 682 p42, lines 2-8, ibid 683 pp18-19, para 89, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf 684 pp18-19, para 89, ibid 685 p43, lines 19-24, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 686 pp18-19, para 89, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf 687 p44, lines 1-2, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 688 pp44-45, lines 6-7, ibid
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they could do what I was looking for. I knew of them, and I would trust any of them. I would have chosen any of them to do the work. 4.105 It was certainly the case that more could have been done to source PR companies of a comparable size to Chamy Media Ltd. Mr Fedorcio conceded this point,689 but said:690 There is such a place to go to, but I didnt go there, I knew Mr Bingle, I knew Mr Lewington, Ive known them for a number of years. I both felt that they were the sort of people that I would trust their judgment and their support. 4.106 Notwithstanding the above, Mr Fedorcio denied that the tender process had been set up to get a particular result, namely the engagement of Mr Wallis.691 He explained that he had received prompt responses to the tender and that the quote from Chamy Media Ltd had been considerably lower than the other two bids, by a factor of 50 per cent.692 Mr Fedorcio therefore arranged for a contract to be issued for the period 1 October 2009 to March 2010 with options for extensions.693 4.107 It was Mr Fedorcios evidence that Mr Wallis never had unescorted access to MPS premises, and the matters discussed or advised on were all matters of public record, either put there by the MPS or in the published or broadcast media. Furthermore, he suggested that Mr Wallis role did not cover any operational or investigative matters, and that he had no access to any MPS systems. Mr Fedorcio did not believe, therefore, that personal vetting was necessary, and the point was never raised by anyone else.694 He also explained that despite Mr Wallis expectation that he was not to be paid for the advice that he had provided in relation to the Commissioners speech in September 2009 given that it was effectively a trial for the role, a receipt for that work was requested and subsequently arrangements were made for him to be paid.695 Mr Fedorcio provided his rationale for the retrospective payment:696
I thought someone had done work for the Metropolitan Police, then the police should be prepared to pay them for it. I didnt think we should take a freebie I was of the view that I didnt think we should be in debt to or owing for that relationship. I thought it was quite reasonable that hed spent the time on it and that we should recognise that. 4.108 Once appointed to this temporary position, there was some question as to the transparency and internal visibility of Mr Wallis role within the DPA. Sara Cheesley, the senior information officer on the specialist operations press desk in the DPA, indicated that, on occasions, she would interact with the deputy director, ostensibly the role being filled by Mr Wallis, but had only become aware of the existence of Mr Wallis contract with the MPS in July 2011,
p50, lines 18-23, ibid p51, lines 2-6, ibid 691 p47, lines 16-20, ibid 692 p46, lines 4-7, ibid; pp18-19, para 89, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/WitnessStatement-of-Dick-Fedorcio.pdf 693 pp18-19, para 89, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf 694 p19, para 90, ibid 695 p19, para 91, ibid 696 pp48-49, lines 14-1, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf
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by which time the contract had been terminated.697 As to why she had not been aware, Ms Cheesley said:698 I really couldnt say why I wasnt told, but clearly the decision was that there was a strategic gap, which I wouldnt necessarily feel my role is for operational matters, and the decision obviously was not to make me or others aware. The fact that somebody of relative seniority within the DPA had not been aware of Mr Wallis recruitment is slightly odd in itself, and rather adds to the air of lack of transparency surrounding the way in which the contract was awarded and fulfilled. 4.109 Moving forward, on 14 July 2011, Mr Wallis was arrested as part of Operation Weeting.699 Mr Fedorcio explained that it was only on the day of his arrest that he first became aware that Mr Wallis was of interest to the MPS in relation to phone hacking and said:700 I discussed with the Commissioner how we should make public the details of the MPS contract with Chamy Media without compromising the phone hacking investigation or Mr Wallis. The Commissioner advised me that, because of my involvement in awarding the contract, I should not be involved in any decisions on this and it should be left to the deputy commissioner and my deputy director. 4.110 The details of Mr Wallis contract were leaked to the media during the course of the day of the arrest,701 and the following MPS press release was issued in relation to the use of Chamy Media:702 Chamy Media, owned by Neil Wallis, former Executive Editor of the News of the World, was appointed to provide strategic communication advice and support to the MPS, including advice on speech writing and PR activity, while the Mets Deputy Director of Public Affairs was on extended sick leave recovering from a serious illness. In line with MPS/MPA procurement procedures, three relevant companies were invited to provide costings for this service on the basis of two days per month. Chamy Media were appointed as they were significantly cheaper than the others. The contract ran from October 2009 until September 2010, when it was terminated by mutual consent. The Commissioner has made the Chair of the police authority aware of this contract. 4.111 With the benefit of hindsight, Sir Paul expressed regret that the MPS had entered into a contract with Mr Wallis and it is not difficult to understand why he took that view. He said: 703
p24, lines 6-20, Sara Cheesley, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-13-March-2012.pdf; p8, para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Witness-Statement-of-Sara-Cheesley.pdf 698 p25, lines 15-19, Sara Cheesley, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-13-March-2012.pdf 699 pp58-59, lines 22-3, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-5-March-2012.pdf 700 p19, para 93, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf 701 pp32-33, para 84, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-PaulStephenson2.pdf 702 pp7-8, para 16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-SaraCheesley.pdf 703 p60, lines 4-7, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-5-March-2012.pdf
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without any presumption of guilt or innocence around Mr Wallis current position, but quite clearly the hiring of Wallis played very, very badly in the way that the perception of this story was taken. 4.112 The perception referred to by Sir Paul was perhaps best illustrated by a statement made by Mr Wallis himself, when he said:704 I do recall at some stage reference being made that the Metropolitan Police Service would now be paying me for the service which I had been providing free of charge for many years. Whilst there was no evidence that Mr Wallis work for the MPS had any effect on operational decisions, whether in respect of the phone hacking investigation or any other case, a damaging perception was created that the contract awarded to Chamy Media Ltd was simply an extension of Mr Wallis carefully built relationship with the MPS. This was a relationship which appeared to be overly close; and one which created a perception of influence. 4.113 In respect of Mr Fedorcio, a perception was also clearly created that his long standing relationship with Mr Wallis had influenced the appointment process. There is no evidence to suggest that the process itself, once instituted, was not conducted fairly, but whatever its adequacy, the fact remained that there was an appearance of bias, particularly given that Mr Wallis had already completed work for the MPS. On 29 March 2012, the Independent Police Complaints Commission (IPCC) announced that Mr Fedorcio had a case to answer upon gross misconduct charges for offering a contract to Chamy Media Ltd following which Mr Fedorcio resigned.705 In light of the IPCCs investigation report into this matter, I do not intend to address this issue any further.706
The recruitment by the MPS of Neil Wallis daughter707
4.114 On 27 January 2009 Mr Wallis, then Executive Editor of the NoTW, sent an email to Mr Yates with the CV of his daughter attached. Mr Wallis said that in early 2009 he had become aware that there were a number of unfilled low grade casual clerical positions within the MPS and it was this knowledge which precipitated his email.708 Mr Wallis explained that he had sent the email to Mr Yates because he did not know the head of human resources at the MPS and said that, in effect, asking a friend or a contact to pass on a CV of your child was the way of the world, noting that on occasions he had given work experience to the children of journalists from other newspapers.709 4.115 Rightly or wrongly, the practice of referring friends and relatives for appointment on a temporary or permanent basis within the MPS would appear to be have fairly commonplace
pp26, para 22(b), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-ofNeil-Wallis.pdf 705 IPCC Statement following resignation of Dick Fedorcio from Metropolitan Police Service, http://www.ipcc.gov.uk/ news/Pages/pr_290312_dick.aspx 706 IPCC Report - Investigation into the decision to employ Mr Neil Wallis of Chamy Media Ltd. as a specialist advisor to the Metropolitan Police Service, published April 2012, http://www.ipcc.gov.uk/Documents/investigation_ commissioner_reports/inv_report_chamy_media_report_120412.pdf 707 Although I recognise that many names are included in this Report of people who have done absolutely nothing wrong in dealing with this issue of employment, there is no reason to add to them 708 pp28, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-ofNeil-Wallis.pdf 709 pp43-44, lines 17-5, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-2-April-2012.pdf
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although there may be an important difference between paid (even temporary) employment and unpaid work experience (which I discuss below). Martin Tiplady, the then Director of Human Resources for the MPS, said in an email to Mr Yates in relation to this potential recruitment of Ms Wallis to the effect that a number of senior officers in the MPS had referred relatives and friends to them in order that they might be considered for temporary employment.710 4.116 Mr Yates described his involvement in this matter as being limited to acting as a post-box and forwarding her expression of interest to Martin Tiplady. I had no influence over the decision to offer [Mr Wallis daughter] work with the MPS and I did not encourage anyone else to do so.711 Mr Fedorcio also said that he played no part, formally or informally, in Ms Wallis obtaining work at the MPS and did not encourage the offer of work to her.712 The email from Mr Yates to Mr Tiplady, sent on 29 January 2009, stated:713 Bit of advice plse [sic] the attached CV belongs to the daughter of Neil Wallis, the Dep Editor of the News of the World. You probably know that Neil has been a great friend (and occasional critic) of the Met in past years and has been a close advisor to Paul [Stephenson] on stuff/tactics in respect of the new Commissionership. Mr Wallis daughter is looking for a change of direction and something steady a bit along the lines of the work that my son did recently although she looks eminently qualified to do something more demanding. I have met her on several occasions and although would not claim to know her well she is clearly bright, very personable and presents well. Clearly there is a vetting issue which would prob [sic] have to go through normal channels unless you advise me otherwise. Be grateful for an early response so I can manage expectations with both Neil and his daughter. 4.117 Mr Yates description of Mr Wallis is interesting in itself. However, and specifically in relation to his involvement in this matter, Mr Yates disagreed that there was at least the perception of influence created by the fact that Mr Wallis daughter did ultimately obtain a position within the MPS, pointing out that the recipient of the email, Mr Tiplady, was a peer on the management board who had a reputation for telling it as it is.714 4.118 That said, on 15 July 2011 Ms Wallis declared her connection to Mr Wallis in line with MPS policy following her fathers arrest the previous day, and on 18 July 2011 the Metropolitan Police Authority (MPA) recorded the conduct of Mr Yates role in the employment of Ms Wallis and the matter was referred to the IPCC for investigation.715 I make it abundantly clear
p3, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY4.pdf p22, para 74, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Yates. pdf 712 p19, para 94, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf 713 IPCC Report Investigation into the involvement and actions of Assistant Commissioner John Yates in the recruitment process for the daughter of Mr Neil Wallis, published April 2012, p5, para 12 http://www.ipcc.gov.uk/ Documents/investigation_commissioner_reports/inv_report_employment_report_wallis_120412.pdf 714 p41, lines 19-25, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 715 IPCC Report Investigation into the involvement and actions of Assistant Commissioner John Yates in the recruitment process for the daughter of Mr Neil Wallis, published April 2012, p3, paras 3-4, http://www.ipcc.gov.uk/ Documents/investigation_commissioner_reports/inv_report_employment_report_wallis_120412.pdf
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that Mr Wallis daughter was not, herself, the subject of any investigation and there is (and never has been) the slightest suggestion that she had acted inappropriately in relation to the manner in which she obtained employment with the MPS. 4.119 The IPCC on 19 October 2011, and in their final report published in March 2012, found no evidence that Mr Yates had directly influenced the appointment of Ms Wallis and accordingly concluded that there was no evidence that his actions and involvement amounted to misconduct. The IPCC went on to say, however:716 it is however evident that the email chain between two members of the MPS senior management board was perceived by more junior staff to be in the nature of an instruction to find a job for Ms Wallis and this should have been foreseeable both to Mr Yates and Mr Tiplady. Whether or not it was routine for senior officers to pass on CVs it was poor judgement to do so, bearing in mind the appearance of favouritism. Mr Yatess claim that he was simply a post box should be read alongside the full text of his email which refers to the relationship of the owner of the CV to Neil Wallis, described as a great friend (and occasional critic) of the Met in past years and has been a close advisor to Paul [Stephenson] on stuff/tactics in respect of the new Commissionership. 4.120 For the purposes of this Inquiry, and in relation to this specific issue, I am satisfied that I have heard nothing which would cause me to come to a different conclusion to that of the IPCC. Work experience students 4.121 In 2003 or 2004 Mr Fedorcio approached the then editor of The Sun, Rebekah Wade (now Brooks), to see if his son (who was considering a career in journalism) could undertake a weeks relevant work experience. He explained that the arrangements were made between his sons school and the HR department of The Sun and that when he was there:717 he spent some time on the Bizarre desk. I think he spent some time on the general news desk. I think he also spent some time on the online version of the paper. Im not totally sure, but thats my recollection. After Mr Fedorcios son had successfully completed this period of work experience he was invited to return if he wished. He took up that offer after university, completing a further four-week placement in 2007.718 Mr Fedorcio acknowledged that The Sun was aware that the initial placement was for his son but strongly denied that this was an example of favours being called in, he said:719 I dont believe it was at all. Not as far as I was concerned. And the arrangement at that stage in 2007, I was not involved in. That was a matter between my son and the Sun direct.
IPCC Report Investigation into the involvement and actions of Assistant Commissioner John Yates in the recruitment process for the daughter of Mr Neil Wallis, published April 2012, pp12-13, para 75, ibid 717 p7, lines 7-18, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-13-March-2012.pdf; p20, para 97, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Witness-Statement-of-Dick-Fedorcio.pdf 718 p7, lines 20-25, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-13-March-2012.pdf; p20, para 98, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Witness-Statement-of-Dick-Fedorcio.pdf 719 p8, lines 6-11, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf
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4.122 In July 2005 Lord Blairs son also undertook a weeks work experience at The Sun. Lord Blair explained that:720 I arranged through Dick Fedorcio for my 15 year old son to do a weeks work experience at the Sun newspaper. Arranging work experience for young people in this manner was perfectly commonplace at that time; the current debate about formalising arrangements for internships had not then begun. I had a whole series of young people do attachments, although none of them to my knowledge were from press-related families. As to why The Sun newspaper in particular, Lord Blair said:721 I think that Mr Fedorcio mentioned that Paul Condons son had done work experience at the Sun, so I said, Oh, well, thats the kind of thing that would excite most 15-year-olds, so I think that should be a good idea. Thats all I thought about it As Lord Blair noted, this kind of arrangement was commonplace at the time, and moreover, The Sun was not known for being particularly favourable towards, or close to, Lord Blair during the period of his Commissionership. As Michael Sullivan, the crime editor of The Sun, put it:722 the Sun had a fairly ambivalent approach to Sir Ian, as he then was. I dont think he was our cup of tea and I dare say we wouldnt have been his cup of tea 4.123 I do not believe that there is anything of substance in the instances detailed above. It is, indeed, commonplace for parents in any walk of life to seek to arrange work experience for their teenage children in places that they will find attractive and to do so by contacting those whom they know. Today, there is much greater awareness of the potential disadvantage suffered by those whose parents do not have any such contacts but I do not consider that this sort of interaction creates any concern. I am not surprised that a teenager would find work experience on a tabloid of real interest: there is no basis even for any perception of undue closeness as a result. Loan of a horse to Rebekah Brooks 4.124 A similar conclusion can be reached in relation to this issue, which was the cause of some public comment. It came to light initially through the evidence of Lord Blair, who explained that the MPS maintained an arrangement whereby members of the public could apply to be given a horse which had been retired from the MPS mounted branch. He said:723 The Met has about 100 horses, of which I assume a regular proportion are released, and this is a regular event, because the horse is still well but it is not strong enough to do the work that its required to do, and the Met, I presume, quite understandably, doesnt want to put them down. So I think this is quite regular Lord Blair reported his understanding that at some point during his period as Commissioner,
p12, para 28, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Blair.pdf p30, lines 15-19, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-MorningHearing-7-March-2012.pdf 722 p39, lines 4-10, Michael Sullivan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-15-March-2012.pdf 723 pp29-30, lines 23-4, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-7-March-2012.pdf; pp11-12, para 27, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Witness-Statement-of-Lord-Blair.pdf
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Ms Brooks made such an application.724 4.125 Mr Fedorcio was able to elaborate on the circumstances which led, ultimately, to the loan of a MPS horse to Mrs Brooks. He recalled that Mrs Brooks approached him about the scheme and expressed interest in offering a home to a retired police horse in September 2007.725 Mr Fedorcio placed her in contact with the relevant officer of the mounted branch and said that he felt this could possibly lead to some positive coverage about the care of retired police horses.726 Furthermore, Mr Fedorcio agreed that he would arrange for Mrs Brooks to visit the Imber Court stables and introduce her to Inspector Hiscock who was in charge of the scheme.727 He subsequently made the then Commissioner, Lord Blair, aware of the approach and the action taken. He said:728 I spoke to the Commissioner because on the day that I was due to take her to Imber Court, we were having lunch with Rebekah Wade, and I thought it would be wrong for Rebekah Wade to turn up at the lunch, having been at the Metropolitan Police Stables that morning and had such a discussion with the officer, and I assumed one of her first lines would be: Ive had a very interesting morning at stables, and the Commissioner would have looked blank. I thought he needed to be briefed on what might come up over lunch. 4.126 The visit to the stables took place on 19 September 2007 and thereafter, neither Lord Blair nor Mr Fedorcio had any dealings with Mrs Brooks in respect of her interest in the loan of the MPS horse and she was left to deal directly with Inspector Hiscock.729 Mr Fedorcio explained that there was then a nine month gap between the initial meeting and Mrs Brooks receiving the horse, which was some time in July 2008.730 In the intervening period it transpired that a suitable horse had been identified and that Inspector Hiscock had visited and checked the facilities being offered by Mrs Brooks for the care of the animal.731 In relation to his role in this affair, Mr Fedorcio said that he was keen that if she was able to enter the scheme like any other member of the public, then she should be able to.732 4.127 I am quite sure that Mr Fedorcios initial assistance in this matter went beyond what a member of the public could expect in similar circumstances, however, I have heard nothing to suggest that there was anything irregular about the loan of the horse given the standard checks that were apparently performed by Inspector Hiscock. For her part, Mrs Brooks strongly denied that there was any connection or exchange between the work experience placement offered to Mr Fedorcios son, and the acquisition of the police horse.733 I have no reason to believe that there is.
pp11-12, para 27, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-LordBlair.pdf 725 p14, para 61, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf 726 p14, para 62-63, ibid 727 p14, para 62-63, ibid 728 p4, lines 14-23, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 729 p5, lines 12-18, ibid 730 p3, lines 10-12, ibid 731 pp5-6, lines 25-10, ibid 732 p3, lines 16-18, ibid 733 p29, lines 1-6, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-11-May-2012.pdf
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DPA staff and media employment 4.128 The fact that Mr Wallis and his daughter were employed by the MPS, and that Mr Hayman and Lord Stevens were engaged to write articles for the Times and the NoTW respectively gave rise to the allegation that there was a revolving door of employment between the MPS and NI. This in turn raised more general questions as to the appropriateness of former journalists being employed by the Police Service. The revolving door allegation was made by Brian Paddick, formerly a Deputy Assistant Commissioner in the MPS, and was echoed by James Murray, Associate News Editor of the Sunday Express, who asserted that the Metropolitan Police did have a lot of ex News Of The World journalists but I could not understand why. It was exceptional.734 4.129 On examination, however, these assertions would not appear to be borne out by the facts. Mr Fedorcio told the Inquiry that within the DPA, of 32 members of staff with a media background, there were 12 who had previously worked for NI titles.735 Of these only three had worked for the NoTW and all were part time staff.736 Mr Fedorcio explained that:737
p11, para 41, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-JamesMurray.pdf; p6, para 15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-ofBrian-Paddick1.pdf 735 Broadly reflecting the national coverage of the NI titles 736 pp7-8, para 26, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf 737 p70, lines 6-21, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-13-March-2012.pdf
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Ive looked through the data thats provided those raw numbers, and I find it quite interesting the three staff who have worked for the News of the World, one of them worked on some freelance shifts there between 1988 and 89, so over 20 years ago. The second one had a four-month contract in 1995, so 15 years ago, and the third worked some freelance shifts between 2001 and 2004. So there is no one within the department who has worked for the News of the World since 2004. on the wider Murdoch media, the other nine, as it were, four of those worked for Sky News, one for the London Paper and the Sun had worked for both the organisations, two had worked for the Sun, one for six months, one for five weeks, and one had one weeks work experience on the Times 4.130 Mr Stearns, who had worked for the Daily Mail for seven years and for two years at a PR agency prior to joining the DPA,738 defended the employment of former journalists as police press officers. He said:739 In my view, if I want to recruit the most capable press officers then I want people with the right skills, such as news sense, good writing skills, good interpersonal skills and good overall communication skills. When we advertise jobs we get a wide range of people applying including reporters. Sometimes, but not always, ex-reporters are the strongest candidates and therefore I do not feel it is right to exclude a strong candidate on the basis that they have been a reporter. 4.131 Mr Stearns also pointed out that all DPA staff were recruited by the MPS in open competition and in accordance with the process laid down by the Government Communication Network (GCN).740 He went on to say that:741 In general those that have worked in the news media have worked for multiple organisations for example, of the six staff who have paid employment for the Sun or News of the World (mainly on a freelance shift basis) all have worked for between three to seven news organisations before joining the MPS. In addition, four of these staff left the media over ten years ago. Other staff have worked for a wide range of local newspapers and other national media groups. 4.132 This would not appear to be particularly unusual within the Police Service. The West Midlands Police had a communications team of 30, of which five were trained journalists and four had a background within local journalism.742 Similarly, in South Wales Police three members of the 20 staff in its communication team had previously worked for the media.743 Perhaps more striking in this regard was the example of Surrey Police. The experience of managing the media interest generated by the Milly Dowler investigation led to a number of changes to its Media Relations Team. This included increasing the number of ex-journalists who were recruited, to the point that by 2012, all Surrey Police Media Relations Officers had experience of either local or national journalism. It was said that these staff brought with them a better understanding of the demands placed upon journalists and the knowledge of how to build
pp10-11, para 26, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-EdStearns.pdf 739 p11, para 28, ibid 740 pp11-12, para 29, ibid 741 pp11-12, para 29, ibid 742 p89, lines 2-6, Chief Inspector Sally Seeley, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-20-March-2012.pdf 743 p3, lines 22-23; p5, lines 15-21, Catherine Llewellyn, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Afternoon-Hearing-21-March-2012.pdf
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an effective and professional relationship that met the needs of both parties.744 As Lord Blair put it if they dont have experience of the media, how good are they going to be to you as press officers?745 4.133 This viewpoint was shared by Stephen House, Chief Constable of Strathclyde Police, who said:746 We actively recruit into our media department from journalists and to say we wont accept journalists into our media department would be the wrong decision because were looking for people who understand what journalists are looking for and are there to assist them in getting what they need within the requirements of our organisation Similarly, Jerry Kirkby, Assistant Chief Constable of Surrey Police, said:747 Personally, I think having professionally trained individuals who come from that background [i.e. journalism] is a good way of actually doing it and it works for us 4.134 Broadly speaking, it would appear that movement from the print media to public relations or communications specialism (within the Police Service) was in practice a one-way street. Mr Fedorcio, for example, could only recall one member of DPA staff joining the media, but this in his view never caused any problems or concerns.748 Mr Stearns evidence was of a similar nature, he said that my colleagues in DPA and I can only recollect one individual in over 20 years who has moved back into journalism. I believe this illustrates that there isnt, generally, a two way movement between these jobs.749 Part of his explanation for this position was that an employed job in PR or communications provides greater job security for those who have been previously working on shifts at a newspaper, and that generally the level of pay is better. He said:750 Once someone in journalism has taken a decision to leave to take an employed job, such as working for the DPA, these lifestyle choices mean that they rarely go back. Obviously, Im not saying it never happens, but as the experience at the DPA shows, it is far from common. 4.135 Mr Stearns also suggested that the concept of journalists working for the Police Service, amassing contacts and confidential information, then returning to the media with a plethora of unethically sourced exclusives was a myth. He said:751 It is extremely common for people entering a range of PR jobs to have had a media background as the skill set needed to work in communications has many similarities to working in the news media. In my view and experience, this does not mean that
pp11-12, para 21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-ofAssistant-Chief-Constable-Jerry-Kirkby.pdf 745 p40, lines 14-18, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-MorningHearing-7-March-2012.pdf 746 p74, lines 7-13, Chief Constable Stephen House, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-21-March-2012.pdf 747 pp19-20, lines 25-3, Assistant Chief Constable Jerry Kirkby, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-27-March-2012.pdf 748 p8, para 28, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Dick-Fedorcio. pdf 749 p12, para 30, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Ed-Stearns.pdf 750 ibid 751 pp10-11, paras 26-27,ibid
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those leaving behind a media career continue to have allegiance to their previous employer although I have friends and acquaintances who are journalists that I have known throughout my working life, this does not mean that I reveal confidential information to them over a pint in the pub. It is normal for any individual working in a particular job to have both friends and acquaintances who do the same job; these are the people you meet and develop working relationships and friendships with. It is not unusual; it is the same the world over in any profession. But this does not mean that when I, or any other journalist, leave a newspaper that suddenly we have no respect for duties of confidentiality or integrity and are leaking information back to our former employer To suggest otherwise shows a lack of understanding of those who regard journalism and PR as a profession and take pride in their work. Most journalists in my experience have a due and proper regard for the bounds of confidentiality; not least because of our experience in protecting sources for whom public identification could be devastating. 4.136 Similarly, Mr House said that he would not be concerned about a former journalist leaving the Police Service to return to journalism, he said:752 If someone from the media comes into our organisation and then goes back out again into the media, you are reliant upon professional code of ethics, both journalists and the police. I have to say that we have a number of people within our media department who have been journalists and worked in the media and we experience no problem. If they were to turn around and go back into the media, would I be concerned? Actually, I wouldnt be, because theyre good at what they do and if they go and work for someone else, theyll be good 4.137 There were other slightly differing views as to what limitations, if any, should be placed on former journalists now working within the Police Service rejoining the media. Lord Blair was of the view that it would not be appropriate to put a restriction on a journalist working for the MPS going back to the print media because that is his or her profession.753 Similarly, Sir Paul Stephenson said that:754 I would be very reticent about recommending a restriction around junior officers. It seems to me thats not the problem that weve had and I think that would be a disproportionate response Mr Fedorcio on the other hand thought that a cooling off period may be appropriate but this would depend on the type of work undertaken whilst in the Police Service.755
p74, lines 14-23, Chief Constable Stephen House, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-21-March-2012.pdf 753 p40, lines 2-8, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-MorningHearing-7-March-2012.pdf 754 p50, lines 16-20, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf 755 p8, para 28, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Dick-Fedorcio.pdf
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4.138 I set out my reflections and conclusions on this issue in Part G Chapter 4 below. Former senior MPS staff taking media jobs, writing books and articles 4.139 Of greater concern from the standpoint of perception and good practice is the issue of former senior police officers and staff taking media jobs, or writing books (to be serialised in the press) or newspaper articles, shortly after the conclusion of their tenure within the Police Service. It is true to say that the issues that arose concerning former MPS police officers and staff taking on such work was largely limited to those who attained the highest office. Of those who gave evidence to the Inquiry who have written books or regular newspaper columns, all but one was either a former Commissioner or Assistant Commissioner in the MPS. The exception was Mr Paddick, who subsequently sought to develop a political career.756 4.140 As has been described, in 2006, Lord Stevens published his autobiography, Not for the Fainthearted, and the book was serialised in the NoTW and The Times.757 From that contract came a further contract to write seven articles for the NoTW. The contract for these articles was then renewed for a further year with a maximum of nine articles, but Lord Stevens terminated the contract in October 2007, with only four articles having been written that year.758 Lord Blair began writing and broadcasting for payment about a year after he left office, publishing Policing Controversy in 2009.759 Mr Hayman, having the left the MPS in April 2008, entered into a contract with The Times in the August of that year and continued writing until July 2011.760 He also wrote a book (with the journalist Margaret Gilmore) titled The Terrorist Hunters which was published in 2010.761 4.141 There were certainly differing attitudes to the issue of writing books or performing the role of a media commentator or columnist after leaving office. Lord Condon said that he had personally declined all offers to write a book about his time as Commissioner. Similarly, he declined all offers to be a columnist or retained commentator for particular newspapers, television or radio. He said that he had declined offers:762 not because I saw anything morally or ethically wrong per se having spent my career sort of trying to major on integrity, independence, being apolitical, it just seemed that I would have to take decisions and be partial and be drawn into favouring or working with one group over another my view is there is nothing inherently wrong in that, it just would have taken me out of my comfort zone 4.142 Sir Paul Stephenson expressed doubts about officers publishing soon after leaving office and said:763
pp1-3, paras 1 and 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-BrianPaddick1.pdf 757 p16, para 46, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Stevens. pdf 758 pp93-96, lines 9-2, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 759 pp14-15, para 35, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-LordBlair.pdf 760 One of his articles (in connection with Operation Caryatid and published shortly after the Guardian article of 9 July 2009) is the subject of detailed analysis in paras 5.28-5.32 below 761 pp127-129, lines 7-19, Andy Hayman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-1-March-20122.pdf 762 pp39-40, lines 18-14, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 763 pp52-53, lines 21-8, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-5-March-2012.pdf
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I am nervous about restraining people when they leave public office because we shouldnt discourage people from coming into public office in the first place. But I am not a fan of people going into print so soon after leaving public office, perhaps for another reason thats not really relevant to the Inquiry, and that is it makes it very difficult for existing post holders if they think that every discussion might suddenly find its way into print shortly after somebody leaves office. I think its a debate that has many sides and I dont say Im right on this. I just simply say Im not a fan 4.143 I have previously made the point that I can identify a potential risk, in terms of the public interest, in recently retired senior police officers immediately providing a commentary on policing matters, given its capability to undermine legitimately taken operational decisions, even where an alternative approach might also have been appropriate. Sean ONeill, Crime Editor of The Times, who was instrumental in the hiring of Mr Hayman for his newspaper, accepted that such employment ran the risk of undermining those who were then in command:764 I see the risk where someone with recent experience of the management board is writing about it, I can see that. I can see that if a person has a score to settle, that might be done. 4.144 Despite this, Mr ONeill believed that former senior police officers offered:765 a valuable insight into the workings of the police and the way the police behave. Any imposition of a cooling off period between leaving the police and commenting in the media would reduce their relevance. The policing world can change very quickly (as we have seen in the wholesale transformation of the leadership of the Met recently) and it is most helpful to the readers to have relevant and contemporary voices writing and commenting on it.
4.145 HMIC, in their review report Without fear or favour a review of police relationships, recorded that there was little evidence of cooling off periods being required for senior staff leaving to take up posts with commercial or other bodies with related interests.766 This is certainly the case in relation to the MPS, which generally does not impose restrictions as to the future employment which police officers or staff can accept on leaving the organisation. Police officers are governed by Police Regulations, which do not include such a restraint in respect of any future employment.767 4.146 The terms and conditions of employment for ACPO-ranked officers issued by the Metropolitan Police Authority (MPA) had a clause concerning post authority employment and appointments. It provided that before accepting any appointment which would start within one year of leaving the MPS, the approval of the Chief Executive of the MPA was necessary in cases where the employment was with (a) an organisation, firm or business providing any commercial or contractual services to the MPS or to the Authority, or (b) where the organisation, firm or business intends to tender for the provision of such services. The clause further stated that the approval of the MPA would not be unreasonably withheld.768 However, Catherine
p32, lines 5-8, Sean ONeill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-21-March-2012.pdf 765 p15, para 70, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sean-ONeill.pdf 766 p51, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-withoutfear-or-favour.pdf 767 pp12-13, para 30, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-ofCommissioner-Bernard-Hogan-Howe1.pdf 768 p5, para 25, Catherine Crawford, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-CC6.pdf
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Crawford, formerly Chief Executive of the MPA (now the Mayors Office for Policing and Crime or MOPC), confirmed that the clause was directed towards procurement contracts rather than employment with the media, and that furthermore, there was currently no contractual impediment to prevent an ACPO officer on leaving the MPS to begin to work immediately for the press.769 4.147 There were varying opinions as to the need to contractually prevent officers from taking media related jobs for a set period of time. Commissioner Hogan-Howe confirmed that he or the MOPC could seek to introduce such a restriction for senior officers of ACPO rank or above, particularly for those who are appointed on fixed term contracts or whose service is terminated on agreed terms.770 He suggested that any restraint of trade clause should be restricted to a reasonable period.771 On this he said:772 it seems to me that something of the order between 12 months and two years is probably where this might settle, but I certainly would advise a cooling-off period. Lord Blair said that the lack of any restriction on future employment, beyond the duty of confidentiality that police officers and staff are subject to pursuant to the Official Secrets Act, was a source of concern.773 He said:774 I am sure this is a situation that should be changed, even though that might have meant that there was some limitation on me writing and broadcasting for payment It is my view that a restriction period of two years would be appropriate. This two year period would apply to senior staff who have access to the most sensitive and detailed information.775 4.148 Similarly, Sir Paul Stephenson said:776 all senior officers do have whats called a fixed-term appointment, which is a kind of pseudo-contract, which allows for discussion between the employer and that senior officer, which doesnt exist with junior officers, to actually put certain conditions in there of their employment And it might be worthy of consideration in terms of engendering public confidence and of course Im thinking of the perceptions that come out of this very matter itself it might be worthy of consideration for further thought to be given to: should there be some sort of time bar or should there be some sort of consideration before a senior officer and wed have to discuss the level of seniority takes up full-time direct employment with the media?
p69, lines 2-23, Catherine Crawford, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-29-March-2012.pdf 770 pp12-13, para 30, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-ofCommissioner-Bernard-Hogan-Howe1.pdf 771 ibid 772 p61, lines 18-21, Commissioner Bernard, Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-20-March-2012.pdf 773 pp14-15, para 35, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-LordBlair.pdf 774 pp14-15, para 35, ibid 775 p38, lines 17-24, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-MorningHearing-7-March-2012.pdf 776 pp50-51, lines 21-12, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-5-March-2012.pdf
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4.149 However, Sir Paul was slightly more equivocal on this matter than the current Commissioner and Lord Blair, for he went on to say:777 Im nervous about it because Im nervous about any restraint of trade, and Im nervous about stopping people making a contribution, but I do think that this particular Inquiry and the whole matters that have been deeply distressing for many people and the difficult position for the Met, its worthy of consideration. I simply say that 4.150 Mr House took a slightly different view. He certainly saw risks in senior officers moving on to a writing or media career following retirement but said:778 I think if its done in the right way, its done authoritatively about technical issues to inform the public, to provide a useful inject of experience and done for positive reasons, its a good thing. If its done for revenge and settling of some scores, and let me tell you what really happened, then its disappointing. He did not feel that a cooling off period was the right thing to do in many respects because one has to trust senior police officers and 99 per cent are completely trustworthy.779 4.151 Whilst mindful of the concerns expressed by Sir Paul Stephenson and Mr House in particular, on balance I have come to the conclusion that consideration should be given to the terms on which ACPO rank officers are engaged and, in particular to whether these terms should be amended to prevent employment by media organisations in much the same way as the previous MPA contracts prevented employment by those with a contractual relationship with the MPS. I appreciate that regard must be had to issues of restraint of trade and, the rights to seek employment to freedom of expression and, additionally, to the public interest in receiving information. With this in mind, it seems to me that a time bar of twelve months would be sufficient to provide an appropriate balance between the rights of the individual and public interest concerns relating to future employment by the media. 4.152 As I am not in a position to consider all the ramifications of such a proposal my recommendation is, therefore, limited. I set this out in Part G Chapter 4 below.
5. The problems of friendship

Andy Hayman
5.1 Andy Hayman joined Essex police in 1978, serving in a variety of uniform and CID roles as he worked his way through the ranks. He was Chief Constable in Norfolk from January 2002 to February 2005 when he transferred back to the MPS as an Assistant Commissioner in charge of Specialist Operations (ACSO). Mr Hayman therefore had overall responsibility for Operation Caryatid having been ACSO during the relevant period of time.780 In around 2003 he was selected to be Head of the ACPO Media Committee. Mr Hayman announced his retirement from the MPS in December 2007 and left the organisation on 17 April 2008.781
p51, lines 13-19, ibid p75, lines 2-10, Chief Constable Stephen House, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-21-March-2012.pdf 779 p76, lines 7-9, ibid 780 Part E, Chapter 4 781 pp1-3, paras 4-10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-AndyHayman1.pdf
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5.2
Mr Hayman told the Inquiry that, in his view, it was important for the MPS and all police forces to maintain a healthy, collaborative working relationship with the media so that they could build and maintain public confidence in the police.782 On entering ACPO, Mr Hayman described his challenge to the more reserved position of some of his colleagues who he said preferred to keep the media at arms length; it was his view that the public expected a senior officer to be visible.783 In analysing the relationship between the police and the media, Mr Hayman concluded that there was a benefit to both sides in having a professional relationship, but that the terms of engagement between the two had to be clearly understood.784 Mr Hayman said:785 I came to this work with the background of being very reserved towards the media. I didnt feel I needed to engage, because I felt that sometimes that kind of relationship was difficult. There was some if you went and speak [sic] with colleagues, there were probably experiences where it wasnt particularly positive on either side. So I saw that at worst there could be the medias objective to try and get exclusives and cross a line, and on the other side at worst, from the police side, the danger would be that maybe people would cosy up and start leaking inappropriately [sic] information to the media. But I didnt feel that that was necessarily an obstacle to embark on this work. That was just something that we needed to manage. I have to say, trying to drive this nationally was difficult, because I think people always went to their default position of this is just too difficult, Im not going to do it.
5.3
Despite this initially reserved stance towards the media, Mr Hayman confirmed that he would meet with journalists where he believed that it would benefit the MPS and its mission.786 He described his professional relationship with the media as becoming more intense,787 as he performed the national roles as ACSO and the ACPO Media Lead. As his professional relationship with the media developed, Mr Hayman clearly understood that their contact with him may have been for a broader purpose than simply to better their understanding of the policing challenges of the time. He said:788 I think if you look at the media in its broadest sense, which just doesnt include the written media, it includes radio and TV, is that theres not one type, theres all different styles and approaches, just as there are with senior police officers or junior police officers. It would be a lot easier, wouldnt it, if everyone was operating in the same way, but they dont, and therefore I think what Im trying to say there diplomatically is there may be I would like to think that the mainstream would see it for what it is, that relationship, but I hope Im not nave to realise that there may be other agendas playing which people might seek to exploit.
5.4
This difference in style and approach to the media by senior individuals within the Police Service, as described by Mr Hayman, has certainly become evident during the course of this
p4, para 11, ibid p5, para 15, ibid 784 pp5-6, para 16, ibid 785 p110, lines 1-19, Andy Hayman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 786 p11, para 31, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-AndyHayman1.pdf 787 p11, para 33, ibid 788 pp111-112, lines 25-13, Andy Hayman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-1-March-20122.pdf
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Inquiry. There was clearly a social element to the interaction between Mr Hayman and the media. He described his attitude to these more social encounters:789 I cant remember whether I inherited it or not, but there was a structure in place where with this Crime Reporters Association there were regular lunches which my colleague, Peter Clarke, would go to, and when I joined the Met, thats something that I did as well. And its on a regular basis. The purpose of those lunches was to develop and foster the relationship I tried to describe earlier where you just didnt pick up when you wanted something. Of course I was operating here with two hats on, and I was trying to do the same nationally with the ACPO media group hat on, and therefore what I felt there was an awful lot of benefit in probably going the extra mile with that ACPO hat on, because I wanted to get traction not just in London but also elsewhere, and I wanted to support the media officers within each force accordingly. So that would extend beyond a lunch, and I would have meetings in the evening at dinner, not necessarily in London, it could be elsewhere. And I remember one event with the Society of Editors where I think I spoke at their conference, so it would be beyond just those CRA lunches, but I would want to make sure everyone understood that the social scene of interacting was businesslike, but it was also to develop the relationship which hopefully I could have built on around that plan I set out. 5.5 It might be said that it is incumbent upon whoever has the role of ACPO Media Lead and ACSO to foster relations with the media in this way. However, the level and type of interaction with the media in these two roles does appear to be individualistic in nature. Chief Constable Trotter, the current ACPO Media Lead, told the Inquiry that although from time to time he met with editors and journalists to discuss any areas of current concern, the contact was fairly sporadic and would very infrequently encompass a lunch or a dinner.790 Assistant Commissioner Dick, the current Assistant Commissioner responsible for Specialist Operations, confirmed, to the best of her knowledge, that in the 11 years that she had been an ACPO officer in the MPS, she had had just one lunch with a journalist, and on that occasion she had been accompanied by a press officer. She also confirmed that on one occasion she had attended a charity dinner paid for by the CRA, and had attended three of the CRA annual drinks party with the MPS in those 11 years; she emphasised that she would always decline alcohol at those events.791 The stark difference in approach to their interaction with the media between Mr Hayman and Ms Dick would also appear to have been recognised internally within the MPS; Sara Cheesley, for example, agreed that Mr Haymans approach was somewhat more expansive than Ms Dicks.792 That is not necessarily to say that a less expansive approach to interacting with the media is preferable; however, there are clear dangers involved for police officers and other senior public officials in developing overly close social relationships with journalists where there is a pre-existing professional relationship, particularly where hospitality and alcohol are engaged. Jane Furniss of the Independent Police Complaints Commission succinctly articulated the potential dangers in this way:793
5.6
pp112-113, lines 17-21, ibid p68, lines 6-12, Chief Constable Andrew Trotter, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-hearing-28-March-2012.pdf; p3, para 3, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Witness-Statement-of-Chief-Constable-Andrew-Trotter1.pdf 791 pp12-13, para 31, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ACCressida-Dick.pdf 792 pp27-28, lines 10-6, Sara Cheesley, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-13-March-2012.pdf; at all material times, she has been civilian media lead within the DPA in this area 793 pp30-31, lines 23-21, Jane Furniss, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-hearing-28-March-2012.pdf
790
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I do think its very unwise to develop social relationships between people who have a professional relationship. Of course friendships develop and one wouldnt want to restrict that, but being very clear about the boundaries. As I said earlier, I dont think journalists wine and dine senior public officials because they like them. They do it because they want something. They want to influence decisions. As I said earlier, alcohol in those circumstances makes that even riskier, because the risk is that all of us become more indiscreet, more relaxed in those circumstances. The biggest problem about alcohol is it impairs your judgment and it leads you to believe your judgment isnt impaired, so it makes it doubly risky, doesnt it? So in my from my point of view this is something you do when youre with friends, not something you do when youre at work, and the perception is a really important part of it because public confidence in bodies like mine and in the police is based on the belief that we are doing our job in the public interest, with integrity and without any bias. Those are really important principles that we should all feel very strongly that we should protect. 5.7 Perhaps the best illustration of this point was made during John Twomeys evidence to the Inquiry. He described meeting Mr Hayman for lunch on two or three occasions with a view to learning more about the general context of counter-terrorism police operations.794 Mr Twomey admitted that given the social nature of the interaction, the conversations went wider than simply a discussion about counter-terrorism policing:795 Well, there might be references to I dont think they occurred really that often. I think because they were social occasions, there would be a portion a large portion of the conversation would be about, say, anti-terrorism, putting it in the context. There would be other general matters you might talk to people about over lunch, subjects like the news of the day, anything that was that had captured peoples attention that morning, in the mornings newspapers perhaps. 5.8 Mr Twomey also provided the Inquiry with an insight into the behaviour of Mr Hayman following the consumption of alcohol:796 He was freer in the way he expressed himself. I think if unguarded if you mean if he gave away secrets, no, I dont think he did. He certainly didnt do in my presence, not when he was talking about counter-terrorism or anything else, for that matter, and it was always clearly Im sorry if Im repeating myself, but it was always on those social occasions, there was this strict rule anyway that applied: it was nonreportable. 5.9 Lord Blair would appear to have recognised the dangers inherent in this type of social interaction. He described in his book, Policing Controversy, his view that Mr Hayman appeared to be spending a great deal of time with the press, and that there were rumours that he was briefing in an inappropriate manner and had developed a lifestyle of late evenings which could be a danger to his professional standing. To be fair to Mr Hayman, however, Lord Blair acknowledged that he never had any proof that Mr Hayman was briefing inappropriately.797 Mr Hayman provided this response to Lord Blairs assertions:798
pp32/-33, lines 24-7, John Twomey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-19-March-20121.pdf 795 p33, lines 12-20, ibid 796 pp38-39, lines 23-6, ibid 797 pp113-114, lines 25-25, Andy Hayman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-1-March-20122.pdf 798 pp114-115, lines 11-8, ibid
794
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If you viewed it as my primary role in the Met, I can understand why he might say that, his opinion. But if you put my other hat on as well, I would argue that that was a proportionate amount of time being spent. Hes expressed a view there about information that was being shared. I completely disagree with that and I think its important that he does qualify that at the end I am not saying that there werent meetings in the evening with the press. Im sure that they could be found. What I will say is that the hours that were being worked through that period between 2005 and beyond, even after I retired, were on a scale that no other none of us in our team had experienced before, to the point where fatigue across the team, both junior and senior levels, was a regular facet of work. Hospitality 5.10 During his evidence to the Inquiry, Mr Hayman was taken through a number of entries in the MPS gifts and hospitality register and his personal diary concerning his contact with the media, particularly in respect of NI personnel, for the period March 2005 to April 2007.799 Mr Hayman confirmed that following an offer from the NoTW newspaper he had what was described as a working dinner with the journalist Lucy Panton on 8 November 2005.800 His attendance was in his capacity as ACSO and he described what might have been discussed:801 I cant be 100 per cent sure about this, but what I can so Im in a way speculating, but given the timing of this and it was shortly after the attacks, we were keen sorry, the News of the World were keen to run campaigns to help tackle the threat from terrorism. They had some rough ideas of what they wanted to do, and I recall trying to guide and give advice on that So when we talk about working dinner, I cant accurately remember what that was about, but it was certainly in line with my recollection that the paper was being proactive about trying to tackle the whole issue of this unfolding home-grown threat from terrorism. 5.12 This working dinner was followed three days later by a meeting at the NoTW offices, again with Ms Panton.802 Ms Panton described Mr Hayman as a work friend and suggested that she had shared a couple of lunches, a breakfast meeting, coffees and drinks meetings with him.803 Neil Wallis (Deputy Editor of the NoTW from 2003-2007, and thereafter Executive Editor until 2009) told the Inquiry that he first met Mr Hayman in 2005 and that they subsequently met for a drink about six times a year.804 Mr Wallis suggested that he was able to offer Mr Hayman a level of insight into the way the police were interacting with the media, he said:805 Andy, as I think he said in his evidence to you, was particularly interested in police/ press relations. He had very strong views on it. He had views particularly in light of ACSO and of the pressure of anti-terrorism operations at the time, and it was of
pp115-116, lines 9-5, ibid; p2, Andy Hayman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Exhibit-AH2.pdf 800 p116, lines 2-10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-Afternoon-Hearing1-March-20122.pdf 801 pp116-117, lines 14-9, ibid 802 pp117-118, lines 10-2, ibid 803 p3, para 1e, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Lucy-Panton.pdf 804 p5, lines 15-21, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-2-April-2012.pdf 805 pp5-6, lines 24-10, ibid
799
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interest to him, I think there was a very strong debate, I think, about how much of that should be in the public domain and how much should not be in the public domain. Now, I have always held the view, both personally and as a journalist, that the public deserves to be informed more. However, there was obviously the operational constraints 5.14 Mr Wallis explained that Mr Hayman was interested in how the national media reacted to and the effect of the levels of information that would come out,806 and that Mr Hayman used Mr Wallis as a sounding board in this context so that he could provide a view on how are the media reacting to this? What do you think is the reality behind the media perception of that? What could we do to change a view, for instance?807 Mr Wallis suggested that over time he became friendly with Mr Hayman and that they enjoyed each others company, to the extent that no persuasion was needed when he invited Mr Hayman to meet for a drink, he said well, I never noticed I had to arm-twist him, no.808 Moving forward, Mr Hayman confirmed that he had attended a dinner at the NoTWs expense on 25 April 2006 at Soho House with Andy Coulson and Mr Wallis, at the time editor and deputy editor of the paper; Dick Fedorcio also attended.809 Mr Hayman suggested that this event may have been organised by Mr Fedorcio to enable him to meet Mr Coulson and Mr Wallis for the first time, although he acknowledged that his recollection of what transpired at the dinner was not perfect.810 If this was simply an introductory meeting then the timing was unfortunate to say the least. Operation Caryatid (which came within Mr Haymans command) was at this time entering a critical juncture; Detective Chief Superintendant Williams, the Senior Investigating Officer for the operation, had sought advice from the CPS on 20 April 2006 regarding searches at the NoTW, and that advice was provided to the police on the day that the dinner took place. The decision was taken to proceed with the investigation on the following day, 26 April 2006.811 Mr Hayman confirmed that he had been aware of Operation Caryatid at the time of the dinner but not of its possible scope.812 Being entertained by the editor and deputy editor of a newspaper which was becoming the focus of a criminal investigation was, at its lowest, extremely unwise. I am prepared to accept (as everyone involved has made clear) that nothing untoward took place during the course of this meal insofar as the police investigation is concerned. Having said that, however, I have no doubt that the perception that this social engagement inevitably and understandably created has, in fact, damaged the reputation of the MPS in general and Mr Hayman in particular. By way of one example only, it has undoubtedly fuelled the expressed perception that the failure to pursue Operation Caryatid beyond the prosecution of Glenn Mulcaire and Clive Goodman was a specific consequence of that relationship. The same might be said of further meetings which took place with Mr Wallis and Ms Panton over the course of the next year. Mr Hayman confirmed that he met alone with Mr Wallis for an early evening meeting on 24 October 2006 although he could not recall what was discussed.813 In addition, he attended a working lunch at a restaurant, Santinis, with Mr Wallis
5.15
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p6, lines 20-22, ibid pp6-7, lines 23-4, ibid 808 p7, lines 9-12, ibid 809 p118, lines 3-19, Andy Hayman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 810 pp118-119, lines 21-13, ibid 811 Part E Chapter 4 812 p119, lines 14-20, Andy Hayman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 813 p121, lines 5-14, ibid
807
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and Ms Panton on 29 March 2007. Mr Hayman again could not recall the exact purpose of the lunch but stressed that nothing inappropriate was discussed.814 The lunch meeting was not recorded in the hospitality register for which the public paid; Mr Hayman used the MPS American Express card with which he had been provided.815 I appreciate that the criminal prosecution had concluded and that the work of engaging with the media had to go on: in the light of the events of the previous year and the difficulties that the police had experienced, however, with Burton Copeland, it is somewhat surprising that Mr Hayman felt that it was appropriate for him to entertain staff of the News of the World to lunch at public expense. 5.18 Two entries for 1 February 2007, again not recorded in the MPS hospitality register, are worthy of particular note. The first concerned a lunch for nine people at Shepherds Restaurant. Again, payment for the lunch was by Mr Haymans MPS American Express card, with the bill coming to 566, of which 181.50 was spent on alcohol. Mr Hayman explained that the lunch had been to mark the promotion of a colleague and to reward his senior team for their hard work and sacrifices during what was evidently a very busy and pressurised period for counterterrorism policing.816 Whether or not this was a legitimate expense for the public purse to bear is not a matter upon which it is necessary for me to express an opinion; the amount spent on alcohol, however, together with the fact that it was not recorded in the relevant hospitality register is perhaps illustrative of the culture in place within the MPS at the time. The second entry concerned a Crime Reporters Association business dinner at the Oriel Wine Bar and Bistro. During the course of the evening Mr Hayman, again using his MPS American Express card, spent 47 on a bottle of champagne for a CRA representative, possibly from the NoTW.817 Mr Hayman could not recall who that representative might have been;818 it has been suggested that the individual concerned was Lucy Panton, although she denied this in her evidence to the Inquiry.819 She did however confirm that on occasions she had shared a bottle of champagne with Mr Hayman in a large group setting, such as the CRA Christmas party.820 Mr Hayman argued that in his judgment this form of entertainment was legitimate given the work it was producing in terms of the support from the NoTW for the polices anti-terror campaign.821 With all due respect to Mr Hayman, this is not a satisfactory explanation. The risk created by this type of social interaction with members of the press in general (and, even more so, with one title in particular) created a perception of a relationship that was more than capable of undermining public confidence in the Metropolitan Police. The fact that one title (or its journalists) was being given preferential treatment not only underlines and justifies that perception; it also gives rise to a legitimate concern from other journalists that the particular title had a special and favoured position in police circles. Mr Hayman attended two further working lunches with Mr Wallis in September and November 2007, both of which were recorded in the hospitality register, and a CRA lunch with Ms Panton in attendance in August 2007, again recorded in the hospitality register.822 Regarding the risk
5.19
G
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5.21
pp121-122, lines 15-5, ibid p122, lines 6-23, ibid 816 pp122-124, lines 24-1, ibid 817 p124, lines 2-18, ibid 818 pp124-125, lines 22-8, ibid 819 p20, lines 1-2, Lucy Panton, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am.pdf 820 pp18-20, lines 20-6, ibid 821 p125, lines 12-13, Andy Hayman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 822 p125, lines 14-25, ibid
815
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that a perception of impropriety had been created by the level and nature of his contact with certain sections of the media, Mr Hayman said this:823 On reflection and I want to go back and think, well, what was my thinking at the time. I was very enthusiastic about the whole national build for counter terrorism. We wanted to be much better than we were in 2007, 2005. That meant building a national picture, counter terrorism units, both covert and overt, across the country from scratch. What had to go hand in glove with that was a media strategy, and inevitably a lot of that was centred in London because thats where the hub of the media was. So it was nothing but enthusiasm and a bit hasty, because we didnt know when the next attack was going to come. But the point youre making in hindsight as we pour over this, at the time it was absolutely well intended, honourable, but on reflection I can see what people can see. I am not at all sure that hindsight was necessary. To anyone who was acquainted with the facts (as Mr Hayman should have been, even if he was not), the risk and the potential danger was obvious. Contract with The Times 5.22 Mr Hayman told the Inquiry that he first began working for The Times in 2008.824 He explained that when it became more widely known that he had retired from the MPS in the middle of April 2008, he had received several invitations from both the print media and television industry to consider being a commentator on contemporary policing issues.825 To this end he sought the help of a specialist agency to represent his position in negotiating any future roles and met with an agent.826 Mr Hayman said that he was approached by Sean ONeill, the crime and security editor of The Times, and then subsequently was interviewed by the editor and deputy editor of the newspaper. Mr Hayman could not be sure of the timing but suggested that it was certainly not any earlier than two months after his retirement in April 2008. Following the interview, Mr Hayman said that he discussed the opportunity with his agent, compared it with other invitations and decided to accept the terms being offered. Mr Hayman confirmed that this was shortly followed by employment with ITN, NBC and more latterly LBC.827 Mr ONeill described the hiring of Mr Hayman from his perspective, strongly refuting the suggestion that this was a favour being done by NI for past deeds:828 The initiative to contact Andy Hayman was mine, to be honest. He was I dont think he knows this, but he was second choice. I approached Peter Clarke first of all. We had a relatively new editor, he had a new style whereby a news story he liked to have a news story accompanied by a commentary or an analysis, something like that. I quite often felt uncomfortable writing the news story and then commenting on it, I didnt think that was appropriate, so I suggested we find an expert commentator. We do the same with health, we have a doctor who writes routinely, and I thought it
pp126-127, lines 15-4, ibid p15, para 42, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-AndyHayman1.pdf 825 p15, para 43, ibid 826 pp15-16, para 44, ibid 827 ibid 828 pp30-31, lines 18-13, Sean ONeill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-21-March-2012.pdf
824 823
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might be you know, I knew Clarke and Hayman had retired in fairly quick order, one after the other, and we had at the time a huge terror trial going on, the airline plot trial, and I thought if there were more terror trials in the pipeline, it would be good to get one of these guys to give an expert commentary on terrorism issues and then more broadly on policing issues. So it was 2008. Hacking wasnt in the news, wasnt an issue. 5.25 Mr ONeill confirmed that Mr Hayman was paid a 10,000 per annum retainer at The Times,829 but denied that this was a quid pro quo for any assistance that he may have given to NI whilst he was Assistant Commissioner for Specialist Operations. He said:830 I had very limited contact with him, and he had media contracts with ITV News, with LBC, with NBC, and we nabbed him just before he signed up he was being pursued by the Daily Telegraph. Frankly now I wish Id let the Daily Telegraph sign him up. It would have been better for him and for us. 5.26 Mr Hayman provided the Inquiry with his views on the contract with The Times:831 Once Id retired, I didnt do an awful lot, just tried to sort of make the transition into retirement, and so effectively on paper I wasnt entering the Yard from December 2007, and it was towards the beginning of the summer I was approached not by a News International outlet, but by someone else, another paper, and also TV outlets who were interested to sign me up, as it were. In hindsight I think probably because there were a lot of activities going on with trials around terrorism and they would want someone to perhaps offer an opinion on it. This was something that Id never really thought would happen, and I therefore went to an agent to get some advice and help, and I let the agent deal with all the negotiations. The point that I now find out is that News International, the Times got wind of the other persons interest and then thats how we ended up having two outlets, as it were, wanting to sign me to write. Now, I did give this long thought, and I thought what is the difference here set phone hacking aside just for one minute, if we may. What is the difference here between a retired police officer, of which there are others who have written, doing commentary and hopefully working alongside a journalist who can do a factual journalistic reporting, but a police commentator can give more of an insight to the reader, and working hand in glove, that could actually produce some good reportable material, which would also enhance this profile and contact with the police as well. I made the comparisons in my mind, albeit theyre not directly comparable, between sportsmen who retire, maybe politicians and maybe financiers, and I honestly did not make the connection that I was embarking, if I made that choice rather than that choice, into a stable that was part of the News of the World. I just didnt make that connection. I didnt know the people, didnt know the editor, the deputy editor. I was formally interviewed. Never met them before. Throughout the whole relationship, never any hint of trying to exploit what may be my contacts, what may be a relationship there. My experience was it was completely above board. However if I had my time again and I was able to make that link, presentationally that is difficult and its difficult to people to probably in a way believe that account, but that is the account as it happened and there are many people who were involved in those
p15, para 70, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sean-ONeill.pdf pp32/-33, lines 23-3, Sean ONeill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-21-March-2012.pdf 831 pp127-129, lines 19-19, Andy Hayman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-1-March-20122.pdf
830 829
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negotiations that I think can corroborate what Ive said. 5.27 Leaving aside whether it is appropriate for a recently retired senior police officer to move almost immediately into a role commentating on police operations and practices, again there is, as Mr Hayman acknowledged,832 an issue of perception. Mr Hayman confirmed what is clearly the reality, namely, that The Times and the NoTW were entirely separate entities and made the point that:833 I can honestly say I cant remember in that building bumping into anyone that I had professional contact with when I was in the police service. 5.28 The problem is neatly evidenced by one particular article written by Mr Hayman that has understandably been the cause of some concern. The piece, published in The Times on 11 July 2009, was effectively a rebuttal of the Guardian newspapers assertion that phone hacking had been widespread. To recapitulate, the Guardian article claimed that the police file demonstrated that between 2,000 or 3,000 individuals had been the subject of mobile phones hacking which was far more than was ever officially acknowledged or mentioned by the police during the investigation and eventual prosecution of Glenn Mulcaire and Clive Goodman. Mr Hayman, however, suggested that his recollection of events was different, and that the list of those people targeted, which was put together from records kept by Mr Mulcaire, ran to several hundred names. Furthermore, Mr Hayman went on to suggest that of those targeted, there was only a small number, perhaps a handful, where there was evidence that phones had actually been tampered with.834 To be clear, Mr Hayman told the Inquiry that when he wrote The Times article he had:835 Absolutely no reference to any documents. Indeed, when I left the Met, that would be absolutely inappropriate for me to either try and elicit that or have any conversation about that. This was on what I understood from my recollection, my general broad recollection, of how events were. Mr Hayman suggested that his reference to a handful of tampered phones accorded with his interpretation of what the evidence had shown and what he had been told at the time.836 His evidence was that the reference in his article to the list of those targeted came from his recollection of a brief conversation while Operation Caryatid was taking place with Commander John McDowall, who was standing in for the temporarily absent Peter Clarke.837 Mr Hayman could not recall why Commander McDowall had come to him with the list of names and said:838 John was a sort of guy who would just turn up to the office, and if I wasnt either busy or in a meeting he would probably then literally say good morning, good afternoon. He was a very sort of sociable guy, and he also kept me I suppose in his mind I dont know what he was thinking, but I guess he thought hes been told that and hes briefing me but it wasnt anything substantial. 5.30
832 833
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As to the substance of what had been said to him by Commander McDowall, Mr Hayman conceded that it had clearly had some impact on him given that he was able to recall it
p129, lines 20-22, ibid p130, lines 17-20, ibid 834 p142, lines 12-25, ibid 835 p142, lines 6-11, ibid 836 p144, lines 15-23, ibid 837 p143, lines 8-23, ibid 838 p145, lines 8-15, ibid
907
within his Times article some three years later.839 Mr Hayman also agreed that the very fact that Commander McDowall had taken the time to raise this with him suggested that it was something of importance.840 However, Mr Hayman did not accept that it necessarily followed from what had been said to him that the evidence gathered by the police at that stage demonstrated that the practice of phone hacking extended far more widely than the Royal Family. He said:841 I think the distinction was being drawn at the time between whats the difference between a journalist or someone who works for a journalist having telephone numbers, which is sensibly an address book, versus it going beyond just an address book into something more sinister. And my recollection was this is a number of people who could just be part of the address book as opposed to something that had been more sinister or attacked. 5.31 This account highlights the difficulty of trying retrospectively to analyse interactions of this type and any decisions taken thereafter. It would certainly appear odd in the extreme for Commander McDowall to have troubled Mr Hayman with such a prosaic piece of information, and Mr Hayman himself accepted that if the judgment there is that that could have been a trigger that should have been acted upon, I hear what you say.842 The unfortunate perception created by this episode is exacerbated by the assertion within Mr Haymans article that had there been phone tampering in other cases, then that would have been investigated by the police, as would the slightest hint that others were involved.843 As to this, Mr Hayman said:844 Well, they werent investigated and I dont understand you know, Ive written that as part of an article, and to go back to in that office and that interaction to remember why things were or werent done, I just cant do. 5.32 I deal with the police approach to Operation Caryatid, the analysis undertaken and the decisions made in considerable detail elsewhere in this Report.845 There is no doubt, however, that The Times article, written by Mr Hayman, led to the perception that a defence of NI was more important to him than any proper investigation of the allegations in the Guardian article. Whether that perception is justified, however, must be judged in the light of the facts. In particular, although high in the chain of command for this investigation, Mr Haymans involvement in Operation Caryatid was minimal, as was his level of knowledge of the evidence in the possession of the police. By way of example only, at the time that he wrote the article, he did not know that the police investigation had obtained information about PIN numbers used to gain access to the voicemails of targets.846 In the light of all the circumstances, I am prepared to accept that with the passing of time, the absence of any of the relevant police documentation and his natural allegiance to the MPS and his former colleagues, in writing The Times article, Mr Hayman was simply reacting peremptorily to the substance of the Guardian article. Unfortunately, in doing so, he helped to create the impression that the MPS and its former employees were engaged in deliberate obfuscation of the full circumstances surrounding the original phone hacking investigation.
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p146, lines 7-12, ibid p146, lines 13-22, ibid 841 p147, lines 2-10, ibid 842 p147, lines 17-19, ibid 843 pp147-148, lines 24-6, ibid 844 p148, lines 8-12, ibid 845 Part E Chapter 4 846 pp149-150, lines 1-16, Andy Hayman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-1-March-20122.pdf
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John Yates
5.34 John Yates is a former Assistant Commissioner in the MPS. Mr Yates joined in September 1981 and spent his entire 30 career with that force. Mr Yates told the Inquiry that he was promoted to the rank of Assistant Commissioner in 2006 and in April 2009 he became the national lead for Counter-Terrorism (CT).847 Mr Yates confirmed that he resigned from the Police Service in July 2011 and officially left on 7 November of that year.848 Given the context to this Module of the Inquiry, it is important to point out (as Mr Yates confirmed) that he had no role in relation to any aspect of counter terrorism during the period of the investigation in Operation Caryatid, that is to say from its inception in 2005 to the sentencing of Mr Goodman and Mr Mulcaire in January 2007. He therefore played no part in the original investigation and had no direct or personal knowledge of the facts.849 Using his experience of the culture of relations between the MPS and the media over the years, Mr Yates suggested that for the vast majority of the time there had been a healthy and transparent relationship at all levels.850 Mr Yates told the Inquiry that, in his view, that relationship would include more informal transactions, such as lunch or dinner with individual journalists.851 Mr Yates described how he ensured that those more informal transactions remained healthy and transparent:852 Its a matter for ones professional judgment and discretion. The vast majority of my dealings with the media would be around the sort of strategic policy issues that I was exposed to in my service at the senior rank. So in terms of the big issues of the day, be it counter terrorism legislation, be it data retention, be it rape policy, for which I was responsible nationally for a number of years, the very vast majority would be around that I think theres a great value in that in terms of both educating myself, testing hypotheses, testing views, and getting the views back as well, so the last thing I think we would want is policing to be in a bubble and in a vacuum where one isnt connecting to other thinking. 5.36 Mr Yates explained that the nature of the roles and investigations he had been asked to undertake meant that he had received significant exposure into how all sections of the mainstream media interacted with the police.853 Mr Yates described how he had often become the public face854 for policing and policy matters, and that he considered that the media were seeking, through their contact with him, fully to understand the context around policing issues or particular events.855 As to whether this might be a slightly nave or benign view of the medias expectation of their dealings with him, Mr Yates said this:856 No because I do think many of those dealings, the vast majority, as I said, had been around understanding the context. If you take, for example, the governments desire to legislate around data retention and the use of police data in its general
pp2-3, paras 3-7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-JohnYates.pdf 848 p2, lines 9-14, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 849 p3, lines 10-14, ibid 850 p3, lines 15-21, ibid 851 p4, lines 11-13, ibid 852 pp4-5, lines 17-10, ibid 853 pp3-4, para 9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Yates.pdf 854 p6, paras 15-16, ibid 855 p9, para 23, ibid 856 p7, lines 6-17, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf
847
5.35
909
sense, there was a fundamental misunderstanding about how important that was. So if you have the opportunity to explain that and explain the full context and the value of those sort of issues, then I think Im doing it in what I believe, and I still believe, was in the best interests of the public and the best interests of policing. 5.37 The level of Mr Yates contact with the media was the cause of some comment. As Mr Yates himself admits, on becoming the head of counter-terrorism within the MPS, the Security Services were understandably concerned about the degree of his media contact in his previous roles.857 Mr Yates suggested that this concern arose in part because of all the briefing against me in the cash for honours investigation,858 and that once they saw how he worked in his new role he felt that the Security Services knew any such concerns were clearly unfounded.859 Mr Yates also confirmed that Tim Godwin, the then Deputy Commissioner, had advised him, as he did other management board members, to reduce his contact with the media.860 Mr Yates accepted that this advice was of particular relevance to him given his establishing the facts role in the developing phone hacking story,861 and said:862 I think it was generally well-known and by many people in a perfectly proper way that I had and had had good relationships with the media going back a number of years, so it was very well known and, as I say, but I absolutely accept what youre saying in terms of it may have been directed to me than, say, the director of resources. 5.39 When asked about his advice to Mr Yates, Mr Godwin told the Inquiry:863 I thought at a point when, having become the Deputy Commissioner, I thought the frequency of those meetings and the manner of those meetings could be misinterpreted and the perception would be wrong, and as a result I did disapprove at that point.
5.38
Both Mr Godwin and Mr Yates sought to explain this disagreement as a difference in style rather than a difference in values insofar as interaction with the media was concerned. Mr Yates said:864 I think Tim was of the view that the media were the enemy and we shouldnt be in contact with them. Now, I dont concur with that view, never have done, and Ive had some healthy dialogue, debate, with Tim on those points. He took it [sic] a different view to me and others. 5.40 Mr Godwin sought to elaborate on this point and said:865 I think to be fair we pretty much had common values about honesty, integrity in terms of conduct I think the difference, with respect, would be that there was one
pp8-9, para 22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Yates.pdf pp8-9, para 22, ibid 859 pp8-9, para 22, ibid 860 p11, lines 5-15, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 861 p11, lines 16-20, John Yates, ibid 862 pp11-12, lines 25-6, John Yates, ibid 863 p54, lines 12-17, Tim Godwin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-7-March-2012.pdf 864 p12, lines 12-17, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 865 pp55-56, lines 21-1, Tim Godwin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-7-March-2012.pdf
858 857
910
style that was favoured by some members of the management board of the Met and there was another style, which was my style, where I didnt feel comfortable in that environment. So I wouldnt say its a values difference, its a difference of style. 5.41 This difference in style and approach has been evident during the course of the Inquiry. Mr Godwin accepted the organisational difficulties which flowed from maintaining a position whereby very senior police officers were each able to develop their own unique, and perhaps conflicting, relationship with the media, and said:866 I think that as a result of this Inquiry and as a result of the events as they unfolded last year in the Metropolitan Police whilst I was still there and as the Acting Commissioner, we did actually take action to make sure that we had a common style in terms of our interaction with the media. I think in those days about openness, transparency, not wanting to be seen as in a siege mentality scenario, as has been the case in the past, I think there were different styles as to how we could be open, transparent, approachable, accountable, and as a result of that, there were different styles that developed. But the values of the organisation were still the same in terms of honesty, integrity, value human rights, et cetera. 5.42 Mr Godwins view, and it is one that I fully share, was that the inherent danger in adopting Mr Yates approach or style in relation to his interaction with the media was that it created the potential for a reputational risk and, in particular, the prospect of having to face suggestions of impropriety, such as leaking to the press, however ill-founded the suggestions might be. This mandated Mr Godwins own approach to his interactions with the media. He told the Inquiry:867 I think I was more concerned about the perceptions where you have media stories that are gossip stories or embarrassing stories or leaks, then the sheer fact that youve engaged in that sort of behaviour does make you vulnerable to being accused of misconduct, et cetera, so I thought that that was probably not the right environment, but that was purely a style issue for me Naturally it would follow that those that are frequently meeting with the press, frequently engaging in social events with the media, would be the ones that would automatically be looked at as potential sources But obviously they may well not be, of course. Hospitality and News International 5.43 Mr Yates explained that he accepted hospitality, mainly in the form of lunch or dinner, from the media in accordance with the relevant MPS guidance of the time, and that it was declared in the Hospitality and Gifts register.868 Mr Yates went on to explain that this would not include any occasion when I met casually with a journalist and drinks and coffee were bought on a reciprocal basis,869 so it would be accurate to say that the register only recorded a proportion of Mr Yates social contact with the media. Mr Yates told the Inquiry that an arrangement to have lunch or dinner or attend a social function was considered perfectly acceptable and had many benefits.870 Mr Yates confirmed that it was his practice to drink alcohol on these
866 867
p56, lines 7-20, ibid p57, lines 2-18, ibid 868 p14, para 41, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Yates.pdf 869 ibid 870 p15, para 43, ibid
911
occasions in sensible quantities, which (as he accurately pointed out) was perfectly acceptable under the hospitality guidance in place at the time.871 5.44 It is right to record that Mr Yates contact with the media was not limited to NI or NoTW personnel; there were a large number of meetings with other sections of the media.872 In relation to NI more generally, Mr Yates told the Inquiry that he had never met James Murdoch or Rupert Murdoch.873 He recalled twice being a guest at Rebekah Brooks table at the Police Bravery Awards, which were sponsored by The Sun, and he may also have had lunch with her at The Sun together with the newspapers crime editor in January 2009.874 Mr Yates recalled meeting Andy Coulson for the first time in late 2009 at the Evening Standard 1000 Most Influential Londoners Event, by which time Mr Coulson was the Director of Communications for the Conservative Party. Neil Wallis 5.45 Neil Wallis and Mr Yates were friends. Mr Yates accepts that Mr Wallis was a good friend875 of his, and his diary recorded a number of private appointments with Mr Wallis, Nick Candy, a property developer, and (on occasions) a friend who worked in PR.876 An example of this type of contact was dinner at a restaurant called Scalinis on 3 June 2009.877 Mr Yates explained that the purpose of these occasions was to go out with friends and enjoy a dinner, and that they were purely social events.878 Mr Yates evidence was that on this particular occasion Mr Candy paid for the meal although there were many times I paid for dinner.879 Mr Yates also confirmed that on two or three occasions he had attended a football match with Mr Wallis.880 He fairly accepted that there would have been some discussion in relation to their professional lives in the margins of these social encounters881, but said that:882 As I say, completely in the margins. Of course there must have been, but I know a number of lawyers, and count them as good friends, and we can talk about the legal system without talking about particular cases. I know bankers, you can talk about banking systems and not talk about individual accounts. Youd have to accept theres a sort of element of professionalism and sound judgment that stops you going into areas where you shouldnt go into, and the inferences shouldnt be there.
5.46
pp10-11, lines 22-3, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 872 pp1-30, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-MPS-61-John-Yates-meetingswith-the-Media.pdf 873 p17, para 54, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Yates.pdf 874 p18, para 55, ibid 875 p20, line 25, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-AfternoonHearing-1-March-20122.pdf 876 p19, lines 24-20; p20, lines 17-21, ibid 877 pp15-16, lines 24-3, ibid 878 p17, lines 3-6, ibid 879 p16, lines 18-20, ibid 880 p17, line 25, ibid 881 pp18-19, lines 25-3, ibid 882 p19, lines 7-17, ibid
871
912
5.47
Mr Wallis for his part told the Inquiry that he first encountered Mr Yates when he had been a staff officer to Lord Condon, and that over the years he had come to regard him as a good friend.883 He said that:884 We socialised together by attending football matches and we shared in common a keen interest of sport in general, lived in a similar area of West London, we had families of a similar age and we got on very well. Mr Wallis described how he was enlisted by Mr Yates to help to formulate an anti-rape campaign, sponsored by the NoTW, in order to publicise the good work being carried out by Mr Yates in his role as ACPO lead on this area, although he insisted that it was not done as a means of showcasing him.885
5.48
When asked about the private dinners with Mr Yates and Mr Candy, Mr Wallis reiterated that the discussions did not stray into policing matters. He suggested that Mr Candy was not interested in the police886 and they tended to discuss issues of the day, sport and current affairs.887 Mr Wallis also refuted any suggestions that, on the occasions that Mr Candy was not present, he and Mr Yates discussed the internal politics of the management board of the MPS.888 The transparency or otherwise of Mr Yates relationship with Mr Wallis was the subject of some debate. Dick Fedorcio described his understanding of the nature of their friendship as follows:889 I was aware that they knew each other. I was aware that they got on quite well. I understood their contact to be mainly work. I was aware of what I would call sort of banter between them over football matters. Occasionally, John would show me a text that hed received from Neil Wallis, which would have been passing comment, shall we say, on a recent football result, which Liverpool, Johns team he supported, had played in. So I was aware of that sort of interaction. Through that, I think I was aware that on one occasion they went to a football match together, but I couldnt say when I heard that or where it was. He considered that they had developed a business friendship and that theyd once been to a match together. But beyond that, I wasnt aware of anything else that took place.890
5.49
5.50
Mr Fedorcio therefore expressed some surprise to have read about the extent of the out-ofhours contact between Mr Wallis and Mr Yates, indicating that it was a revelation to me.891 Mr Fedorcio suggested that it would have been helpful for him to have been aware of this level of personal contact in his capacity as the Director of Public Affairs, not least because of
pp8-9, para 1(d), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-ofNeil-Wallis.pdf 884 ibid 885 pp108-110, lines 24-8, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-2-April-2012.pdf 886 p4, lines 5-16, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-2-April-2012.pdf 887 pp4-5, lines 17-5, ibid 888 p5, lines 6-11, ibid 889 p25, lines 6-17, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-13-March-2012.pdf 890 p26, lines 3-9, ibid 891 p27, lines 20-24, ibid
883
913
his need to be kept informed of issues that might create a reputational risk for the MPS.892 Given his lack of knowledge of the level of personal contact between Mr Wallis and Mr Yates and with an eye to the future, Mr Fedorcio said this:893 I didnt think that I would expect to know peoples personal contact, if that sort of thing was going on I mean, at the time I didnt, and I didnt think really of it, but I look at it now and say, Thats the sort of information I think that the Met should know from senior people, and that people in my job perhaps should know as well, especially if its a relationship with the media. 5.51 Similarly, Sara Cheesley told the Inquiry that during a number of conversations with Mr Yates the impression was given by Mr Yates that he saw Mr Wallis a few times a year but that he didnt class him as a very close friend.894 Mr Yates, on the other hand, suggested that Mr Fedorcio would have been aware of the extent of his friendship with Mr Wallis, he said:895 I would absolutely know that Dick would know that Neil and I would be fighting about football and that would be absolutely in his knowledge, I would have thought. As to the level of his social contact with Mr Wallis, Mr Yates said that he would imagine896 that Mr Fedorcio would have been aware, and said theres nothing Im trying to hide around it. Its in my diary, even a private appointment.897 Sir Paul Stephenson, Commissioner during the relevant period, explained that he:898 knew Mr Yates was a friend of Mr Wallis. I cant in all honesty say I knew the extent of the friendship, but I did know he was a friend, yes. Lucy Panton 5.52
Mr Yates told the Inquiry that he had known Ms Panton professionally for about 10 years and was on very good terms with her, I also considered her a friend.899 He said that she was married to a Metropolitan Police officer and he had been a guest at their wedding. He described Ms Panton as:900 one of the most active members of the Crime Reporters Association (CRA) and was one of the reporters that followed every major crime-related story. Mr Yates said that as a consequence Ms Panton had regular dealings with the police at a number of levels, including with me.901
p27, lines 8-19, Dick Fedorcio, ibid p28, lines 2-9, Dick Fedorcio, ibid 894 p20, lines 16-20, Sara Cheesley, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-13-March-2012.pdf 895 p99, lines 11-14, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 896 p99, line 17, ibid 897 p99, lines 19-20, ibid 898 p70, lines 20-22, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf 899 p19, para 61, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Yates. pdf 900 p19, para 61, ibid 901 p19, para 61, ibid
893
892
914
5.53
He said that like most senior journalists working in this area, Ms Panton had his mobile telephone number and sometimes called him directly if there was a matter or an issue that she wanted to discuss.902 Mr Yates said that he occasionally met Ms Panton for a drink, as he did other journalists, and that sometimes he met her on her own but more normally with several other journalists, press officers and other police officers present; and that Mr Fedorcio, in his capacity as Director of Public Affairs, was nearly always there.903 Ms Panton could not recall exactly when she had first met Mr Yates but estimated that it would have been about a decade ago when I was on the Sunday People, and it would have been at briefings at the Yard in a group crime reporter setting.904 Ms Panton confirmed that Mr Yates had been a guest at her wedding along with many other police officers,905 and given this fact described the nature of their relationship:906 There were a few people at my wedding who I would class as working friends, who I did socialise with outside of work, and Mr Yates falls into that category. I certainly got on well with him. I had a good rapport with him, but we didnt socialise outside of work. The wedding was the only occasion. There were a lot of people at my wedding.
5.54
5.55
Interestingly, and despite this working friendship, Ms Panton was clear that she regarded all police officers she knew as confidential contacts.907 This is obviously understandable given her job as a journalist but does appear to reaffirm the requirement for complete transparency in the relationship between the police and the press so that there can never be any question of impropriety in respect of either side. This requirement becomes all the more apparent when examining some of the interaction between Mr Yates and Ms Panton. There were a number of examples of both recorded and un-recorded contact between Mr Yates and Ms Panton in a more social setting.908 On 5 November 2009, Mr Yates attended a dinner meeting with Colin Myler, then Editor of the NoTW, and Ms Panton at the Ivy Club restaurant.909 The entry within the gifts and hospitality register suggests that the dinner was to improve understanding of each others operational environment.910 It appears that this formulation was one commonly used in the register where senior officers were meeting with a news organisation. Mr Yates said:911 I had nothing to do with the formal words, but that was the formal words that appeared to sort of encapsulate it and satisfy the police authority. The Ivy Club is one of the more exclusive and expensive restaurants in London. Despite this, Mr Yates maintained that this interaction was appropriate at the time that it took place, he said:912 I mean, in terms of what we know now, yes as I say, in terms of what has happened in the last three or four months, yes, I suppose it is [inappropriate], but it
5.56
p19, para 62, ibid p19, para 63, ibid 904 p3, lines 12-15, Lucy Panton, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am.pdf 905 p4, lines 14-17, ibid 906 p5, lines 12-18, ibid 907 p5, lines 25-16, bid 908 p28, lines 4-28, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 909 p23, lines 2-22, ibid 910 p23, lines 5-11, ibid 911 p23, lines 13-16, ibid 912 p25, lines 14-24, ibid
903
902
915
certainly wasnt at the time in terms of what we knew about the events, Mr Mylers position, he was the new editor whod come in, and I go back to what I said at the start. I think its hugely important that senior police officers have a relationship and interact with the media, that they are not the enemy, they are occasionally critical friends and occasionally much worse. 5.57 The importance of perception in this context and the potential damage that can be done to an individual or organisations reputation is perhaps best illustrated by an internal NoTW email which was produced in evidence to the Inquiry.913 The email, sent on 30 October 2010, was from James Mellor, then the number two on the news desk at the NoTW, to Ms Panton.914 The email related to the Al-Qaeda inkjet plot, and conveyed Mr Mellors view that Mr Yates could be crucial in helping to corroborate the facts around the story.915 Within the email Mr Mellor asks Ms Panton whether she had yet spoken to Mr Yates and suggests that the newspaper really needed an exclusive splash line,916 and so it was time to call in all those bottles of champagne.917 The inference is obvious. Ms Panton provided her view on the emails contents:918 I dont think it was necessarily light-hearted. I think he was putting pressure on me to get a story. I would call that banter. Its the way that people spoke to each other in the office. I would read that at that time as banter mixed with a bit of pressure. 5.58 Metaphorical or otherwise, and Ms Panton denied the reference to be true,919 the use of the term call in all those bottles of champagne does at least appear to convey a perception within the editorial staff of the NoTW that Ms Pantons relationship with Mr Yates enabled her quickly to obtain information from him. As to this, Ms Panton said:920 I think they hoped that you would be able to ring these people up and bring in exclusives every week. The reality is they know that doesnt happen, unfortunately, otherwise we would have had bigger and better crime stories than we did. My recollection of this is that I did phone Mr Yates and I dont believe I actually got to speak to him. That was the reality, week in, week out. 5.59 Despite being unable to contact Mr Yates in this instance, Ms Panton did admit that he would have been her first port of call within the Police Service if she were looking for somebody to provide her with the material to assist in producing an exclusive splash line.921 Mr Yates provided the context to the email:922 the background is the weekend of that 30 October was I think it was about two or three days beforehand there had been a printer cartridge bomb found on a DHL flight up in the West Midlands Airport, so there was a lot of interest around what had happened that weekend.
p1, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY2.pdf p15, lines 6-9, Lucy Panton, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am.pdf 915 p15, lines 14-20, Lucy Panton, ibid 916 p15, lines 24-25, Lucy Panton, ibid 917 ibid 918 p16, lines 3-7, Lucy Panton, ibid 919 p16, lines 8-12, Lucy Panton, ibid 920 pp16-17, lines 25-7, Lucy Panton, ibid 921 p17, lines 8-19, Lucy Panton, ibid 922 p37, lines 1-6, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf
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As to the contents of the email itself, Mr Yates strongly refuted the inference that his receipt of hospitality from the NoTW previously meant that he was in some way beholden to them, saying:923 firstly I have no clue who James Mellor is, I never met him in my life. Secondly, its not my e-mail and its a turn of phrase, and thirdly, it would indicate even by October 2010 that those perceived favours had never been called and I hadnt provided them with anything before and thats the position 5.60 Mr Yates also reiterated the point made by her that he hadnt been plied with champagne by Lucy Panton;924 although he did admit to drinking champagne with Ms Panton on occasions, and said that:925 there may well have been the very odd occasion, yes, when a bottle was being shared with several people He denied any impropriety.926 In the light of the evidence, I am prepared to accept that nothing untoward actually took place but this level of interaction does add to the perception that Mr Yates had developed an overly close relationship with NI and he should not be surprised if concern is expressed that perception quite frequently represents or can lead to reality. A perception of bias 5.61 This Report contains a detailed analysis of the reconsideration of Operation Caryatid undertaken by Mr Yates in 2009 and subsequently.927 Although somewhat repetitive, at this stage, it is also appropriate to deal with the allegation that Mr Yates friendship with Mr Wallis and Ms Panton (along with whatever relationship he had with NoTW) affected the way in which he went about making decisions as more and more allegations were publicly advanced. First and foremost, Mr Yates accepted that the general thrust of the article in the Guardian in July 2009 was to the effect that phone hacking involved a conspiracy which embraced others at the NoTW and one which possibly went quite high up in that organisation.928 Furthermore, it is also correct to note that, at the time of the events, his friend Neil Wallis was the deputy editor of the paper and at the time of the article, he was the executive editor.929 Given these facts, it might be argued that it was inadvisable for Mr Yates to have been involved in any way in any exercise of review, reconsideration or reflection upon Operation Caryatid: in short, it can be said that he was simply too close to at least one person who, involved or not, was at the very centre of the organisation. Mr Yates explained why in his view this was not the case:930 Well, you might as well ask that to the Commissioner as well and others who knew full well that I had a relationship with Neil Wallis, and, you know, I was looking at this dispassionately from the evidential perspective and I had people advising me on
p37, lines 18-24, John Yates, ibid p38, lines 10-12, John Yates, ibid 925 p38, lines 15-17, John Yates, ibid 926 ibid 927 paras 8.12-8.29 of Part E Chapter 4 928 p59, lines 2-6, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf 929 p59, lines 12-13, John Yates, ibid 930 pp60-61, lines 15-3, John Yates, ibid
924 923
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that, and we went through an exercise, and we got to the point we got to. To suggest that I would be influenced otherwise is wrong. You know, youre talking to a person who investigated serving government on which the Home Secretary has the final say on my career. I have a reputation and a track record of doing difficult things and doing them in a dispassionate and evidence-based way and thats exactly what I did in this case. 5.63 This may all be true in substance although there is a real difference, in my view, between investigating a government minister (who is then unlikely to be allowed the final say on [his] career) and investigating an organisation at which a personal friend holds a relevant and senior position who may be affected. Having said that, however, and irrespective of how illjudged some of those decisions might have been,931 I have heard no evidence that, in fact, any of the decisions taken by Mr Yates were influenced by his relationship with Mr Wallis or more broadly with staff at NI. That is not an end to the matter, because I have no doubt that there is and has been a clear perception that the decisions made by Mr Yates may have been affected by these relationships. Furthermore, that perception has proved to be extremely damaging both to the professional standing of Mr Yates and to the reputation of the MPS. Neither is this a small matter. Lord Blair suggested that the issue of public perception should form part of the police decision making process when determining who should lead on a particular investigation or matter of contention, and certainly where personal friendships are in play.932 He said:933 I think its at that point one has to consider whether somebody else should make the decision. I mean, as an example, and it was a term of art only lawyers would know, I discovered the word recuse, and I commented on that in relation to cash for honours, that I recused myself from the decision-making process because I was meeting the people involved on a very regular basis in the shape of the Prime Minister and other senior ministers. Its a very difficult place if you were trying to make decisions. Assistant Commissioner Dick made a similar point and suggested that where potential issues of personal conflict arise, then that fact should at least be the subject of discussion at the appropriate level before any final decision on who led a piece of work was taken.934 In relation to this particular case, and with the acknowledged benefit of hindsight, Ms Dick said:935 I do think that he should looking back, I think certainly, we wouldnt be sitting here in this manner if he had gone and discussed this in more detail, perhaps, with Sir Paul. I dont know how much Sir Paul knew about the relationship, but I think at a minimum, a conflict like that should be discussed 5.65 Sir Paul acknowledged that at the time that he tasked Mr Yates with the establishment of the facts exercise following the 9 July 2009 Guardian article he:936 didnt connect it with Mr Wallis. I didnt give it any particular thought
Part E, Chapter 4 pp78-79, lines 21-6, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-7-March-2012.pdf 933 p78, lines 7-16, ibid 934 p59, lines 4-19, Assistant Commissioner Cressida Dick, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-12-March-2012.pdf 935 p60, lines 5-10, Assistant Commissioner Cressida Dick, ibid 936 p71, lines 5-15, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-5-March-2012.pdf
932 931
5.64
918
As to whether he would have expected Mr Yates to have appreciated this issue of conflict and raised it with him, Sir Paul said:937 Well, I would expect Mr Yates to consider if he felt in any way conflicted, to have reflected it back to me, or done what any other chief constable around the country would do, including provincial forces, where if you cant put it somewhere [else], you are it. There are various devices one can put in place to ensure that any conflict of interest doesnt become an issue. 5.66 Given the subject matter of the exercise to be undertaken following the Guardian article, on the face of it it was logical to have asked Mr Yates to deal with it. He was not, however, the only choice available to Sir Paul: there were a number of other very senior police officers at his disposal. Sir Paul explained his likely reaction in the event that Mr Yates had asked to recuse himself from the exercise because of his friendship with Mr Wallis:938 Had he come back to me with this, I might have done [given the task to another officer], or he had a very large business group. I might have expected him to get somebody within his business group to deal with it and ensure there could be no allegations of impropriety against him. I do have to say this is hypothesis and were speculating just a little that probably Mr Yates would have felt that he was more than equipped to deal with it. It is not as if, in our professional lives, that we dont actually, as chief constables and senior officers, investigate people who have been friends, and to actually say somebody else has to deal with it would almost be saying that I do not have sufficient integrity to deal with it. Whether, with hindsight, it might have been wise to do that, I think thats an entirely different question. I can understand why he didnt do it, but with hindsight it might have been wise. 5.67 I entirely agree with Sir Pauls analysis in hindsight, although I think that to focus on the sufficiency of Mr Yates integrity in this matter rather misses the point. Given the allegations in the Guardian article, this was very much more than an investigation which might implicate someone who has been a friend. One of the main concerns of the article was the role of the Metropolitan Police and this, therefore, was an important reputational issue. The additional potential risk of further damage created by the perception that any reconsideration was being conducted by a friend became all the more important. Sir Paul now accepts this to be true and he offered this explanation of his thinking and that of the MPS at the time:939 there clearly was a perception of risk But I would come back the reason for giving its a little too grand to call it analysis, but some level of thinking around why I think we might have got this wrong, that defensive mindset I suspect that defensive mindset set in very early, for all the reasons I outlined, that stopped us going back and challenging what was the reason for the original investigation stopping short, albeit we didnt know it stopped short. I think that is the more likely reason why Mr Yates didnt decide that he had a conflict or not. 5.68 In fairness to Mr Yates, I believe that he does now also recognise this point:940 I think the benefit of hindsight once again comes into play because in July 2009 there was nothing to suggest that Wallis was involved in any way whatsoever, and
p72, lines 12-18, Sir Paul Stephenson, ibid pp73-74, lines 9-1, Sir Paul Stephenson, ibid 939 p75, lines 7-21, Sir Paul Stephenson, ibid 940 pp61-62, lines 19-4, John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-1-March-20122.pdf
938 937
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whats happened in the last few year [sic], and of course nothing has been proven yet, but in July 2009 there was no indication at all, and I did this very dispassionately, and I take your point about the perception, but it didnt appear to me to be a problem then and it didnt appear to others to be a problem then. It is clearly a problem now and I accept that I completely take that as a perception, but what this was on July 9, 2009, was a newspaper article. It didnt present evidence. Newspaper articles as we all know, can have basis in facts and they can have lots of flour [sic] put around them to make them more interesting. I can only go on what the evidence was that day and thats where I got to. 5.69 This comment tends to assume that what was being challenged (namely the extent of the involvement of others at NoTW) was not the case because the article did not provide evidence that it was so (as opposed to identifying potential lines of enquiry back into the original material). Further, the view of others (including the Commissioner) depends on precisely how much they knew of the relationship and friendships. Taken in the round, and given, in particular, his friendship with Mr Wallis and Ms Panton, it is very difficult to avoid the conclusion that Mr Yates ought to have recused himself from any exercise whether to establish the facts or to consider whether the article justified revisiting the original material revealed by Operation Caryatid in 2009 and thereafter. A perception was clearly created that the decisions made by Mr Yates were affected by his relationship with NI personnel, and whilst the evidence that I have heard does not bear that out (and I am happy to make that clear)941 the damage done to the reputation of the MPS as a consequence has been significant.
Sir Paul Stephenson

5.70 Sir Paul joined the Lancashire Constabulary in 1975 and, having worked his way through the ranks, was appointed Chief Constable of that force in 2002. Sir Paul joined the MPS as Deputy Commissioner in March 2005, and was appointed as Commissioner in January 2009.942 He was Deputy Commissioner at the time of Operation Caryatid but played no role in that investigation. At the time of the publication of the Guardian phone hacking article in July 2009, he was travelling to the North of England to attend a conference and he spoke to Mr Yates on the telephone asking him to undertake an exercise to establish the facts; this was not an unusual reaction to articles in the press and although he received periodic updates from Mr Yates thereafter, there is no suggestion that he was personally involved in any of the decisions that were made. For reasons that will be examined, Sir Paul gave notice of his intention to resign from the MPS on 17 July 2011 and formally left office on 26 July 2011.943 Sir Paul described his personal contact with the media as taking the form of meetings, functions and attendance at events run by various organisations such as the CRA. He would also on occasions meet with editors at drinks receptions or for meetings over lunch or dinner.944 In relation to his dealings with the media, Sir Paul explained how he ensured that the interaction remained healthy without it becoming an overt attempt to garner favour:945 I think you do it by being honest, by being as open as you can. Actually, without wishing to sound too pompous, by remembering sort of known seven principles of
As I have already done in my conclusions to Part E, Chapter 4 p2, paras 3-7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-PaulStephenson2.pdf 943 p2, para 9, ibid 944 pp10-11, para 28, ibid 945 pp8-9, lines 11-1, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf
942 941
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public life: honesty, openness, leadership, accountability, selflessness, integrity and objectivity. Theyre not bad guidelines about how we should have a relationship with the media, and by having that dialogue, by trying to ensure that there is a context there, so when editors and journalists are reporting they can refer back to that context, and actually trying to give the message that theres 50-odd thousand people working for the Met, most of whom strive to do a very good job, so having some balance in the headlines is a fair thing to asked [sic] for. 5.72 It was Sir Pauls perception that he did not favour any particular section of the media,946 although he admitted that there were complaints from journalists about the amount of access to him they were given.947 As to this, Sir Paul suggested that:948 I think if you look at the whole range of my engagement with the media, I think it will be difficult to make that allegation in terms of the way in which I divided my time. Sir Paul confirmed that during his tenure as Deputy Commissioner there were very few interactions with the press and none, in fact, with NI.949 Sir Paul explained that this was, in part, due to his lack of any previous background in the MPS; he said:950 I think we have to remember that I was this I hesitate to say exotic creature from the provinces suddenly arrived in London who nobody really knew, and it was quite a novelty having a deputy commissioner without any Metropolitan Police background or indeed any connectivity. So that might explain why I met fewer people; I knew fewer people. 5.73 The MPS gifts and hospitality register records that Sir Pauls interaction with the media slowly gathered pace as he moved towards taking the post of Commissioner.951 On becoming Commissioner in 2009, Sir Paul suggested that there was no hiding place952 in his dealings with the media and he began what he described as a strategy to acquaint himself with editors in different sections of the press.953 To provide a flavour of the level of Sir Pauls engagement with the media in 2009, he confirmed, for example, that he met with the editor of the Sunday Telegraph on 19 February; he had drinks with the editor of the Daily Telegraph on 10 March; he met with the Mirror Group on 18 March and with the editor-in-chief of the Daily Mail on 24 March. On 20 April, he had lunch with the editor of The Sun (at that stage Rebekah Wade, as she then was) in Wapping and on 28 April with Mr Witherow of The Sunday Times. There was a business dinner with Mr Myler, editor of the NoTW, on 14 May and a News Corporation reception at OXO Tower on 17 June. On 27 June, there was a meeting with Richard Littlejohn and Stephen Wright of the Daily Mail.954
p20, lines 2-21, ibid pp20-21, lines 22-4, ibid 948 pp20-21, lines 25-4, ibid 949 p22, lines 3-6, ibid 950 pp22-23, lines 24-5, ibid 951 Exhibit Sir Paul Stephenson Gifts and hospitality register, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Exhibit-SPS2-to-ws-of-Sir-Paul-Stephenson-20.02.12.pdf] 952 p25, line 16, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-5-March-2012.pdf 953 p26, lines 9-15, ibid 954 pp26-27, lines 1-5, Sir Paul Stephenson, ibid; MPS 61, John Yates meetings with the Media, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-MPS-61-John-Yates-meetings-with-the-Media.pdf
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5.74
The rest of that year followed a similar pattern with Sir Paul meeting with the majority of the national press,955 apart from the Northern & Shell titles, the Daily Express and the Star. As to this omission, Sir Paul explained:956 Its certainly not through any design I would certainly be guided by the head of [DPA], Mr Fedorcio, and my Chief of Staff as to who I should meet and when I should meet them. I cant think why we didnt meet with the editor of the Daily Express but its not something that I would go through and monitor and audit. But it does seem to me, when I look at it, it was generally a broad spread, but it does seem to me theyre absent. I did know the crime reporter from the Daily Express and met him quite a number of times, but he was quite a senior member of the Crime Reporters Association.
5.75
Sir Paul suggested that the reason for the sheer number of meetings with the media in the early part of his Commissionership was to enable him to introduce himself and his ideas to some very important opinion makers and commentators.957 He added to this and said:958 I think I would be a little nave if I thought that one meeting alone would suffice for my entire commissionership. I think some reinforcement is necessary in re-meeting [sic] various people because, whilst I might have an agenda in terms of how I saw the context of policing, I would then be conscious that editors would have their own views and that re-engagement was useful I can readily understand why this would have been a valuable exercise for Sir Paul, however, given the level of contact, there is the associated risk of a view being formed that there was, at least, the potential for too close a relationship with the media developing.
5.76
Sir Paul recognised this potential double-edged sword, but made a further entirely reasonable point when he said:959 There is a risk of perception That I will acknowledge. But I find it difficult to see how the Commissioner could do his job or her job properly without engaging pretty heavily with the media at the right level because if the reportage of the story of the Met continues to be unbalanced, which very often it is, then I have a duty on behalf of the 50,000-odd people I lead to try and continue to [affect] that balance to be a fairer balance and a more accurate balance.
5.77
Similarly, Sir Paul rejected any suggestion that the level of his contact with the media was, in some way, an attempt to seek to reduce the number of negative headlines and stories published relating to the MPS; he said:960 My experience of the media is one could have a perfectly good and decent relationship with an editor, but if there was bad news, there was bad news, and they would report it anyway if youd done something wrong, if youd got something wrong, that same paper would report it. It would be nave to think otherwise.
pp28-29, lines 23-6, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-5-March-2012.pdf; MPS 61, John Yates meetings with the Media, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-MPS-61-John-Yates-meetings-with-the-Media.pdf 956 pp35-36, lines 24-10, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-5-March-2012.pdf 957 p27, lines 6-24, ibid 958 p27, lines 14-24, ibid 959 p28, lines 2-10, ibid 960 p28, lines 15-22, ibid
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5.78
This evidence serves to underline the difficult tightrope that Commissioners of Police for the Metropolis have to walk. On the one hand, engagement with the press is an important part of the job for all the reasons that Sir Paul (and other Commissioners) have given. On the other hand, great care must be taken to ensure that the line is not crossed not only because of the possibility that a perception of proximity might be created but also because of the importance of providing an appropriate example to other ranks within the police service. News International and Neil Wallis
5.79
Sir Paul stated that approximately 30% of his engagements with media figures were with NI representatives, at a time when NI commanded some 42% of the total United Kingdom newspaper readership.961 Sir Paul said that he had met James Murdoch twice and Rupert Murdoch once. He met both James and Rupert Murdoch at a NI drinks party which was also attended by senior members of the Government, including the Prime Minister; he said that his conversation with James Murdoch at this function amounted to no more than cursory greetings.962 Dick Fedorcio advised Sir Paul which functions of this sort he should attend and was present alongside Sir Paul on this occasion.963 Sir Pauls list of meetings and engagements with the media record that during his tenure as Commissioner he had a meal once or twice with the editor of each NI title964; he also had lunch with Rebekah Brooks, then Chief Executive of NI, in 2010.965 Sir Paul recalled that he first met Mr Wallis, who was at that time deputy editor of the NoTW, in September 2006.966 A number of social or semi-social interactions followed this initial meeting,967 generally with Mr Fedorcio present; Sir Paul suggested that through these initial interactions he came to know Mr Wallis I think in the same way that youll see other media representatives Ive met several times, that Im getting to know them better.968 Sir Paul described the type of issues that would be discussed on one of these occasions:969 from a professional perspective, it would be about the context of policing, the way in which government policy might affect policing, the issues around resourcing, all the sort of things that one would wish to ensure that when people are reporting on policing, there was at least a context, a background, so they could judge in a fair and balanced way. I think it was that, but there would also be some social interaction as well, as there would be with anybody else I would meet.
5.80
p12, para 33, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-PaulStephenson2.pdf 962 p12, para 34, ibid 963 p12, para 34, ibid 964 MPS 61, John Yates meetings with the Media, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Exhibit-MPS-61-John-Yates-meetings-with-the-Media.pdf 965 pp32-33, lines 6-3, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-5-March-2012.pdf 966 p30, para 79, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-PaulStephenson2.pdf 967 p23, lines 6-18, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf; and Sir Paul Stephenson Gifts and hospitality register: not on the Inquiry website, but available on http://www.met.police.uk/foi/pdfs/disclosure_2011/may/2011030004623.pdf] 968 p24, lines 6-8, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-5-March-2012.pdf 969 p24, lines 13-22, ibid
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5.81
As has become clear, Mr Wallis was known to previous Commissioners,970 and Sir Paul considered him to be a good contact,971 because he was a commentator on how the Met looked.972 As Sir Paul explained, one of his purposes for seeking to engage with the media was:973 to continually seek feedback of how does the Met look. How do you see us at this time? I think thats part and parcel of the leadership, to ask people outside the Met, including media and people who have long experience of the media, of how they view the Met so that you can reflect on it. Despite this, Sir Paul suggested that he always took a cautious approach when meeting with Mr Wallis. He said:974 Outwith Mr Wallis, I would say for every journalist Ive ever met, they would be delighted if I was indiscreet. It was my job to ensure I wasnt.
5.82
During late 2009 and 2010 the MPS gifts and hospitality register and Sir Pauls diary itemise a number of what are described as private appointments with Mr Wallis,975 who by that stage had resigned from the NoTW.976 Sir Paul, for example, confirmed that he had attended a dinner with Mr Wallis and Mr Fedorcio in April 2010 at the Bbar restaurant; the dinner was marked as a private appointment and the diary records that no expenses were claimed. Sir Paul explained:977 I would have either paid the whole or my share for a drink. I was always uncomfortable with the idea not exclusively, but with the idea of billing the public purse for alcohol. So more often than not, I would pay if it wasnt being a gift and hospitality.
5.83
As to why this type of occasion was recorded at all given that there was no claim on the public purse, Sir Paul said:978 I think its better to be transparent and put as much in there as possible rather than leave things out. These matters were left to my private office and I think they did their level best to manage an extraordinary busy diary that changed on a daily basis, to try and record things so that it would not look like I was behaving in any way improper.
5.84
There is a discrepancy in the recollections of Sir Paul and Mr Wallis in respect of the level and nature of their contact. Mr Wallis suggested his relationship with Sir Paul essentially followed
p30, para 79, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-PaulStephenson2.pdf 971 p29, line 19, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-5-March-2012.pdf 972 p29, lines 19-20, Sir Paul Stephenson, ibid 973 pp29-30, lines 22-2, Sir Paul Stephenson, ibid 974 p25, lines 2-4, Sir Paul Stephenson, ibid 975 p29, lines 7-17, Sir Paul Stephenson, ibid; and Exhibit Sir Paul Stephenson Gifts and hospitality register, not on the Inquiry website, but available on DN: http://www.met.police.uk/foi/pdfs/disclosure_2011/may/2011030004623. pdf 976 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-Neil-Wallis.pdf 977 p30, lines 20-24, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf 978 p31, lines 3-9, Sir Paul Stephenson, ibid
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the same blueprint as my relationship with Sir John Stevens.979 This included his providing Sir Paul with advice relating to his campaign to become Commissioner; he said that:980 if we were together and the subject came up, I would tell him my view If it came up, he asked my opinion, and I have opinions, so I wouldnt have been hesitant about sharing them. Mr Wallis said that he met Sir Paul approximately six times a year while he was the Commissioner, and that these occasions would be for dinner and also for the odd glass of wine. He also estimates that he spoke to Sir Paul over the telephone on average about once a month.981 5.85 Mr Wallis describes the basis of his contact with Sir Paul as being the provision of informal PR advice, unpaid and often solicited by him.982 Mr Wallis refuted any suggestions that he had exaggerated the level and nature of his contact with Sir Paul, saying, I think what Ive put in my statement was my memory of it. If his memory of it is different, then thats unfortunate.983 For his part, Sir Paul said of Mr Wallis:984 I think over the months hes become an acquaintance. His company would have been enjoyable, like other people, but to say I was a friend, I think that would be taking it too far As to the level of his contact with Mr Wallis, Sir Paul said:985 I met Mr Wallis, I think, on the records once in 2008, three times in 2009 and twice in 2010, according to the records. 5.86 Sir Paul was absent from work through injury and illness between mid-December 2010 and early April 2011.986 Operation Weeting had commenced during his period of absence987 and Sir Paul described his general stance towards NI on his return:988 I wouldnt have refused to engage with anybody from News International, but I do think that once Weeting was mounted. I was briefed on it briefly when I returned and realised that this was of a different order than wed, for whatever reason, realised before. Id have been much more circumspect in meeting with News International, yes.
p8, para 1(c), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-NeilWallis.pdf 980 pp101-103, lines 23-4, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-2-April-2012.pdf 981 p8, para 1(c), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Second-Witness-Statement-of-NeilWallis.pdf 982 ibid 983 p103, lines 23-25, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-2-April-2012.pdf 984 p31, lines 14-17, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf 985 p35, lines 11-18, ibid 986 p34, lines 4-7, ibid 987 Part E Chapter 5 988 p34, lines 12-18, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf
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5.87
Specifically in respect of Mr Wallis, Sir Paul acknowledged that following his return to work in April 2011 he:989 wouldnt have wanted to do anything to compromise Weeting by a significant change in behaviour that allowed somebody who may be become a suspect to suddenly see that and start making preparations, but I think it is fair to say that I think it would have been rather clumsy to meet with Mr Wallis after his name entered into my consciousness around these matters. I think that would have been a little clumsy, so I would have tried to avoid that. Champneys
5.88
In the event, this incident is entirely irrelevant to the Inquiry but given the allegations which swirled around Sir Paul at the time when this Inquiry was set up, it is necessary to address the issue. Additionally, it forms the background to Sir Pauls resignation as Commissioner of the MPS in July 2011. In short, Sir Paul underwent surgery to remove a cancerous tumour from within his femur; this was followed by his accidental fracture of the same bone.990 In January 2011, he accepted an offer to stay at Champneys that was made as an act of kindness by the owner, Steven Purdue, a business acquaintance and close friend of his daughters father-inlaw.991 Sir Paul explained that although this was a private arrangement through a family friend, and Champneys Healthcare had no procurement history or activity with the MPS, he nevertheless instructed that it be entered into the Gifts and Hospitality Register.992 The entry, made on 4 March 2011, was as follows:993 Provision of accommodation and food at Champneys Medical over five-week period in support of post-operative rehabilitation (provided by a friend through Sir Pauls family and not in connection with the office of Commissioner). The register, at Sir Pauls insistence, also noted the person concerned, Stephen Purdue.994
5.89
G
5.90
Sir Paul described his rationale for accepting the offer to stay at Champneys, he said:995 I was made the offer, through a close friend of my daughters father-in-law, somebody I knew, to assist. Hed heard about my illness and he wanted to assist. I have to say I was initially reluctant to accept it because I think one is generally reluctant very often to accept a very kind offer, but its also the case that I was advised medically that I wasnt fit at that time to attend any other rehabilitative facility. I was still in a wheelchair and still on significant medication, and this possibly represented my best chance of getting back to work as early as possible. Thats the reason I did it I felt under significant pressure to get back to work. I think in total I was off for the
p35, lines 2-18, ibid p17, para 45, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-PaulStephenson2.pdf 991 p33, lines 14-15, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-5-March-2012.pdf; p17, para 45, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Witness-Statement-of-Sir-Paul-Stephenson2.pdf 992 pp18-19, para 50, ibid 993 p32, lines 19-24, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf 994 pp32-33, lines 25-3, ibid 995 pp40-41, lines 12-16, ibid
990
989
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best part of four months. I felt under significant personal pressure to return to work as soon as possible, and my clear view was: if I didnt get back within that time, then I wouldnt go back at all, because I do not think you can leave an organisation like the Met, as good as your deputy is and I think he did a fabulous job in my absence, but I do not think the leader of the Met can be absent for any longer than that and already there was reporting in the media about the absence of the Commissioner and the effect it was having on the Met. I felt I had to get back quickly. If I didnt, I wasnt going to get back at all and I desperately wanted to come back. 5.91 It transpired that Champneys had in the past engaged Chamy Media, the public relations firm that Mr Wallis had set up after he left the NoTW, in order to provide it with strategic communication advice and support it. Sir Paul explained that he had no knowledge of any connection between Mr Wallis and Champneys either before or during his stay, and he was not aware of anyone at the MPS who would have been aware of such a connection.996 Sir Paul stated that he first became aware of the link between Mr Wallis and Champneys on the morning of 16 July 2011, following a telephone call from a member of the DPA after there had been a media enquiry about it.997 Despite his previous lack of knowledge of any connection between Mr Wallis and Champneys, Sir Paul explained why the disclosure of this information precipitated his resignation:998 Ive always held a view and the view was very much influenced by my experience as Deputy Commissioner that if the story becomes about the leader as opposed to what we do, then that is a bad place to be. For whatever reason, thats where I seemed to be He added that:999 I think in different circumstances, had I not had the health issue, without wishing to over play it, I might have come to a different conclusion, but it was clear to me that my reaction to the pressures was not in the same way Id reacted to many pressures in the past and I didnt think I had any alternative out of all sense of honour. 5.93 Sir Paul described the connection between Mr Wallis and Champneys as damnably unlucky1000 and I fully agree with that assessment. Any suggestion that Sir Pauls stay at Champneys was in some way influenced by its connection with Mr Wallis, or that this was a reward in kind from Mr Wallis for previous favours, is simply not borne out by any consideration of the facts. There is no evidence that Mr Wallis played any role in these events, and this would appear simply to be an unfortunate confluence of circumstances. The Home Secretary and the Mayor of London both expressed surprise and regret at the resignation; Sir Paul described how they expressed full support for him to stay in office.1001 For her part, the Home Secretary said:1002 Id already had a conversation that weekend with Sir Paul when hed spoken to me
p19, para 51,http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-PaulStephenson2.pdf 997 p19, para 51, ibid 998 p42, lines 14-19, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf 999 p43, lines 13-19, Sir Paul Stephenson, ibid 1000 p42, lines 8-9, Sir Paul Stephenson, ibid 1001 p53, para 128, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-PaulStephenson2.pdf 1002 p73, lines 6-19, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-29-May-2012.pdf
996
5.92
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about the allegations that appeared in the newspaper about his stay at Champneys and therefore hed given no hint in that conversation at a possible resignation, therefore when he rang me later that weekend to say that he had resigned, obviously that was a surprising turn of events. I feel that he led the Metropolitan Police well when he was Commissioner, and I think the organisation at the end of it was stronger for his leadership and it was in that context that I expressed regret that matters had come to this point. 5.94 Similarly, the Deputy Mayor for Policing, Kit Malthouse did not see any reason why Sir Paul had to resign and said:1003 I had been reassured by him and Mr Godwin that the coincidence of the Champneys hospitality and the involvement of Mr Wallis in the PR of that particular establishment was unfortunate, but that the two together had created a perception which Sir Paul obviously didnt feel he could live with. I personally felt that the good of the organisation and the good of the city, in terms of keeping it safe, outweighed that particular consideration. 5.95 This part of the story can be concluded with further words from Mr Malthouse who added:1004 I dont think Im revealing too much confidence in that it became apparent to me that Sir Paul Stephenson was completely shocked when it was revealed that Wallis was involved in Champneys. It seemed to take him totally by surprise, and therefore the coincidence of those two, which ultimately created the public perception which Sir Paul didnt feel he could continue with, seemed very unfortunate. Unfair.
6. Calibrating the harm: the views of Commissioners G

6.1
Lord Condon
In putting this part of the Inquiry into context, Lord Condon described the history of police malpractice as being cyclical in nature, with the cycle generally taking place over a twenty year period and being something akin to scandal, inquiry, remedial action, relaxation, complacency, scandal, inquiry.1005 Against this backdrop, Lord Condon gave his general views, based on the evidence provided to this part of the Inquiry, about the way in which the relationship between the police and the press had altered since his Commissionership:1006 Based on what is in the public domain, primarily from what has happened in your Inquiry I have been very disappointed and concerned by some of the issues that have emerged, and had I still been involved in the service, I would have been probably very angry. 6.3
1003
6.2
In analysing the altering in the relationship between the press and the police, Lord Condon rightly acknowledged the transformational advances in personal communications and the
pp51-52, lines 19-6, Kit Malthouse, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-29-March-2012.pdf 1004 p52, lines 14-21, ibid 1005 p47, lines 18-21, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 1006 p46, lines 18-23, ibid
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ability of the Police Service and the media to interact ethically and unethically since his time as Commissioner. However, he suggested that some things were enduring and transcended technology or ephemeral crises.1007 6.4 When considering the extent to which the relationship was in need of recalibration, and the methods by which that might be achieved, Lord Condon cautioned against a massive box ticking or bureaucratic approach to any reform.1008 Lord Condon also suggested that the very public nature of this Inquiry had already generated massive corrective action1009 within the Police Service, and said:1010 its a question of what more needs to be done to be built on that, and so I think I would be confident that the Police Service now already feels very different around these issues than it did in the recent, very recent past. I would think that behaviour is fundamentally different now than even the very recent past. And so I would be worried about anything which suggested that any contact between police and the media was almost inherently wrong, that the media are given some sort of pariah status, that almost by being in the same room as them is somehow bad, and a massive box-ticking, that every time a policeman was in the same room or within 50 yards of a journalist, they should have to write up an entry they would probably do it electronically now, but some sort of record. So I think there could be a massive bureaucratic overreaction which wont actually help anyone but will be seen as some sort of generalised panacea to the challenge. I think it is about strong leadership, it is about clear guidance, and its about the culture of the organisation 6.5 That being said, Lord Condon recognised the danger of simply accepting that the mere existence of the Inquiry had in fact provided a solution to some of the very important issues raised by the evidence that has been heard. This is particularly true given his diagnosis of the Police Services historical cycle of malpractice, for he went on to conclude:1011 history tells us that unless your report [the final Inquiry report] has within it things which are not ephemeral but are enduring, that do demand checks, that do demand action, that do allow auditing and monitoring and checking of these relationships, then the default position is in 10, 15 years time to get to that complacency point on that cycle again I think the challenge is to find that something which avoids the massive bureaucracy, which will be superficial, and something that really hits the spot, that does encourage change that is lasting there are issues around very strong national guidance around police behaviour in relation to the media, reinforcement of what is appropriate, condemnation of what is wrong, and so on.
Lord Stevens
6.6 Although recognising the difficulty in providing an accurate commentary on the current relationship between the MPS and the media given his retirement from the Police Service in 2005, Lord Stevens felt that the culture between the two had changed significantly and understandably in light of the events which precipitated this Inquiry. His perception was
1007
p24, para 67, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-LordCondon.pdf 1008 ibid 1009 p43, lines 22-25, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 1010 pp43-44, lines 22-25, ibid 1011 pp48-49, lines 8-3, ibid
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that the Police Service as a whole was now highly sensitive. He felt that any contact or relationship with the press was likely to be adversely construed and lead to criticism although, parenthetically, he accepted that this was perhaps inevitable given that one of the allegations made against the police had been that there had previously been an overly close relationship with the media.1012 6.7 Lord Stevens considered this state of affairs to be extremely damaging for British policing given his view that it was absolutely essential to have transparency and openness. He said:1013 What Ive heard, people are absolutely terrified of picking up a phone or speaking to the press in any way, [shame sic] shape or form and I dont think thats healthy. The press have a job to do. They deliver, on occasions, some outstanding work, especially investigative journalism sometimes. There has to be a relationship between the police and the media for the right reasons. 6.8 Lord Stevens assertion that it is absolutely essential for there to be transparent and open relationship between the police, the press and the public is a view that I both share and endorse. Perhaps, however, he went one stage further by suggesting that there may be a causal relationship between the heightening of community tensions and public concern over the actions of the police exacerbated by a lack of community engagement through the media.1014 Lord Stevens told the Inquiry:1015 in my time as Commissioner, I had two high profile shootings, one down at Brixton and the other was, of course, Mr Stanley at Hackney. One, its very important to get down there as quickly as you can and sometimes take a fair bit of abuse, as I certainly did in Hackney when I went down there. But secondly, you have to get your message out through the media, which most people are looking at, especially in this day and age in terms of Twitter and the rapidity of communication. If you do not deal with that very, very quickly indeed, in terms of saying why you have been involved in a shooting or why youve done the actions youve done, then the whole thing will just escalate in a way that leads to massive public disorder, and any kind of research and knowledge of what takes place in these issues, whether it be in America or other parts of the world, comes out with a specific lesson that the message must be out there as quickly as you can of why the police did what they did and the media have to be the major part of doing that. 6.9 Lord Stevens concluded his evidence by summarising the current position in light of the evidence heard by the Inquiry with an eye also on the future policing landscape. He said:1016 Im sure everyone believes in freedom of the press, but there needs to be some structure and some monitoring processes Something has to come out in terms of the monitoring and some kind of reinforcement of how the police act, I think.
1012
pp99-100, lines 24-4, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf; p18, para 51, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Witness-Statement-of-Lord-Stevens.pdf 1013 p99, lines 16-23, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 1014 pp18-19, paras 52-53, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-ofLord-Stevens.pdf 1015 pp100-101, lines 5-6, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 1016 p14, lines 4-10, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-6-March-2012.pdf
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Lord Blair
6.10 Lord Blairs general reaction to evidence provided to the Inquiry was similar to that of Lord Condon, for he said:1017 If youre referring to the level of contact with the media, then yes, I have concerns about that and I particularly have concerns, if its true, and I believe it is that there were a large number of dinners and large amounts of alcohol, and that would worry me. Lord Blair described the overarching nature of his concerns in these terms:1018 I think its twofold. One is the perception not only of the public but of the more junior officers, who must look at this and wonder whether this is a proper use of public time and public money. And secondly, the very perception that it is very difficult not to put these two situations together in terms of the failure to investigate [a reference to Operation Caryatid] and the levels of contact, and not see a reference between them 6.11 As for a solution to the issues raised by this part of the Inquiry, Lord Blair questioned whether further specific guidance, other than a requirement for absolute transparency, was necessary. He argued that the more complicated the codes of conduct or practice in any organisation become, the more complex is the task of enforcing them. Lord Blair stressed that it was important that any regulation did not become too over-prescriptive and said that what mattered more was the establishment of proper boundaries and the inculcation of a culture that would then impose an expectation that officers would act professionally and responsibly. Moreover, he suggested that any set of regulations covering the media would rapidly be overtaken by the developments of social media and citizen journalism. Lord Blair therefore argued for a set of principles which would guide practice.1019 Lord Blair expanded on this point and told the Inquiry:1020 I am of the view that for too much of the polices time over the years there has been an emphasis on disciplinary codes and regulations rather than on the values of the organisation. One of the things that I did when I became Commissioner was to ask 5,000 members of staff what kind of organisation they wanted to belong to and what should its values be, and that was what we used in terms of the training of our senior officers, the transformational values of an organisation, and I would want to emphasise that its this aspiration to professional propriety that seems to me to be so important, rather than a set of regulations about what you mustnt do. 6.13 In making this point, Lord Blair acknowledged the extreme difficulty in achieving a cultural shift, particularly in an organisation as large as the Police Service, and agreed therefore that what may be required was a combination of that element with some clear ground rules which were not overly prescriptive and thereby, because of their complexity, unworkable.1021
6.12
1017
pp76-77, lines 24-4, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-7-March-2012.pdf 1018 p77, lines 7-15, ibid 1019 pp28-29, para 67, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-LordBlair.pdf 1020 p81, lines 7-20, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-MorningHearing-7-March-2012.pdf 1021 pp81-82, lines 21-13, ibid
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Sir Paul Stephenson

6.14 Sir Paul considered HMICs report Without Fear or Favour A review of police relationships to be a sound piece of work and he agreed with the conclusions contained within.1022 In moving forward, Sir Paul argued that the issue was one of personal and organisational values, professionalism and integrity accompanied by effective communication and appropriate checks and balances for the creation and maintenance of confidence.1023 This he suggested must come from within the Police Service and could not be imposed from outside.1024
Commissioner Hogan-Howe
6.15 Commissioner Hogan-Howe reinforced Lord Stevens view that the future relationship between the police and the media must be based on a principle of openness. This, he suggested, would allow the public and their representatives to hold the police to account for their relationships with the media and would also serve to remove any suspicion about that relationship.1025 The Commissioner candidly admitted in his evidence to the Inquiry that concerns about the relationship between the MPS and the press generally were clearly an issue on his arrival into the role in September 2011.1026 The Commissioner confirmed that there was an organisational concern that the relationship between certain sections of the MPS and the media had become overly close, and that view corresponded with feedback the organisation was receiving both internally and externally. He said:1027 That was the concern that seemed to be in the public mind. I think even within the Met there were concerns about that. I think people have acknowledged that over time although, in my view, the policy I think Sir John, now Lord Stevens, had established during his time, I think, in spirit was the right spirit, that probably the practice of that strategy had led to too close a relationship with the press, and that was the feedback I was getting both from within the organisation and from those who cared about it from the outside. 6.17 Given these facts, Commissioner Hogan-Howe acknowledged that there was a clear need to review the existing procedures governing the relationship between the MPS and the media.1028 He also put forward his belief that as an organisation, the MPS had already begun to reset that relationship in the recognition that in future it needed to be more open and transparent with the public.1029 In seeking to tackle these wider organisational issues, Commissioner Hogan-Howe accepted the broader point that the relationship of the police with the media was only one element of the problem and that, to truly bring about long lasting cultural change, the Police Service
6.16
6.18
1022
p42, para 107, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-PaulStephenson2.pdf 1023 p42, para 108, ibid 1024 ibid 1025 p10, para 22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-ofCommissioner-Bernard-Hogan-Howe1.pdf 1026 p2, lines 2-25, Commissioner Bernard Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-20-March-2012.pdf 1027 p4, lines 3-13, Commissioner Bernard Hogan-Howe, ibid 1028 p10, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-ofCommissioner-Bernard-Hogan-Howe1.pdf 1029 p12, para 28, ibid
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generally must have a clear sense of what was right and what was wrong. He expanded on this point and said:1030 I think Elizabeth Filkin says if we only concentrate on our relationship with the press, we will probably miss the point in terms of some of the issues we have to address. So I accept that broad point. This is a symptom of something that we have to address. I suppose we have many guides in coming to that integrity issue of what standard do we apply. So we have the Nolan principles. We have the oath that we swear to uphold the palace impartially. And ACPO has carried out various pieces of work about ethics. So therefore there is a body of knowledge which we can use as points for referral, but I dont think theyre too unique. You can say that, but Im not sure theyre unique to the police. I think there are other organisations which would observe similar principles of integrity and probity. So for me thats important. Probably the second point for me is that I know Im going to refer a little to Merseyside, but Ive only been back in the Met for a few months, so my most profound experience of leading an organisation was in Merseyside, but within a year wed come to our own judgment about what our values were and the only guide I gave was I didnt want us to have more than four. You can have a long list which no one can remember or you can have some that can really guide people in the moral dilemmas that sometimes policing delivers. So we agreed four that the organisation consulted on and we came up with four that certainly I could stand by, and well do something similar in the Met. Im not sure its right always to impose values, but I think there are things that you, as an organisation, stand for
7. The question of corruption

7.1 In setting the historical context to this issue, Lord Condon observed that:1031 History suggests that corruption in the MPS is cyclical. Sir Robert Mark as Commissioner confronted this issue and 20 years later I was confronted with a similar challenge. Lord Condon went on to explain that within days of taking office he was made aware by his senior team of the challenges the organisation faced. He also described the types of corruption that were identified:1032 in any major big city police service in the world, whether its London or equivalent major cities anywhere in the world, there will always be a small number of police officers, sadly, who are drawn into corrupt criminal practice, and it can vary from relatively minor right the way up to the most serious criminal offences. 7.2 The corruption described by Lord Condon was motivated primarily by financial gain and was not, at this stage, linked to the media.1033 He explained that from taking office in 1993, it took him until 1997/98 successfully to lobby for changes to the police disciplinary regulations to make it easier to deal with corrupt officers:1034
1030
pp42-43, lines 4-11, Commissioner Bernard Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-20-March-2012.pdf 1031 para 48, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Condon.pdf 1032 pp4-5, lines 20-1, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 1033 p5, lines 6-18, Lord Condon, ibid 1034 pp5-6, lines 25-13, Lord Condon, ibid
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Part of my agreeing to become Commissioner was an acceptance that I wanted to be and needed to be a reforming Commissioner around a number of issues. One of them was police discipline, which I felt at the time made it very difficult or unnecessarily and unwisely difficult to deal with bad officers Via evidence to the Home Affairs Select Committee and lobbying politicians and the media generally the police discipline regulations were eventually changed, for the better, I believe, in the public interest, and it took until 1999, and then the amended police regulations made it easier to deal with bad officers. 7.3 Lord Condon also introduced a number of policies aimed at maintaining integrity within the MPS which culminated in the launch of an anti corruption strategy in December 1998. It was contained in Special Notice 36/1998, Corruption and Dishonesty Prevention Strategy.1035 In relation to the strategy, he said:1036 this was really the culmination of a number of years. 1997, 1998 were particularly busy Early in 1998, I remember, with warrants, we raided the homes of about 30 serving and retired police officers and started some major corruption inquiries into criminal matters. And then I wanted, before the end of 1998, to draw together in one document our ongoing determination to deal with malpractice, however it manifested itself, and so this document, clearly though not perfect, was an attempt to bring together and make it absolutely clear to people what the rules of engagement were. 7.4 An anti-corruption strategy was certainly not a new concept within the Police Service and other versions had existed prior to the implementation of this particular Special Notice.1037 As Lord Condon explained:1038 All police forces are against corruption, arent they? They wouldnt be for it. And so Im not being trite, but there would have been rules in all police forces at all times which would embrace the criminal law for dealing with criminal behaviour by police officers. There would have been disciplinary measures. But this was bringing it together in a special order, reinforcing the importance of it, rebriefing every senior officer in the service, down to and including chief superintendents, with briefings about what we were doing, how serious we were, and then briefings beyond that, so that everyone in the Met, by the end of 1998, would have been in no doubt, in no doubt, how serious we were about dealing with these issues. 7.5 The strategy identified six strands Prevention and Detection; Inclusion; Focus and Accountability; Supervision and Leadership; Security, Screening and Vetting; and Corruption and Dishonesty Proofing. Each strand identified a number of delivery objectives with the initial phase designed to last three years. The philosophy of the strategy was that the MPS will continuously invest effort and resources into assuring the highest levels of integrity for all time.1039 Lord Condon confirmed that the strategy had been intended to last beyond
pp6-7, lines 14-21, Lord Condon, ibid; Special Notice 36/98, Metropolitan Police Service Corruption and Dishonesty Prevention Strategy (December 1998), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ MPS-26-Special-Notice-36-98-MPS-Corruption-and-Dishonesty-Prevention-Strategy.pdf 1036 p8, lines 10-23, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 1037 p8, line 25, ibid 1038 pp8-26, lines 25-13, ibid 1039 Special Notice 36/98, Metropolitan Police Service Corruption and Dishonesty Prevention Strategy (December 1998), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-26-Special-Notice-36-98-MPSCorruption-and-Dishonesty-Prevention-Strategy.pdf
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his tenure as Commissioner. His successor to that role, Lord Stevens, had been Deputy Commissioner at the time that the policy was promulgated and was said by Lord Condon to have been fully supportive of it and carried it forward.1040 As to whether he believed it to have been a success, Lord Condon said:1041 Yes, I believe it was. If it hadnt been, I would have taken, with senior colleagues, remedial action. I honestly believed at the time that this was probably one of the most demanding and appropriate sets of policies for dealing with malpractice of any major city in the world, and in fact we were visited by police forces from around the world who sought to replicate parts of it. 7.6 Lord Stevens explained that having been appointed Deputy Commissioner of the MPS in 1998, he had been given specific responsibility for the modernisation of the organisation and for overseeing the fight against corruption within the MPS.1042 On becoming Commissioner, Lord Stevens recorded that there were concerns within the organisation about bribery of personnel by the media and suggested that it had been a continual battle to fight this form of corruption.1043 He said:1044 Corruption is always there in a Police Service the size of the Metropolitan Police, and every now and again I was hearing stories that people either within the service or who had retired from the service might well be paid for newspaper reports, or tipping people off as to where certain raids were taking place, and therefore a strong anticorruption strategy and squad was essential. 7.7 Lord Stevens explained that the concerns were expressed at quite a high level of generality and did not relate to any specific sections of the media. Despite these ongoing concerns, Lord Stevens believed that the Corruption and Dishonesty Prevention Strategy implemented during Lord Condons period as Commissioner had achieved a great deal, and had brought about a change in culture through making sure there was a process by which corruption could be reported and ensuring that any personnel involved were arrested and prosecuted.1045 During the course of the Inquiry there were a small number of references to historic corruption within the Police Service. Sir Harold Evans, former editor of The Times, gave evidence that The Times had made a surreptitious recording of a transaction:1046 between a corrupt policeman and a crook, and that led to the complete reform of Scotland Yard, and then Sir Robert came in, Robert Mark came in, and Scotland Yard began rooting out really massive corruption 7.9 Perhaps of more relevance to the Inquiry was the evidence of Jeff Edwards, former chief crime correspondent of the Daily Mirror, who alleged that whilst working as a staff reporter for the NoTW (he worked for that newspaper between 1981 and 1985) he was in effect asked to use
7.8
1040
p11, lines 1-6, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 1041 p12, lines 16-23, ibid 1042 pp3-4, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-LordStevens.pdf 1043 pp30-31, para 84, ibid 1044 p109, lines 6-13, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 1045 p31, para 86, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-LordStevens.pdf 1046 p6, lines 8-20, Sir Harold Evans, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-17-May-20124.pdf
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the newspapers funds to bribe police officers for information. He suggested that this had taken place in late 1983 or the beginning of 1984 and described the circumstances relating to the request: 1047 the world of working in a Sunday paper environment is quite different from that, I discovered, working for, say, a London evening paper, as I had been previously, and I found the adjustment quite difficult. And it became apparent, I suppose, that I wasnt doing the job to the satisfaction of my then boss, my news editor, and he became quite animated about this issue and we had a discussion one day its one of these things that you never forget, frankly, and he said to me, Look, you have to up your game, you have to up your performance, and I said, Well, its really difficult. You know, Im struggling to make the adjustment to this different world and so forth, and he said to me, Look, theres money available; you should be out there spending it on your contacts I cant remember exactly how the dialogue flowed now, but I said, Im sorry, but are you suggesting? and he said, Well, you know, you need to sort of put some inducements out there, and I said, Right, okay, and I sort of recoiled from this, but he was my boss so I dealt with it in a measured way and I went away and I thought: did I hear this correctly? Anyway, about three or four weeks later, clearly my performance was still not satisfactory, and he took me to one side and he was quite cross me, I suppose its fair to say, and he said to me, Look, have you taken up my suggestion? I dont see anything here. Youre not invoicing me for money to be splashed about. You should be essentially bribing more police officers. At the time, and I realised it was probably an unwise thing to do, but I said, I dont think I came into journalism to do that sort of thing, and also, isnt there a contradiction here? Part of what were about is exposing wrongdoing in public life, and here you are suggesting you know, anyway clearly the debate was over at that point, and a couple of weeks later I was removed from the post and replaced. I wasnt removed from the company, I was simply moved to work away from crime reporting. It was 30 years ago, I cant talk about how things proceeded after that, but I thought it was indicative of the culture in that particular organisation at the time. 7.10 This reported exchange would appear to suggest that the practice of providing inducements to police officers was relatively commonplace at that time, although Mr Edwards asserted that he did not observe any of his colleagues participate in such behaviour.1048 Given that nearly 30 years have elapsed since this purported incident took place, I provide it as a historical illustration only. It is certainly not evidence of a culture that currently exists within the Police Service or the media, although recent events (investigated in Operation Elveden) suggest that there remain legitimate concerns that payments by journalists to police officers have continued in some form. Of a more contemporaneous nature was the evidence of Bob Quick. Mr Quick joined the MPS as a police officer in 1978 and served in a variety of roles during his career in the Police Service.1049 Of most relevance to this section of the Report was his time spent within the MPS Anti-Corruption Command. In 1999, Mr Quick was appointed Detective Superintendent Operations at the newly formed Anti-Corruption Squad, and then in February 2000 he was appointed the Commander of CIB, which included the investigation arm of Anti-Corruption
7.11
1047
pp105-107, lines 10-2, Jeff Edwards, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-14-March-2012.pdf 1048 p107, lines 3-7, ibid 1049 pp1-3, paras 1-7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-BobQuick.pdf
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Command and Complaints within the MPS.1050 The new Command was established in response to significant intelligence indicating serious corruption was being perpetrated by a minority of officers within the MPS.1051 Mr Quick explained that through a long term covert operation named Operation Othona, which ran between 1993 and 1998, a strategic picture of the corruption threat within the MPS was formed. One of the identified threats was the unauthorised disclosure of sensitive information by police officers to journalists for payment.1052 7.12 Of direct relevance to this threat was Operation Nigeria, a covert investigation conducted by Anti-Corruption Command during 1999, which infiltrated the office premises of a private detective agency, one of the proprietors of which was a former police officer. Mr Quick explained that during the course of Operation Nigeria, it became clear that, amongst other activities, the agency was acting as a clearing house for stories for certain newspapers. He suggested that many of the stories were being leaked by police officers who were already suspected of corruption, or by unknown officers connected to officers suspected of corruption, who were found to have a relationship with Southern Investigations.1053 To the best of Mr Quicks recollection, this involved newspapers from more than one group.1054 He said:1055 During the operation it became clear that officers were being paid sums of between 500 and 2,000 for stories about celebrities, politicians, and the Royal Family, as well as police investigations. 7.13 Mr Quick explained that as a result of the intelligence garnered from Operation Nigeria, in about 2000, he had written a short report highlighting the role of journalists in promoting corrupt relationships with, and making corrupt payments to, police officers for stories about famous people and high profile investigations in the MPS.1056 Given the passage of time the report is no longer available, however, Mr Quick described his purpose in writing it:1057 I and others in my command became concerned about these relationships between journalists and police officers who were suspected of corruption, and it became apparent that some officers were being bribed to provide stories; some of the officers were providing them directly or from their own contacts within the Metropolitan Police, and I formed the view that that was a threat to the organisation and compiled a short report, to my recollection, proposing that we might deal with that by way of an investigation that looked at the financial transactions. 7.14 Furthermore, Mr Quick said that he believed:1058 that the journalists that were paying the bribes were not paying them from their own funds, and the intelligence and evidence revealed payments of between 500 and 2,000, and therefore we believed that they were claiming that money back from their employers, and that one of two possibilities arose: that they were falsely claiming that money back by purporting it to be for a reason other than payments
1050 1051
p1, para 2, ibid pp3-4, para 8, ibid 1052 pp3-4, para 8, ibid 1053 p4, para 9, ibid 1054 p86, lines 2-8, Bob Quick, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-MorningHearing-7-March-2012.pdf 1055 p4, para 9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Bob-Quick.pdf 1056 p5, para 12, ibid 1057 pp87-88, lines 21-6, Bob Quick, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-7-March-2012.pdf 1058 p88, lines 10-19, Bob Quick, ibid
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to police officers, or indeed the newspapers were in some way complicit in those payments. 7.15 Mr Quick recalled that he submitted the report to Andy Hayman, who was at that time his direct report as the head of the MPS Professional Standards Department.1059 Mr Quick said that Mr Hayman had reservations based on potential evidential difficulties pertaining to privileged material (journalistic material).1060 As has become clear, similar concerns were advanced in relation to Operation Caryatid and the application of PACE.1061 Mr Quick was unable to say whether Mr Hayman referred this issue further up the command chain although I was under the impression he had.1062 He said:1063 it was an issue that he took time to think about, and I think the conversation went over a number of days, if not more than that, and I do recall a conversation with Commander Hayman about the evidential challenges. Did we have a perfect case upon which to launch the investigation? Well, no, but we certainly had material that gave us a very strong suspicion that these journalists were making these payments, and therefore we debated the strength of the evidence and some of the complexities related to journalistic privilege or journalistic material. I was of the view that the offences we were looking at were essentially fraud offences and that it wouldnt necessarily offer any protection or be relevant, but in the end the discussion resulted in the decision that at that moment in time it was too risky to launch an investigation at that time. 7.17 Mr Quick made clear that he felt that Mr Hayman was entirely sincere in his reservations at the time but he did not necessarily agree with his conclusions:1064 I dont think we agreed. I proposed it firmly in the belief that there was a line of inquiry into what appeared to be a significant threat to the integrity of the organisation. I accept there were many practicalities and risks with taking that action, and I do feel that Commander Hayman prosecuted his arguments with all sincerity. Beyond what he had learnt through Operation Nigeria, Mr Quick said that by the end of 2000 it was his belief that there was a common understanding within the MPS of the threat that tabloid journalists posed to the integrity of police officers. He said that there was a considerable ground to believe that journalists from tabloid newspapers were:1065 corrupters, driven by intense competitive pressures to use unethical and unlawful means to secure stories that included corrupting police officers through payments. 7.18 Mr Quick went on to say: 1066 I think to the best of my recollection the Metropolitan Police had accumulated a
1059
7.16
pp5-6, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Bob-Quick.
pdf
pp5-6, para 13, ibid Part E Chapter 4 1062 pp5-6, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Bob-Quick. pdf 1063 p89, lines 8-24, Bob Quick, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-7-March-2012.pdf 1064 pp89-90, lines 25-11, Bob Quick, ibid 1065 p6, para 15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Bob-Quick.pdf 1066 pp91-92, lines 14-2, Bob Quick, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-7-March-2012.pdf
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1060
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huge volume of intelligence relating to the integrity of the organisation from a wide range of sources. Wed had the Operation Othona running for five years, and as time passed, a picture began to emerge of a serious threat involving ex-officers who had left the service, possibly having been prosecuted or left after a discipline case, and journalists, so the officers that had moved into the private investigation arena, and there was an example here with [this private detective agency], but there were others, and journalists, and the trading of stories. And that picture slowly emerged in the late 1990s and early part of the last decade. 7.19 The behaviour referred to was frank corruption, that is to say a belief was formed that money was changing hands for stories. It would appear that this threat has not dissipated over time. From a perception standpoint (albeit again with the benefit of hindsight), it is perhaps concerning that this historical understanding of the threat posed by the nexus between serving or former police officers and journalists, and the methods by which certain journalists were obtaining stories was not heeded, particularly in the context of Operation Caryatid and the polices understanding of the scale of the problem during the course of that investigation.1067 Moving matters forward, the extensive scrutiny of how the police handled the phone hacking affair understandably led to concerns about police integrity and corruption more generally. As I have already covered in various sections of the Report, a series of reports were commissioned in parallel to this Inquiry: one from Her Majestys Chief Inspector of Constabulary on police integrity; one from Elizabeth Filkin on the relationship between the MPS and the media; and the IPCC were asked by the Home Secretary to report on its experience of investigating complaints of police corruption. Her Majestys Inspector of Constabulary, Roger Baker, informed the Inquiry that HMIC, through its review, did not find:1068 evidence to support any contention of endemic corruption in Police Service relationships, either in relation to the media or more generally, with the majority of police officers and staff striving to act with integrity. However, HMIC concluded that many forces were insufficiently risk aware. He identified as specific weaknesses the absence of clear boundaries regarding outside relationships and the lack of consistent standards, policies and procedures across forces.1069 In so doing, Mr Baker noted the importance of public perception as well as the reality, and called for a nationally agreed approach to proactive governance and oversight of this issue.1070 7.22 The ACPO lead on Professional Standards, Chief Constable Mike Cunningham, said that he believed that the out and out bribery of police personnel by the media was confined to rare and isolated occasions.1071 His basis for this assertion was the evidenced ability and willingness of the service to identify the potential for corruption.1072 He also cited the advent
7.20
7.21
1067 1068
Part E Chapter 4 p9, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-withoutfear-or-favour.pdf 1069 pp12-13, para 56, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-RogerBaker_HMIC.pdf 1070 pp75-76, lines 14-8, HMI Roger Baker, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-5-March-2012.pdf 1071 p12, para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefConstable-Mike-Cunningham.pdf 1072 p12, para 14, ibid
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of the Bribery Act 2010 as reinforcing HMICs findings that there was no evidence of endemic corruption in police relationship with the media.1073 7.23 Similarly, the overriding message that can be drawn from the second report of the IPCC (Corruption in the police service in England and Wales which is based on the IPCCs experience from 2008 to 2011) is that corruption within the Police Service is not widespread, nor is it considered to be so. Quite rightly, however, the report points out that where corruption exists, it is corrosive of the public trust that is at the heart of policing by consent.1074 Largely as a result of the findings contained within the aforementioned reports, the Home Secretary concluded that:1075 looking at these issues, the vast majority of police officers and staff are striving to act with integrity, and instances where there are questions to be raised are very limited. 7.24 Mrs Filkin in her report stated that:1076 Most inside the MPS think that payment for information is received by few. This conflicts with what some journalists have told me and with what some have now said to the Leveson Inquiry. The facts may be clearer when the current MPS enquiries are completed. Mrs Filkin recorded suggestions of frank corruption, that is to say police officers receiving payment for information; she accepted, however, that she could not confirm whether or not the allegations were true given that they were made in very general terms.1077 7.25 It is in this context that it is necessary to consider Operation Elveden,1078 which is an investigation commenced by the MPS on 20 June 2011 when News International disclosed material that indicated that police officers had allegedly been receiving payments from journalists from the News of the World for the provision of confidential information.1079 In attempting to quantify the breadth of the problem, Assistant Commissioner Cressida Dick observed that she did not think that corruption was widespread or endemic,1080 and described how she had come to form that view:1081 I suppose its based on a quite considerable length of service now, and a fairly considerable interest in these issues. So I have, you know, over the years, read quite a lot of research on the subject. I have spoken to colleagues in our police forces, Ive worked with and in professional standards, and I know, from colleagues and surveys,
1073 1074
p12, para 14, ibid IPCC Report - Corruption in the police service in England and Wales: Second report a report based on the IPCCs experience from 2008 to 2011, published May 2012, p4, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/IPCC-Corruption-in-the-Police-2nd-Report.pdf 1075 p71, lines 1-9, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-29-May-2012.pdf 1076 p16, para 3.1.4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf 1077 pp110-111, lines 23-15, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-5-March-2012.pdf 1078 Part E Chapter 5 1079 p1, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statement-of-DACSue-Akers1.pdf 1080 pp18-19, para 47, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ACCressida-Dick.pdf 1081 pp45-46, lines 18-12, Assistant Commissioner Cressida Dick, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-12-March-2012.pdf
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how absolutely appalling the vast majority of officers and staff regard such behaviour, but I do acknowledge that there has been and no doubt is some of this going on. I dont think well be unique in that. We have to try to reduce it to a minimum and I think hopefully get rid of it, but as Lord Condon said, we have to then keep the pressure on I genuinely believe that the Police Service that I am now in is less corrupt than it has ever been, and I hope that continues. This is an element which is causing concern within the service and to the public, and we need to really assess the full extent and then deal with it. 7.26 In a similar vein, Peter Clarke, formerly an Assistant Commissioner in the MPS, suggested that in his 30 years of service he could not recall ever being involved in a case or incident where bribery of a police officer by the media was suspected.1082 Lord Blair said that he was sure that bribery by the media of police officers has happened and does happen.1083 However, he believed that the number of officers taking money would be relatively small and they will be of relatively low rank.1084 On this later point, he explained:1085 we did an analysis some years ago of what the corruption problem being faced by the Met was, it was reasonably clear that we had broken network corruption of networks of officers, but the individuals were still out there and one of the trades was information sitting in front of computers and so on is more likely to be somebody of a lower rank and quite often not a police officer, but a police employee. But I think also, most importantly of all is that senior officers have been through a long process of training and of inculcation of organisational values and I would be very concerned if I was seeing that senior officers were amenable to corruption in the same way as somebody else, somebody more junior. We would have failed. 7.27 He therefore found it inconceivable that senior colleagues would be taking money directly in this day and age. I just dont think that is possible.1086 Even in respect of the most junior officers and staff, Lord Blair was confident in his belief that they would have understood the stance of the organisation against bribery and other forms of corruption, the lengths to which the organisation would go to uncover it and the penalties for being caught in corrupt activities.1087 Lord Blair concluded by observing:1088 I accept Lord Condons remark that the MPS is the cleanest big-city police force in the world, although I also accept that corruption is not cyclical but a permanent and evolving threat. I believe that, in the countering of that threat, the MPS is amongst the finest forces in the World. 7.28 Specifically in relation to police staff. Dick Fedorcio, former Director of Public Affairs for the MPS, suggested that he had no specific evidence or experience of bribery of DPA personnel.1089 Moreover, he said that because he had been closer to DPA personnel and their activities than police officers he had been in a better position to spot suspicious activity and therefore he
1082 1083
p24, para 49, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Peter-Clarke.pdf p19, para 47, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Blair.pdf 1084 ibid 1085 pp47-48, lines 21-13, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-7-March-2012.pdf 1086 p43, lines 1-3, Lord Blair, ibid 1087 pp19-20, para 48,http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-LordBlair.pdf 1088 ibid 1089 p11, para 44, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-DickFedorcio.pdf
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did not believe that any personnel with the DPA have received bribes from the media.1090 That being said, Mr Fedorcio suggested that whilst he had no specific evidence or experience of bribery of police officers or staff by the media it would be nave to assume it has not taken place at some time.1091 7.29 Sir Paul Stephenson said that he had no doubt that incidents of bribery do occur.1092 He also agreed with the IPCCs analysis that where incidents of corruption do take place they undermine the integrity of the force and damage the reputation of the service significantly.1093 However, like others, he was confident that corruption involved only a tiny fraction of MPS staff.1094 As to this, he said:1095 I think there is very little one can do in terms of normal rules and governance to stop people behaving badly or corruptly. To deal with that, I think you have to do many other things, including right lines and various ways of investigating and looking in intelligence. So I dont think theres a great deal you can do if people are determined to behave unprofessionally. What you can do is put in place a sensible system and approach that reminds people that they should be behaving professionally. And the vast majority did. It was just a small minority, in my view. 7.30 The current Commissioner of the MPS, Bernard Hogan-Howe, said that the MPS works very hard to drive out corruption.1096 He recognised, however, that:1097 there will be a very small minority of staff who act corruptly. We do not underestimate the damage this does to policing. It undermines the good work of the vast majority of honest and hard working MPS employees. He also explained that any member of MPS personnel found to have accepted bribes:1098 will, where the evidence allows, be subject to criminal charges or disciplinary procedures depending on the legal advice at the time. 7.31 Training and guidance are obviously important preventive tools in seeking to address this issue. The relevant overarching guidance in this area is provided, first, through the ACPO Counter Corruption Advisory Group (ACCAG), whose Guidance for the Investigation of Corruption was first published in 2003 and last formally revised in 2006 this guidance has been adopted by all chief officers;1099 secondly, the recognised Standards of Professional Behaviour are set out in the Schedule to the Police (Conduct) Regulations 2008 and the related Home Office guidance (026/2008) on police unsatisfactory performance and misconduct procedures, and Standards of Professional Behaviour for Police staff, as agreed by the Police Staff Council
1090 1091
p11, para 44, ibid p11, para 43, ibid 1092 p25, para 67, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-PaulStephenson2.pdf 1093 ibid 1094 ibid 1095 pp14-15, lines 17-3, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-5-March-2012.pdf 1096 p23 para 63, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-ofCommissioner-Bernard-Hogan-Howe1.pdf 1097 ibid 1098 p23 para 62, ibid 1099 pp4-6, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefConstable-Mike-Cunningham.pdf
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again, this guidance has been adopted by all police forces, including the MPS.1100 Both sets of guidance are currently under review and are dealt with in more detail below. 7.32 Commissioner Hogan-Howe explained that training is provided to MPS staff via its Professional Standards Support Programme (PSSP) which was established in 2009-2010. This saw training delivered to a proportion of the operational front line staff as to how to deal with a corrupt approach, using case studies, as well as debt awareness training.1101 The training was not mandatory, but Mr Hogan-Howe estimated that it was delivered to 12,500 members of operational staff and various other business groups, including the Information and Resources Directorate.1102 Similar evidence was provided by other forces. Simon Ash, Chief Constable of Suffolk Constabulary, for example, said that its Professional Standards Department delivered training regarding the expected standards of professional behaviour.1103 Chris Sims, Chief Constable of West Midlands Police, said that all of his officers had received significant training around culture and values and all supervisors receive technical training on anti-corruption measures.1104 In summary, the best present analysis would suggest that although corruption is not widespread in the Police Service, where it does exist it has a corrosive effect on public confidence in the service as a whole. Until the outcome of the investigations contained within Operation Elveden, however, it is not possible to go further. Evidenced by the guidance and training currently in place, and the vigour with which individual police officers and police staff are pursued where criminality is identified, it is clear that the Police Service takes this issue seriously. There are, however, gaps and weaknesses in the collective approach to the issue a number of which have been identified by HMIC. Having said that, I am in no doubt that the Police Service is genuine in its desire to tackle corruption head on, with the ACPO led response to the HMIC report being particularly important in this regard. For my part, I would whole heartedly adopt the HMIC recommendations relating to the need for consistent national standards and guidance, enhanced training and awareness, and more robust corporate governance arrangements. From the stand-point of sanctions, corruption is a criminal offence with serious penalties, I do not feel it necessary therefore, to recommend any additional statutory or regulatory tools to assist in dealing with this important issue.
7.33
7.34
8. Independent Police Complaints Commission (IPCC)

Functions, remit and powers
8.1 Jane Furniss, Chief Executive Officer and Accounting Officer of the Independent Police Complaints Commission (IPCC), explained that the Commission was established by the Police Reform Act 2002 (PRA) and became operational in April 2004. Its primary statutory function
ibid; MPS 36 The Police (Conduct) Regulations 2008, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/MPS-36-The-Police-Conduct-Regulations-2008.pdf; and CCMC 11: Home Office Guidance Police Officer Misconduct, Unsatisfactory Performance and Attendance Management Procedures (not available on the Inquiry website) 1101 p22, para 59, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-ofCommissioner-Bernard-Hogan-Howe1.pdf 1102 ibid 1103 pp23-24, para 36, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefConstable-Simon-Ash.pdf 1104 p9, para 38, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefConstable-Chris-Sims.pdf
1100
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is to secure and maintain public confidence in the police complaints system in England and Wales. In addition to this statutory responsibility, part of its guardianship role involves an obligation to measure, monitor and where necessary, seek to improve the current system. Ms Furniss makes clear that the IPCC is independent by law, and that its Commissioners cannot have worked for the Police Service in any capacity. The IPCC makes its decisions independently of the police, Government, complainants and interest groups.1105 Ms Furniss described its broad remit in these terms:1106 It is the body that provides oversight of the complaints system for the police. There are other organisations we also have responsibility for [Since 2004 the IPCCs remit has been extended to include serious complaints and conduct matters relating to staff at the Serious Organised Crime Agency (SOCA), Her Majestys Revenue and Customs (HMRC) and the UK Border Agency (UKBA)],1107 but Ill focus on the police. Its a slight misnomer, a name that Parliament gave us, which gives the impression, of course, that we deal with complaints against the police. In fact, we dont, largely. Matters come to us in three different ways. The public can seek our advice and assistance in making a complaint against the police, but those complaints are the responsibility of the Police Service to deal with. The public can then make they have a right of appeal to us if theyre dissatisfied with how the police dealt with their complaint, and we get about 7,000 of those each year. Perhaps most importantly, the police are required under law to refer matters to the IPCC, so certain categories of misconduct by the police or incidents that have caused concern are required by statute to be referred to us. To illustrate the point, when someone dies as a result of police action or as a result of police inaction or allegedly so, theyre required to refer it to us. Other serious misconduct. The police can also choose to refer matters to us if they believe it would be in the public interest to do so 8.2
Furthermore, Ms Furniss explained that although the IPCC had responsibility for the police complaints system overall, the Commission investigated only a very small proportion of cases themselves, usually only the most serious complaints and allegations of misconduct against the police in England and Wales. Each Police Force had its own Professional Standards Department (PSD) which dealt with the vast majority of complaints and conduct matters against police officers and police staff.1108 Ms Furniss told the Inquiry how the IPCC fulfilled its remit:1109 In relation to complaints and appeals, our process is that a member of staff, suitably trained, will assess the matter that comes to our attention. In an appeal, they have the responsibility to determine there are different kinds of appeals, which makes it even more complicated to explain, but different kinds of appeals against, for example, the Police Services decision not to record a complaint against how theyve handled it and against the findings or outcome of how theyve handled it, and what my staff do is review the evidence its a paper exercise, the appeal. They would review how the matter had been dealt with and determine whether the police had actually come to the right decision based on the evidence, and as a result of that, we can require the police to take further action. We can uphold the appeal and require the service to
1105 1106
p2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jane-Furniss.pdf pp2-3, lines 9-8, Jane Furniss, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-hearing-28-March-2012.pdf 1107 pp2-3, lines 9-8, ibid 1108 p2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jane-Furniss.pdf 1109 pp3-4, lines 20-11, Jane Furniss, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-hearing-28-March-2012.pdf
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reinvestigate, for example. 8.3 As well as the appeals and complaints element of the IPCC, there is also an investigative arm. The IPCC has its own team of investigators, about 150 staff, who support the investigative work, none of whom are currently serving police officers, although a proportion have worked as police officers or police staff prior to joining the IPCC.1110 Most, however, are individuals that the IPCC has recruited from outside of the policing world, including some lawyers, and a training programme is in place for those investigators. Ms Furniss told the Inquiry that the IPCCs investigators had similar powers to that of a constable, and could arrest and interview suspects under caution: these powers are used on a regular basis.1111 Ms Furniss described the use of this investigative element:1112 one of the most important decisions that the Commission makes is the mode of investigation for a matter thats been referred to us. So a decision needs to be made as to how this matter should be investigated, and we have three options ourselves, and a fourth one that the IPCC can decide that the matter should be independently investigated by our own staff, fully by our own staff. [Secondly i]t can decide to manage the investigation under our direction and control but where most of the work will be done by local police staff and usually Professional Standards Department police officers. Thirdly, we can supervise it, where the direction and control is with the force, but the IPCC receives the report at the end of it. Fourthly, we can decide that its perfectly capable of being investigated by the police without our intervention Corruption in the Police Service in England and Wales 8.4 It was within this context, and following the concerns about the propriety of relationships between some police officers and the media, including allegations of illegal payments by journalists in exchange for confidential information, that the terms of reference for this part of the Inquiry were formulated. In addition, using her statutory powers under Section 11 (2) of the Police Reform Act 2002, the Home Secretary asked the IPCC to prepare a report on their experience of investigating corruption in the Police Service.1113 The first part of this two stage report, Corruption in the Police Service in England and Wales was published by the IPCC in August 2011.1114 It described the role of the IPCC, the definitions of corruption and the issues arising from it. Based on its experience, the IPCC concluded that it seemed likely that corruption amongst police officers was relatively rare by comparison with some other jurisdictions. However, the report rightly recognised that any allegation or finding of corruption impacted on the standing of all forces. Furthermore, it suggested that the damage that could be done to all of the professional, hard-working and dedicated police officers and staff by the corrupted few should not be underestimated.1115 The IPCCs second and final report, Corruption in the Police Service in England and Wales: Second report a report based on the IPCCs experience from 2008 to 2011,1116 was published on 24 May 2012. Part two of the report sought to set the current concerns in the context of police corruption
8.5
1110 1111
pp5-6, lines 22-9, ibid p6, lines 1-9, ibid 1112 pp4-5, lines 19-15, ibid 1113 p8, lines 3-23, ibid 1114 IPCC Report Corruption in the Police Service in England and Wales (Part 1), published August 2011, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-DG2.pdf 1115 pp7-8, para 10, ibid 1116 IPCC Report Corruption in the police service in England and Wales: Second report a report based on the IPCCs experience from 2008 to 2011, published May 2012, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ IPCC-Corruption-in-the-Police-2nd-Report.pdf
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more broadly. It examined the public view of the nature, extent and effect of corruption in the police, and analysed corruption-related complaints recorded by police forces in England and Wales and those cases that are referred to them by the IPCC. The report also provided case studies of the serious corruption investigations carried out by the IPCC.1117 8.6 Given the broader concerns about police integrity and corruption, the report was commissioned alongside that of the HMIC report, Without Fear or Favour, and Elizabeth Filkins report on the relationship between the MPS and the media, all of which have run parallel to this Inquiry. Along with the other reports, those presented by the IPCC provided a very useful window on this general topic. At the same time, the IPCC had been carrying out or supervising investigations into allegedly corrupt relationships between police officers, mainly in the MPS, and the media. To such extent as is possible without prejudicing ongoing investigations, I deal with the product of those investigations elsewhere. In summarising the view of the IPCC, Dame Anne Owers, its Chair, concluded that although the overriding message was that corruption within the Police Service was not widespread, nor considered to be widespread, where it did exist, it was corrosive of the public trust which was the central tenet of policing by consent. She asserted, and I entirely agree, that public confidence in and acceptance of the police exercising their considerable powers over the population was heavily dependent on a belief in the integrity of individual officers.1118 Having said that, Ms Owers reports that some of the investigations undertaken by the IPCC had revealed serious corruption within the Police Service, sometimes at a senior level and sometimes preying upon precisely those vulnerable individuals whom the police were required to protect. On the other hand, providing a measure of reassurance, she pointed out that many of these cases had come to light as a direct result of the action taken by local forces and police authorities.1119 The report provides a summary of the outcome of all police corruption cases investigated by the IPCC between the period 2008/9 and 2010/11:1120
8.7
8.8
Of the 104 independent and managed investigations considered during this period, the IPCC referred 47 (45%) cases to the CPS. In the 42 of those cases completed [at the time of the reports publication], involving 51 officers, 18 officers were charged and prosecuted, 13 were found guilty and 10 were imprisoned. In terms of rank, most of the officers were constables, with one being a sergeant and one being of ACPO rank. Of the 113 officers subject to completed IPCC investigations, 87 (77%) were the subject of misconduct proceedings. These resulted in a finding of gross misconduct or misconduct for 76 (87%) of officers. In 18% of cases, officers were dismissed or required to resign, 34% of officers were given a written warning and 29% were subject to management action.
8.9
Although concluding that there was nothing to suggest that police corruption was endemic, or that police forces and authorities were not making serious efforts to identify and deal with it when it did occur, the report did however identify a number of suggested areas for change. These included:1121
1117 1118
It was suggested that there was a need for clearer information for the public on what
p4, ibid p4, ibid 1119 pp4-5, ibid 1120 pp43-44, ibid 1121 pp48-49, ibid
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constituted police corruption. To this end the IPCC would produce a regular analysis of the corruption cases that it had dealt with, identifying any emerging themes.
The report concluded that there should be a requirement for Chief Constables to ensure greater consistency in the recording and referral of corruption cases to the IPCC. The Commission had written to Chief Constables making clear its expectations; this would be reinforced in the Statutory Guidance it intended to issue later in 2012. The report suggested that there was a need for a more effective national system for handling allegations against very senior officers i.e. those of ACPO rank. The IPCC reported that it would work with HMIC, the new National Crime Agency (NCA) and the CPS to establish a more formalised and robust system for escalating such complaints. Given that most corruption allegations would continue to be dealt with by the individual forces concerned, including by their own standards and anti-corruption units, the IPCC would consider whether its oversight of these processes needed to be strengthened, and what resources would need to be available to do so. The report understandably concluded that the public expected serious corruption to be investigated by an organisation independent of the police. The IPCC recorded that it stood ready to take on more corruption cases if additional resources could be made available. Moreover, the report made clear that within existing resources, the IPCC would continue to conduct a small, but increased, number of independent investigations into corruption cases, prioritising those involving senior officers, serious criminal allegations and gross abuse of police powers. Finally, the IPCC suggested that additional powers were necessary to enable it to conduct the most effective corruption related investigations. They identify that this was particularly so in respect of contractors, access to third-party data and the power to require the police and other responsible bodies to respond formally to their recommendations. The IPCC recorded that discussions were under way with Home Office officials and Ministers to take this forward.
8.10
The Home Secretary confirmed that last point and provided the Inquiry with her summary of the key findings. She said:1122 I think the key findings that come out of this in many ways chime in with those previous work thats been done, particularly by the HMIC, about the need for greater clarity both for the public in terms of whats police corruption and therefore what is appropriate to bring to the IPCC, but also greater clarity in terms of perhaps greater consistency in recording incidents that have taken place from force to force. They identify that different forces appear to have different levels of reporting of complaints about corruption and the question is raised as to whether thats because of a different definition being used rather than the behaviour in relation to the forces. Crucially, it refers again to the issue of additional powers and also about resources, and these are issues that we intend, when legislative time allows, to be able to make changes to the powers to the IPCC and we are looking at the case that theyve put forward in relation to additional resources.
1122
pp63-64, lines 25-19, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-29-May-2012.pdf
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8.11
I certainly support these proposed changes and share the IPCCs view that in order for the system to work as it should, it is vital that all police forces are both alert to allegations of corruption and are capable of dealing with them effectively and appropriately.1123 I also agree that this is an area in which independent oversight is essential, particularly from the standpoint of public perception, not least because the confidence of the public in the police is fundamental to its legitimacy and to the absolutely critical co operation and compliance that, as an organisation, it needs both to expect and also to achieve.
9. HMIC report: Without Fear or Favour

Functions, remit and powers
9.1 An inspectorate of police was established pursuant to the provisions of the County and Borough Police Act 1856, and the first Her Majestys Inspectors (HMIs) were then appointed for the purpose of inspecting the efficiency and effectiveness of individual police forces. In 1962, the Royal Commission on the Police formally acknowledged the contribution to policing made by Her Majestys Inspector of Constabulary (HMIC) and established the Inspectorate as both a monitor of, and a catalyst for, policing change.1124 Between 2004 and July 2012,1125 HM Chief Inspector of Constabulary was Sir Denis OConnor who had himself served both as an Assistant Commissioner in the Metropolitan Police and then as Chief Constable of Surrey. He made the point that, over the last two decades, there has been a notable acceleration in the pace of police reform, which had served to broaden the scope of the Inspectorate to the role it performed today.1126 Currently, HMIC independently assesses police forces and policing activity ranging from neighbourhood teams, serious crime and the fight against terrorism. Sir Denis told the Inquiry that in preparing their reports, HMIC asked the questions which informed citizens would ask, and published the answers in accessible form, using their expertise to interpret the evidence. HMIC also provide authoritative information to allow the public to compare the performance of their force against others and their evidence is then used to drive improvements in the service provided to the public.1127 HM Inspector (HMI) Roger Baker, formerly Chief Constable of Essex, who now has responsibility for police forces in the Northern Region, described the functions of HMIC in his own terms:1128 I think its a police watchdog, in that it assesses policing and police forces in the public interest. So that can range from looking at local efficiency and effectiveness of a police force to broader policing issues such as the riots of last summer we ask questions that the public would want us to ask and we report it back to the public in hopefully straightforward terms.
1123
9.2
IPCC Report Corruption in the police service in England and Wales: Second report a report based on the IPCCs experience from 2008 to 2011, May 2012, p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/IPCCCorruption-in-the-Police-2nd-Report.pdf 1124 pp1-2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Witness-Statement-of-Sir-DenisOConnor1.pdf 1125 The appointment of the current Chief Inspector (Mr Tom Windsor) commenced in October 2012 after the conclusion of the evidence gathering phase of the Inquiry 1126 pp1-2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Witness-Statement-of-Sir-DenisOConnor1.pdf 1127 pp1-2, para 2, ibid 1128 p32, lines 15-22, HMI Roger Baker, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf
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9.3
HMIs are appointed by the Crown on the recommendation of the Home Secretary and report to HM Chief Inspector of Constabulary, who is independent of both the Home Office and the Police Service.1129 There are currently four HMIs in addition to the Chief Inspector: only two of the five have a background in policing. Mr Baker described the make-up of the team at the time of the Inquiry:1130 its a broad church There should be four inspectors and one chief inspector. Of the four, two of us are ex-chief constables. One is now the Commissioner of the Metropolitan Police. Bernard went across. He was an inspector. Hes now the Commissioner of the Metropolitan, and the other two inspectors currently dont have a police background. One was a chief crown prosecutor in London and one worked for the Audit Commission. So theres a mixed range of skills.
9.4
In addition to HMIs, the Inspectorate has a workforce of 150 staff, of which 44% are permanent, 41% are seconded and 15% are casual, agency or contract staff. Sir Denis told the Inquiry that this enabled HMIC to bring a wide mix of skills and disciplines to the organisation in order for them to carry out work across a diverse range of subject areas and areas of expertise.1131 HMICs principal statutory duties are set out in the Police Act 1996 (as amended in 2002) and the Police and Justice Act 1996.1132 Within this statutory framework, Sir Denis described HMICs role as providing an incentive for police forces to improve effectiveness and value for money in a monopoly sector.1133 Unlike many regulators, HMIC does not have the power to impose standards or prices but instead seeks to secure improvement through the provision of an independent, professional assessment of police work.1134 Against this backdrop, Sir Denis described HMICs powers over individual police forces:1135 HMIC has the power to inspect the efficiency and effectiveness of police forces and currently police authorities. That will change in November. It will be restricted to the police forces. Since January 2, I have sought and at my behest, we have had power to seize documents and to enter premises, in order to pursue our duties. Not, dare I say, that we have been challenged, but it is best to be prepared, not just legislate for good times.
9.5
9.6
Sir Denis told the Inquiry that in normal circumstances, police authorities and, in future, Police and Crime Commissioners (PCCs) would regulate the activities of police forces. However, in extreme circumstances of sustained failure, HMIC could provide advice to the Home Secretary who had powers to direct the authority (or the IPCC).1136 When an issue emerged as being of national importance or one which was clearly systemic in nature, the Home Secretary may ask HMIC to conduct a review or, with a degree of independence, HMIC may initiate one
pp1-2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Witness-Statement-of-Sir-DenisOConnor1.pdf 1130 p33, lines 1-9, HMI Roger Baker, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf 1131 pp1-2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Witness-Statement-of-Sir-DenisOConnor1.pdf 1132 ibid; pp2-4, Annex A, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Exhibit-SDOC1-toWitnessStatement-of-Sir-Denis-OConnor1.pdf 1133 pp2-3, para 3, ibid 1134 pp2-3, para 3, ibid 1135 p102, lines 5-13, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-12-March-2012.pdf 1136 pp2-3, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Witness-Statement-of-Sir-DenisOConnor1.pdf
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itself.1137 Sir Denis told the Inquiry that, by emerging convention, if a clear and present issue emerged, HMIC could tackle that issue whether or not required to do so by the Home Office or identified within the business plan.1138 By way of example, he referred to the G20 summit and Anti-Social Behaviour. 9.7 Sir Denis told the Inquiry that HMIC did not have any formal coercive legal powers in relation to any recommendations they might make, but, as an organisation, had considerable influence over police forces and currently police authorities. He said:1139 depending on the nature of the recommendations, the seriousness of the issue, we will pursue it, but what we try to do is seek agreement from the chief officer and the chair of the authority, depending on what the recommendations are We have some influence, and we try to know our place as well. The only other thing I would say is it is sometimes mistaken from externally that the publication of a view by an independent body like ourselves is a matter of some significance to chief constables and police authorities and there is I suppose a degree of leverage that flows from the publication of what youve found and then any follow-up is still found to be wanting. It may sound rather like soft power. It is obviously less of an obvious sanction that [sic] some other regulators, but it has its place. Without fear or favour a review of police relationships 9.8 Immediately following her statement to the House of Commons on 18 July 2011 about the MPS and the associated matters of police integrity and public confidence,1140 and in addition to her request to the IPCC, the Home Secretary formally asked Sir Denis to carry out a review to consider instances of undue influence, inappropriate contractual arrangements and other abuses of power in police relationships with the media and other parties, with a view to HMIC making recommendations to her about what needed to be done.1141 On 22 July 2011, the Home Secretary wrote to all Chief Constables to inform them that she had asked HMIC to conduct such a review, but also to make clear that this work, as well as that of the IPCC and Elizabeth Filkin, was not intended to pre-empt the outcome of this Inquiry. Rather it was to ensure that any lessons that were capable of being applied immediately could be identified sooner rather than later.1142 Sir Denis asked Roger Baker to lead the review, which was conducted over a period of three months. A draft was provided to the Home Office in November 2011, and the final report was published in December 2011.1143 As well as gathering evidence from stakeholders within the Police Service and liaising with media experts, including the CRA, HMIC looked at the issue from the perspective of the public. Quantitative and qualitative research was conducted with
9.9
9.10
1137 1138
pp2-3, para 3, ibid pp2-3, para 3, ibid 1139 p103, lines 4-23, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-12-March-2012.pdf 1140 HC Hansard, 18 July 2011, Volume 531, Columns 622-624, http://www.publications.parliament.uk/pa/cm201011/ cmhansrd/cm110718/debtext/110718-0001.htm#1107184000001 1141 pp33-34, lines 15-3, HMI Roger Baker, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-5-March-2012.pdf; p3, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/MPS-4-HMIC-without-fear-or-favour.pdf 1142 pp1-2, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TM1.2.pdf 1143 pp33-34, lines 15-3, HMI Roger Baker, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-5-March-2012.pdf; p60, lines 1-13, Theresa May, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/05/Transcript-of-Morning-Hearing-29-May-2012.pdf
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members of the public from across England and Wales, in an attempt to ascertain the publics perception of what represented integrity (with corruption as the antithesis of integrity), how prevalent the public thought corruption was within the Police Service, and whether their attitudes had been affected by recent events.1144 Sir Denis provided the Inquiry with his views on the value of public opinion in this domain:1145 its another anchor point, I suppose, in police legitimacy With a measure of public sentiment, anything is possible. Without it, progress is very difficult. In relation to this, I was actively interested to see, frankly, whether what had occurred last summer had made a real dent in the police reputation, in the publics belief in them and the trust, and thats why myself and Mr Baker undertook this work 9.11 The internal Police Service evidence gathering included 500 interviews with affected personnel, and approximately 100 focus group sessions were conducted within the forces and police authoritys that HMIC visited during the course of the review.1146 Mr Baker explained why this exercise was important and summarised the general views expressed during these evidence gathering sessions:1147 we wanted to get a view from the workforce on how they saw these issues, and I think its right to say here that their moral compass was very strong on these things. They were very clear that lots of these things, in their view, were not acceptable The staff were clear in two parts One, where there was clear leadership from the top, they understood what the rules were and were happy to go along with that. And secondly, where it was less clear and when they were talking about what gratuities and hospitalities it was right to receive, in my words their moral compass was very strong. There was a clarity of, you know, most things were not acceptable. Teas and coffees were; beyond that then the Police Service shouldnt be engaging in it. 9.12 HMIC also undertook a number of benchmarking exercises across the public and private sector, both nationally and internationally.1148 Mr Baker provided a summary of the findings:1149 we contacted not only police forces, nationally and internationally, but other organisations to take a view on all of the component parts of this report. So what were their relationships with the media and how did they manage it, some of which is cited in the report. So the New South Wales Police media policy, how New York Police Department dealt with integrity testing, because they have a 650-strong team on internal affairs that are separate from the police, if you like. I dont necessarily advocate that model. But also other organisations such as banks, charity organisations so third sector on how they were dealing with inappropriate disclosures of information and relationships. So not just about policing, but added the Police Service benchmark, and we didnt find the cure for this in any other organisation. In fact, in many parts, the Police Service in England and Wales was a lot stronger than many
1144
pp8-9, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-withoutfear-or-favour.pdf 1145 p7, lines 5-17, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-12-March-2012.pdf 1146 p8, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-withoutfear-or-favour.pdf 1147 pp71-72, lines 16-11, HMI Roger Baker, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-5-March-2012.pdf 1148 p8, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-withoutfear-or-favour.pdf 1149 pp72-73, lines 15-22, HMI Roger Baker, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-5-March-2012.pdf
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organisations, nationally and internationally, that we spoke to. So if you took in appropriate disclosure of information recorded by the Information Commissioner, there are far more complaints about other organisations than there are about policing, for example. So the police came out of that strongly. I know its easy to put them in the spotlight with this, but whilst they have a way to go, whilst youd find on policies and procedures 70 or 80 per cent of forces would have some sort of policy, if you applied that to most of the sectors, you were down to 20 and 30 per cent had got policies around it. In some cases, the Police Service were outshone by other organisations, but generally in just one component part of what we looked at. Summary of key findings The report neatly set out the essence of the issue that it was seeking to evidence and address in these terms:1150 The aftermath of the phone hacking affair has generated a number of enquiries into the relationships between the media, the police and others, and the conflict of interests that can arise from them. A conflict of interest arises where police officers or staff give (or appear to give) preferential treatment to one interest over others. At best, this behaviour may be regarded as inappropriate; at worst, as corrupt. Potential conflicts of interest include:
9.13
The access and influence accorded to individuals and organisations; Inappropriate disclosure of information to the media and others, whether for financial gain or otherwise; Excessive or inappropriate hospitality, especially when offered to senior officers and other decision makers; Question marks over contractual arrangements and police-supplier relationships; and Secondary business interests which may conflict or be perceived to conflict with the integrity of the police role (including employment taken by staff while serving with a force, and employment taken up immediately after leaving the Police Service).

9.14
The report found that whilst corruption was not endemic in the Police Service, forces and authorities were generally unsighted of the risks and vulnerabilities associated with relationships with others, including the media. The report noted that the absence of clear boundaries for police relationships with others was a cause for concern, as was the lack of consistent standards, policies and procedures across forces and authorities.1151 Of particular significance as far as I am concerned, the point is also made that from the perspective of the public, the Police Service needed not only to act fairly, but must also be seen to be acting fairly.1152 Mr Baker told the Inquiry that he placed perception at almost the same level of importance as reality, and said:1153 I think it was particularly important that not only as a regulator but all of us, that
1150
pp7-8, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-withoutfear-or-favour.pdf 1151 pp12-13, para 56, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-RogerBaker_HMIC.pdf 1152 pp12-13, para 56, ibid 1153 p53, lines 20-25, HMI Roger Baker, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf
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we take the publics view, particularly if youre talking about the public interest, and thats what, on this occasion, 3,500-plus members of the public who were surveyed said, Thats what we think. 9.15 HMIC found that the public associate integrity with being treated fairly by the police. Mr Baker pointed out that the public association of integrity with fairness suggested that they saw inappropriate relationships, and the conflicts of interest that might arise as a consequence, to be one, but not the only, dimension of police integrity. He suggested, entirely correctly in my view, that this had implications for the police if they were seeking to tackle corruption and inappropriate relationships from the perspective of the service user or the public more generally. This clearly included the relationship between the police and the media.1154 The term corruption obviously covers a broad spectrum of behaviour and the report makes it clear that frank corruption, that is to say, money passing hands and clearly at one end of the spectrum, is thankfully relatively rare. At the other end of the spectrum, however, is what Sir Denis described as soft corruption. He explained the type of behaviour which would encapsulate this concept and the importance that the public places on it in these terms:1155 its doing favours, treating something much more favourably, one institution than another, you know, a place where hot dogs or something are served, one particular franchise much more favourably than another. That would raise a question in their mind because theyre obviously seeing things on the street every day, and it kind of anchors us a little bit that even at the lower end, as some people would see it, of what happens, there is an expectation of the police, thankfully, which is hugely inspiring. 89 per cent of the public think that they should be better than others in regard to their mission and what they do and be very even-handed about it 9.17 Given the importance of perceptions, the report suggested that the over-arching principle of police relationships with the media was that the Police Service should not seek to constrain the media but rather allow them to accurately report news so that the principal beneficiary was the public. However, the report makes equally clear that forces should take account of the level and intensity of these relationships and not least how they would be perceived by the public.1156 Sir Denis elaborated on this point:1157 if the relationships become, as it were, visible and particularly focused on one or two individuals or one particular news organisation this really is in more of a national level than a local level, where very often, frankly, there is only one local newspaper then the point is that people may have the wrong perceptions of it, or maybe the right perception, but it may cause them to become concerned. 9.18 There has been much debate during the course of this Inquiry as to the differences between the position of the MPS compared with that of regional police forces. HMIC suggested that this debate missed the point. The report argued that we were living in a world of virtual
9.16
1154
pp13-14, para 58, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-RogerBaker_HMIC.pdf 1155 pp7-8, lines 24-11, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-12-March-2012.pdf 1156 p27, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-withoutfear-or-favour.pdf 1157 p9, lines 9-16, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-12-March-2012.pdf
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communications, with issues being followed in real-time through a range of new technology and social media.1158 Sir Denis said:1159 I think intense inquiries which will generate competition for information can happen anywhere in this country. Thats a fact. If you look at Cumbria you know, think of the last couple of years. Cumbria, Northumbria, Bristol. So those kind of inquiries which draw the most intense scrutiny can happen anywhere and with that potential conflicts of interest and issues, but running alongside that is a whole new world which is unwrapping around us, as people twitter this Inquiry and as people engage in a huge range of social media, and that includes people who are serving police officers and members of staff who may or may not be aware of just how much of themselves they are revealing, and we did not find that that issue was restricted to the Metropolitan Police. 9.19 The report described as the key contributor to promoting integrity visible consistent leadership. Mr Baker said that the evidence to support that conclusion lay in the Inspectorates visits to forces where they found:1160 the chief officer and the chief officer team were very clear on what was right and what was wrong and that was being articulated in not only bits of paper but the way they behaved, you would get that feedback from the staff, but youd also see it when you tested some of those areas of business. Where they would bring in that clarity to it, we found a difference. 9.20 The report also made clear that visible and consistent leadership was a key factor in ensuring good force corporate governance and oversight. HMIC argued that this was more than just systems and processes, but also required those in charge of the organisation and those who represented it to be consistent in demonstrating appropriate behaviour: they should promote its values in pursuit of its objectives.1161 As Sir Denis put it, they are stewards of the reputation of the organisation.1162 To that end, the report suggested that:1163 chief officer teams should review their corporate governance and oversight arrangements to ensure that they were fulfilling their function in helping promote the values of their force and the delivery of its objectives, and that they were, through their actions and behaviours, promoting the values of the organisation and making sure good corporate governance was seen as a core part of everyday business. Sir Denis elaborated on the key issues to be considered by forces in looking to manage the
G
9.21
1158
p29, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-withoutfear-or-favour.pdf 1159 p14, lines 10-24, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-12-March-2012.pdf 1160 p75, lines 3-11, HMI Roger Baker, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf 1161 p55, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-withoutfear-or-favour.pdf 1162 p32, lines 17-18, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Afternoon-Hearing-12-March-2012.pdf 1163 p56, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-withoutfear-or-favour.pdf
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risks in this area:1164 there are patterns and lessons to be learnt in the way relationships can develop, and something that started relatively innocently can become more problematic. Its bound to be associated with particular kinds of posts, the targeting of individuals and particular kinds of posts, and with individuals own obligations, whether theyre financial for example, currently its been assessed about 8.8 per cent of police officers and staff are financially stressed. There are ways of looking at people who work for your organisation and what they do, and looking at the potential to safeguard, as it were, them, to prevent things happening, and during the 1990s, when it was looked at in relation, as it were, to conventional corruption, criminal activity, they profiled the shape of this so that there was, if you like, an intelligence profile of the most vulnerable areas. I guess what were looking at is if you want to avoid conflicts of interest, if you want to avoid a slippery slope, it is worth considering how you profile vulnerabilities of your organisation and its relationships with whatever other people or sectors you engage with. Recommendations HMIC stressed that at the heart of the issues that it considered within its review was the importance of integrity, both personal and organisational, which they say was evident and transparent in the way individuals behaved and how forces and authorities conducted their business.1165 It was against this backdrop that HMIC made the following principal recommendations:1166
9.22
Forces and authorities institute robust systems to ensure risks arising from relationships, information disclosure, gratuities, hospitality, contracting and secondary employment are identified. Monitored and managed. They should ideally do so on the basis of national standards and expectations there are no geographical variables when it comes to integrity and there should not be local differences in standards. This work on national standards should be encouraged by the Home Office and promoted by leaders in the Service locally. There should be clear boundaries and thresholds in relation to these matters. Such limits should be consistent and Service wide. This in effect means identifying a clear message for staff on these issues as to what is acceptable, what is unacceptable and what areas of vulnerability to avoid. ACPO should lead this work in partnership with staff associations and those involved in police governance. Training courses should include appropriate input in relation to integrity and anti-corruption. In particular, given the importance of leadership to securing high standards of integrity (a theme which runs through this review), the Strategic Command Course (in January 2012) and the High Potential Development Scheme should encompass these issues. Chief Constables should review how much effort is being put into briefing their staff on the standards as to what is acceptable, unacceptable and on the areas of potential vulnerability. Chief officer teams should review their corporate governance and oversight
1164
pp33-34, lines 11-8, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-12-March-2012.pdf 1165 p19, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-withoutfear-or-favour.pdf 1166 p19, ibid
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arrangements to ensure that those arrangements are fulfilling their function in helping promote the values of their force in the delivery of its objectives, and that they are, through their actions and behaviours, promoting the values of the organisation and making sure good corporate governance is seen as a core part of everyday business.

9.23
HMIC expects the Service to have detailed proposals in the above areas ready for consultation with all relevant parties by April 2012. An assessment relating to these matters should be conducted by HMIC by October 2012 to inform incoming Police and Crime Commissioners and Police and Crime Panels.
Having received a draft version of the report in late November 2011, the Home Secretary wrote to Sir Denis on 6 December 2011 setting out her initial views on the findings and recommendations. The Home Secretary understandably welcomed HMICs finding that corruption was not endemic in British policing, but stressed that, more generally, the conclusions of his report presented an urgent wake up call for police leaders. She accepted the proposed recommendations of HMIC as valuable steps towards addressing the concerns raised by the review.1167 However, the Home Secretary also pushed for a greater sense of pace and urgency from the Police Service in developing more robust and consistent arrangements, and requested that a more direct challenge be made to current police leaders to make the point that dealing with the findings of the report was their personal responsibility, individually as well as collectively.1168 These two points were addressed within the final version of the report published in December 2011, and encapsulated within the recommendations reproduced above. Having identified a number of recommendations to tackle the issues identified by the HMIC report, in his evidence to the Inquiry Sir Denis synthesised the key steps that now needed to be taken by the Police Service to recalibrate its relationship with the media in this way:1169 I take the view that there does need to be a significant revision in the way the relationship operates, but I would absolutely want to reassert with you: not actually in order to shrink the relationship but to put it on the right footing. Now getting it right means putting, to me, as a starter at least some kind of framework for integrity in those dealings, which would have three components These are some considerations in developing the right relationship, and I think thats probably the best one can say about them, but theyre based on the idea that you put some kind of framework of integrity in place and then you support it in a number of ways Three considerations in that would be: in their interactions with the media, there must be a legitimate policing purpose, whether its a constable or a chief constable, and it should be more than relationship-building and relate to the core values and standards of policing. Thats why I think its important to establish those values, standards part of the challenge is there are several sets around from the attestation, which I think, if you are familiar with it, you know, is quite moving, all the way through to covers professional conduct to a statement of professional values. My instinct is that theyre all worthy and as long as they crystallise what we hope from the police, theyre a reference point in whether you actually have a legitimate policing purpose, which is likely to prevent crime and help people and help the investigation, than not
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1167 1168
pp1-2, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TM1.9.pdf pp1-2, ibid 1169 pp50-53, lines 17-23, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-12-March-2012.pdf
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The second consideration is how; the manner in which the relationship is conducted. In essence, I think it should operate without favouritism and with integrity, and I say this is about integrity of the mission policing. So that kind of questions exclusive contact. It doesnt eliminate it, but it questions it. So it has real bite in that sense, and it also accepts that because of the police mission to investigate, you will consider whats presented to you, as it were, even if the media are presenting it to you as a real prospect. Now, what will need to happen underneath that is some very practical things for people who perhaps wont have all the time to watch this Inquiry or read all of these papers. That can be converted without favourite, with integrity to something a police force does about the range of contact it thinks is acceptable, about records, about briefing, authorisation so it [is] establishing some boundaries And then the third consideration is [how] the police handle information and access to it. They must seek to avoid a conflict of interest, given their obligations around confidentiality in particular but unexclusively. I think that those three points will help. If developed, can help. Im quite prepared to accept and there is a dialogue going on with people in the Police Service and elsewhere that this actually may be a prompt for a better set of ideas, but theyre designed to be specific, although they may appear at first blush rather general 9.25 Sir Denis also suggested that there may need to be some mechanism whereby a police officer or member of police staff who was particularly concerned about an aspect of police behaviour (such as, for example, the suppression of an investigation) was able to report that concern and have it seriously considered without having to use the press as a vehicle to expose the wrongdoing.1170 The value of a route for whistle-blowing is that serious concerns could be addressed without prompting an allegation of disloyalty to the police although, ultimately, always leaving open the ability to go to the press in the public interest. Sir Denis accepted that in providing an alternative route to raising concerns with the press, in parallel, the police would have to be more ready to admit where things had not gone as well as they might have done.1171 Sir Denis also accepted an obvious potential danger with such a system: that by moving to a stronger framework which tightened down the basis for contact, there was a risk of closing off an important avenue for revealing wrongdoing.1172 This public interest safety valve process1173 as it was described by Sir Denis, is obviously a very important part of what the press is in a position to achieve and one of the responsibilities that it has in our society: it is a role which I have no doubt that they should be able to continue to perform. This is an important issue and one to which it will be necessary to return in the concluding sections of this chapter. The response The HMIC report and its recommendations have generally been well received and welcomed from those within the policing world. Commissioner Hogan-Howe, for example, told the Inquiry that the MPS had actively contributed to the HMIC review and welcomes the national picture their report provides,1174 and Chief Constable Vaughan felt that it had been a valuable
9.26
9.27
1170 1171
pp54-56, lines 18-25, Sir Denis OConnor, ibid pp57-58, lines 13-2, Sir Denis OConnor, ibid 1172 pp57-58, lines 21-2, Sir Denis OConnor, ibid 1173 p58, lines 12-13, Sir Denis OConnor, ibid 1174 p36, para 98, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-ofCommissioner-Bernard-Hogan-Howe1.pdf
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publication within this area of business.1175 Similarly, Lord Condon thought that the report was a valuable contribution to the debate1176 and Lord Stevens felt that it was in the right space with the challenge in its implementation.1177 9.28 Julie Norgrove, the Director of Audit, Risk and Assurance for the Mayors Office for Policing and Crime (MOPC), also fully endorsed all of HMICs principal recommendations.1178 Ms Furniss for the IPCC expressed a degree of surprise that some of the recommendations were necessary given that, in her view, some of what was said ought to have been fairly obvious to the Police Service.1179 However, that point having being made, she said of the HMIC reports recommendations given that it clearly has been necessary, then I think they will be very helpful, actually.1180 That is not to say that there were not concerns expressed at some of the recommendations, particularly in relation to the potential creation of additional bureaucratic burdens for the Police Service. Lord Blair for example was reasonably content with the thrust of the recommendations1181 but felt that they were overly complicated.1182 As could perhaps be expected, the reaction to the report and its recommendations from the media was mixed. Sandra Laville thought that the HMIC report highlighted some very sensible broad principles for police forces1183 and applauded its emphasis on integrity, both personal and organisational. She said:1184 If police forces can instil integrity and a strong moral compass into its police officers this is far more effective for tackling corruption than any amount of top down rules and regulations. 9.30 Sean ONeill considered the report to be a largely reasonable document1185 but had strong views on the recommendation that all contact between police officers and journalists be formally noted; he suggested that this was bureaucratic, unworkable and ultimately a threat to legitimate whistleblowing and freedom of expression.1186 Jon Ungoed-Thomas shared this viewpoint, to the extent that he objected to the recording of contact between police officers and the media. He told the Inquiry:1187 some officers are already wary of dealing with journalists, and I think that the key is the training of officers, and they understand the parameters in which they have exchanges with journalists. I think the difficulty is whenever you put in an audit
1175
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p29, para 98, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefConstable-Peter-Vaughan.pdf 1176 p25, para 68, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-LordCondon.pdf 1177 p30, lines 7-18, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-6-March-2012.pdf 1178 p26, lines 1-8, Julie Norgrove, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-29-March-2012.pdf 1179 pp28-29, lines 25-6, Jane Furniss, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-hearing-28-March-2012.pdf 1180 p29, lines 6-7, ibid 1181 p27, para 65, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Blair.pdf 1182 ibid 1183 pp16-17, para 43, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-SandraLaville.pdf 1184 ibid 1185 p12, para 61, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sean-ONeill.pdf 1186 ibid 1187 p95, lines 4-21, Jonathan Ungoed-Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-14-March-2012.pdf
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trail, for whatever it is, you have to have a very, very good understanding of the possible impact and the amount of work that it generates, and what Im concerned at is that it will be easier for police officers just to say no, and not bother with the monitoring procedures, rather than just have a quick conversation with a journalist. For an organisation which is ie the police, which is so reliant on an inflow of public information, I think that would be a mistake to unnecessarily restrict exchanges between journalists and police officers, and I think that the consequence of that kind of mechanism would be a restriction of exchanges. 9.31 John Twomey agreed with Mr Ungoed-Thomas and felt that any requirement for police officers to record their contact with journalists would have kind of a freezing effect. 1188 James Murray was even more strident in his criticism; he argued that the report lacked credibility as the evidence of any wrongdoing between journalists and the police was not evident.1189 In respect of the recommendations, he said that they:1190 seem overly wordy and lacking in clarity. My view is that police officers and journalists are sensible people who have intelligent interaction and both sides have high ethical standards Sensible officers know what corruption is and will not need to go on a long course to be told what it is. The issue of recording contact between police officers and the media and the possible consequences of such a requirement is clearly extremely important, and one which is raised again in the context of Elizabeth Filkins report and recommendations. Again, it will be necessary to return to it in the concluding section of this chapter. 9.32 ACPO is leading the response to the HMIC report on behalf of the Police Service1191 and, by October 2012, HMIC will have conducted a further assessment of the progress made by police forces and authorities in addressing the recommendations contained within the report.1192 In relation to the general response by the police to the issues raised by this report, and with an eye to the future, the Home Secretary said:1193 ... Im very keen that ACPO take the lead in this, as they are now beginning to do. The only thing I would add is that of course, in the future, there will be a different structure available within which these sorts of matters can be considered by the police, namely the police professional body which the government is establishing, which will be established by the end of this year, which will be looking at standards across a whole range of activities in relation to policing, for police officers and police staff.
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p44, lines 12-16, John Twomey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-19-March-20121.pdf 1189 p11, para 43, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-JamesMurray.pdf 1190 p11, para 44, ibid 1191 pp8-9, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-HughOrde.pdf 1192 pp14-15, para 60, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-RogerBaker_HMIC.pdf 1193 As at the date of publication of this Report, the HMIC follow-up report is still awaited
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10. Elizabeth Filkins review of the relationship between the MPS and the Media
10.1 After the fallout from the phone hacking that took place at the NoTW in July 2011, concerns were raised that the Metropolitan Police Service (MPS) may have failed to thoroughly investigate the matter, particularly after the discovery that the practice had been more widespread than initially perceived.1194 There was also much speculation regarding the cosy relationships which existed between some senior MPS officers and NoTW journalists, and whether this was simply a general perception, or a matter of fact.1195 With these concerns in mind, the then Commissioner of the MPS, Sir Paul Stephenson, appointed Elizabeth Filkin to conduct a review into the relationship between the MPS and the media.1196 Mrs Filkin has explained to the Inquiry that these concerns were largely the reason that Sir Paul Stephenson had invited me to do this piece of work, it was obviously very pertinent to the piece of work.1197 The perception issue was of key importance for the MPS, who felt that the relationship between the force and the media had damaged public confidence in the MPS. Mrs Filkin has said in this regard that the MPS were:1198 embarrassed by much of the coverage, who were concerned that it might turn out to be true, who felt that they had done their duty throughout their careers and this was being now seriously undermined, and they were worried that public trust would be undermined. 10.3 As such, the purpose of Mrs Filkins review was to provide recommendations to Sir Paul and the MPS Management Board, in relation to: general issues around the ethics of police and media relationships; the purpose of this relationship across all levels in the MPS; methods of improving public confidence in police and media relations; the issue of transparency of such relations; the rules and acceptance of hospitality between the police and the media; and whether any evidence in relation to any of these issues should be led by the MPS to this Inquiry.1199 Although Mr Stephenson and the then Assistant Commissioner, John Yates, resigned shortly after the commission of the report, Mrs Filkin commenced with her work in August 2011 under the oversight of the incoming Commissioner, Bernard Hogan-Howe.1200 The final report was published and presented to the MPS on 5 January 2012.1201
10.2
G
10.4
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p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Statement-of-Elizabeth-Filkin1.pdf p8, para 2.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf 1196 p95, lines 10-16, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-5-March-2012.pdf; p6, para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Witness-Statement-of-Sir-Paul-Stephenson2.pdf 1197 p100, lines 3-5, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-5-March-2012.pdf 1198 p100, lines 9-14, ibid 1199 pp5-6, para 1.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf 1200 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Statement-of-Elizabeth-Filkin1.pdf 1201 http://content.met.police.uk/News/Elizabeth-Filkin-report-published/1400005701012/1257246745756
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The Filkin Report: the ethical issues arising from the relationship between police and media
10.5 Mrs Filkin conducted her evidence gathering process over the course of five months. This process comprised of interviews with a range of sources across the Metropolitan Police; stakeholders within the newspaper industry; as well as politicians and reputable business individuals. Mrs Filkin has told the Inquiry to this effect that:1202 I put out a request on the internal intranet for the Metropolitan Police asking anybody within the Metropolitan Police who would like to give me information, evidence or opinion to be in contact with me, either in writing or in person, and I offered to do that in confidence if people wished that. I requested interviews with a range of people across the Metropolitan Police Service, all of whom Im very pleased to say agreed to be interviewed by me, and I did the same with a list who were journalists, editors, politicians, business people, who I though might have something to give me. I also sat down with a number of internal groups in the Metropolitan Police ... a range of staff groups, of different groups, different ethnic backgrounds, et cetera, to get their opinions, too. 10.6 As well as gathering evidence from these interviews with 137 people, and the consideration of written material, Mrs Filkin also consulted with MPS officers working on Operations Weeting, Elveden and Tuleta; and this Inquiry. She told the Inquiry that she exercised my own judgement about whether people were trustworthy when I talked to them.1203 These interviews were presented as confidential conversations, and Mrs Filkin has only attributed quotes to those interviewed, with their consent, in her final report. Where she has questioned the validity of some of the views expressed through her interviews, Mrs Filkin has made this clear in the report. She told the Inquiry that:1204 as you will have seen, a large number of people did allow me to attribute their quotations to them, but some did not. And I have respected that, but I didnt quote people without making any comment about it where I didnt think I didnt support people unless I thought that what they were saying was trustworthy. That didnt mean to say I didnt also include some quotes from people whose views I did not accept. 10.7 Mrs Filkin has also explained to the Inquiry that her report sought to consult as wide a view as possible, in order to ensure that the evidence was representative across the board, particularly given that there were different opinions held by the media and the MPS on the key findings of her report. She has stressed to the Inquiry that the report is entirely a reflection of her own findings. Summary of key findings 10.8 The Filkin Report conveyed four key issues which became evident over the course of Mrs Filkins research. These issues were reported to the MPS Management Board and the Commissioners Policy Forum at the time of her Inquiry. They covered:1205
1202
pp95-96, lines 22-15, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-Hearing-5-March-2012.pdf 1203 p97, lines 24-25, ibid 1204 p98, lines 5-13, ibid 1205 p7, para 1.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf
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10.9
The core principles to be established to govern the relationships between the MPS and the media. The changes necessary to the leadership and management of the MPS to put these into practice. The changes necessary to the Directorate of Public Affairs (DPA). The prevention of unethical relationships between the police and the media in the future.
Mrs Filkin has described the key problems around the perception of leaks from the MPS to the media, interlinked with the cosy relationships which have developed between the two. She concluded that this disclosure of information; the context of the relationship which fosters this disclosure; and the extent to which these relationships are regulated, should be addressed by the MPS in order to ensure complete oversight of an ethical practice, which would restore any damage to the public trust.1206 She elaborated on the issue of excessive hospitality and favours to the Inquiry, and reflected the view of many of the lower ranks within the MPS, in relation to the relevantly recent introduction of hospitality register publication:1207 many of the police officers and staff that I interviewed were obviously highly shocked by the amount of hospitality that the senior people appeared to be receiving; either hospitality in the sorts of things of dinners and lunches and so forth at rather expensive restaurants, but also some of them were receiving very large numbers of tickets to very expensive sporting events, so there were a set of things which some senior people had been receiving, others had not, others had not accepted, and that was clear. The issue of perception was raised again in this respect, as Mrs Filkin explained that people across the Met saw these things all as one and thought they should all be described as corruption.1208
10.10 In addressing these issues, Mrs Filkin produced seven key findings and recommendations, which focussed on: the methods of communication between the MPS and the public; the infrastructure within the MPS for such communications; corporate issues including leadership and trust within the MPS, as well as the management of ethical issues; the core principles outlining methods of contact with the media; and the transparency, and prevention of further unethical practices.1209 10.11 Mrs Filkin concluded that there was too much reliance on the print media by the MPS, which has affected the impartiality and independence of the force in the public eye.1210 The role of the Directorate of Public Affairs (DPA) has also come under scrutiny through the interviews conducted for the report. Mrs Filkin has expressed her concerns about the reluctance of information provision to the DPA, which have been shaped by two particular perceptions. She reported that there is a view that the DPA is unwilling in some instances to provide information to the public. Secondly that information is sometimes misused. Mrs Filkin has
1206 1207
p37, para 3.5, ibid p106, lines 4-14, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-5-March-2012.pdf 1208 p107, lines 11-13, ibid 1209 pp39-48, paras 4.1-4.7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-ElizabethFilkin.pdf 1210 p39, para 4.1, ibid
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argued that the current infrastructure of communications is damaging any attempts at a transparent corporate response in providing information to the public.1211 10.12 The report has also recognised a disparity in rules for senior leaders and lower ranks of police officers, in relation to the policy of receiving gifts and hospitality from the media. The report found that there has been no clear standard set by the senior team for police officers and staff to use as a guide for their own behaviour and in some instances the standards set have been poor and have led to consequent damage.1212 This particular issue was noted as a requirement for a change in the culture across the MPS, with clearer systems in place to monitor the exchange of hospitality between the media and the police. In this regard, the report also found that there has been a lack of consistent leadership in relation to the handling of information between the MPS and the media, particular the increased risk of improper disclosure to the media.1213 10.13 In her summary of findings, Mrs Filkin has referred to the problems identified by Sir Denis OConnors report on the review of police relationships. She has argued that the MPS should map ethical risks in order to keep such issues consistently on the agenda.1214 This would improve the corporate management of the MPS and provide guidance to staff for understanding appropriate conduct when faced with decisions on their interactions with the media. 10.14 As well as the issue of leadership and corporate management, the report concluded that the lack of transparency has also fuelled the perception that the relationship between the MPS and the media is secretive in nature. Mrs Filkin has reported on the fear expressed by journalists in relation to the suggestion for a greater degree of transparency in their contact with the police. Some, such as Nick Davies, have argued that this transparency risks stifling genuine investigative journalism in the public interest. Mrs Filkin has told the Inquiry that this is a real fear, and certainly journalists have expressed it very forcefully to me.1215 10.15 Lastly, Mrs Filkin concluded on the issue of prevention. Some of the sources she interviewed for the purpose of the report have expressed their views that the culture of leaks within the MPS is generally tolerated by the force. Mrs Filkin adds that she accept[s] that leak investigations are costly and often unproductive.1216 In this regard, Mrs Filkin has said that officers would welcome a stronger stance in the challenging, publication and deterrence of improper disclosure to the media. Recommendations of the Filkin Report 10.16 In light of the key findings of the report, Mrs Filkin has made the following recommendations to Commissioner Hogan-Howe and the MPS Management Board, in response to the terms of reference set out at para 10.3 above:1217
1211 1212
A new approach to communication based on more extensive, open and impartial provision of information to the public is needed. Relationships with the media need
p46, para 4.6, ibid p39, lines 4.2, ibid 1213 p41, para 4.2, ibid 1214 p41, para 4.3, ibid 1215 p21, lines 24-25, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf 1216 p47, para 4.7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf 1217 pp49-56, ibid
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to be part of this but not the driving force. I recommend that the Commissioner delegates responsibility and resources to a member of his senior team to champion a new approach to providing public information. Increasing openness with the public should be monitored through performance indicators.
The MPS senior team must signal a change in culture and set a consistent example for all staff on the ethical standards they expect, including how they relate to the media and the interpretation of the gifts and hospitality register. I recommend that the Commissioner delegates responsibility and resources to a member of his senior team to initiate change in the way the MPS approaches integrity and ethics issues at all levels. This role will provide the support and direction for staff to implement change and ensure improvements are tracked. This role holder will collaborate with the Public Information Champion. Responsibility for leadership on these issues is shared by all as peer pressure is the most effective way of improving behaviour. I recommend that all police officers and staff who provide information to the media should make a brief personal record of the information they provide. This record should be available if required by a line manager. Some of these records will be audited on a random basis. Wherever possible, published information should be attributed to the person giving it or more generally to the MPS. The MPS must establish the core principles which should underpin contact with the media. I recommend that contact with the media is permissible but not unconditional. This should be the overarching principle. Police officers and staff need to have new guidance that helps them understand the value of providing information to the public and supports them in making ethical decisions when doing so. Advice on contact with the media is an essential part of this. So are improved training, supervision and appraisal to ensure the principles become embedded. The MPS must reinforce the public service responsibilities of the Directorate of Public Affairs (DPA) and local communications work. These functions must operate collaboratively and with equal status. The MPS must make better use of alternative routes for communicating with the public and there must be a predisposition to release much more information than in the past both to the external and internal audience. The MPS must create an environment where the improper disclosure of information is condemned and deterred. Senior managers should make messages of deterrence strong and effective. Where leaks cannot be proved to the evidential standard required for a criminal prosecution, robust management action should nevertheless be pursued. However, whether there has been genuine harm should always be assessed before proportionate action is taken. Investigations should be seen as an important but subsidiary part of a broader preventative approach.
MPS response to the Filkin Report 10.17 The Filkin report and its specific recommendations have been positively received by the Metropolitan Police Service. Commissioner Hogan-Howe confirmed that the MPS would be
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implementing the recommendations set out by Mrs Filkin. He has told the Inquiry that the report is:1218 being considered by the new Deputy Commissioner Craig Mackey, who will provide an organisational response. This means that all the current policies concerning contact with the media and hospitality are to be reviewed and, as appropriate, amended to address the recommendations made in the Filkin Report. Fundamentally I want a principle of openness to be established. If we communicate with the press we need to be open about it, explain what contact there is and why. 10.18 In his evidence to the Inquiry, he also expanded on the MPSs response to the report and said specifically that we accept the findings. The conclusion that Elizabeth Filkin draws, we accept.1219 He explained that there would be some practical discussions in relation to the implementation of these recommendations. In this regard, the MPS are:1220 doing a little more work just to make sure that we operationalise that, and there was an appendix to Elizabeths work which was trying to make more practical some of the principled findings. There are one or two areas in that which probably we want to discuss a little more before we actually say that we accept that in total, but on the whole the broad thrust of the report we accept. Media response to the Filkin Report 10.19 There have, however, been some criticisms by the media in response to the Filkin Report. Sean ONeill, the crime editor of The Times, has strongly disapproved of the recommendations and the general tone of the report, using the term East German Ministry of Information1221 as a description of the language used by Mrs Filkin. He disagreed with the overall recommendations which give more power over the control of information, which it calls transparency.1222 Mr ONeill specifically questions the accountability of the senior officers, who are the same senior officer class who have brought all these problems upon the Mets head in the first place. It doesnt seem to me a sensible course of action.1223 He has said that the report has already contributed to a climate of fear and discouraged police officers, making them afraid of talking to the press. 10.20 Mr ONeill also elaborated on how the report has perceived women reporters, and has told the Inquiry that, if I were a female crime correspondent I would be furious, because it seems to imply theyre just a bunch of women in short skirts who are out flirting with people, and I dont think thats the case.1224 John Twomey, crime reporter of the Daily Express, has also told the Inquiry that the ideas for practical guidance were largely condescending and didnt
1218
pp11-12, para 27, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-ofCommissioner-Bernard-Hogan-Howe1.pdf 1219 p40, lines 9-10, Commissioner Bernard Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-20-March-2012.pdf 1220 pp40-41, lines 19-1, Commissioner Bernard Hogan-Howe, ibid 1221 p12, para 62, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sean-ONeill. pdf 1222 p30, lines 1-3, Sean ONeill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-21-March-2012.pdf 1223 p30, lines 4-8, ibid 1224 p29, lines 20-24, ibid
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quite go with the seriousness of the earlier part of the report. 1225 He also agreed that I think theres some condescending remarks about women in there.1226 10.21 Commissioner Bernard Hogan-Howe has firmly disagreed with the suggestions that the Filkin report has been patronising or condescending to police officers, and has told the Inquiry that:1227 I didnt take it in that way, and I thought it was written in a sensible style and encouraged people to think differently about something that had become a problem. So I couldnt see that myself. I didnt take it as patronising for police officers, but I cant speak really, I suppose, for the journalists who did.
11. Association of Chief Police Officers (ACPO)

11.1 Sir Huge Orde, President of the Association of Chief Police Officers (ACPO), in describing the bodys functions, said: ACPO brings together the expertise and experience of chief police officers from England, Wales and Northern Ireland. It provides a professional forum to share ideas and best practice, coordinate resources and help deliver effective policing which keeps the public safe.1228 ACPO is an independent, professionally-led strategic body.1229 Sir Hugh explained that in the public interest, and in equal and active partnership with Government and the Association of Police Authorities (APA) (although in relation to the APA, the position will change with the election of Police and Crime Commissioners in November 2012), ACPO leads and coordinates the direction and development of the Police Service in England, Wales and Northern Ireland. The Police and Justice Act 2006 confirms ACPO as a statutory consultee, and, as Sir Hugh explained: We are a company limited by guarantee. We had to have some legal position so we can employ people and rent buildings, for example, but the office of president is also enshrined in primary legislation in the Police Act 2002 but apart from that we have no statutory basis.1230 11.3 Sir Hugh described the functions of ACPO as including the facilitation of decision making by Chief Constables at a national level. It also provides national policing coordination, national policing communication, the national development of professional policing practice and oversight, through chief officers, to some national policing units. Sir Hugh explained that in the absence of a federal model of policing ACPO provides a voluntary structure to secure national agreements which underpin the ability of all forces to deliver consistent and interoperable policing to keep citizens safe and secure.1231 It is worthy of mention that ACPOs
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p59, lines 14-19, John Twomey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-19-March-20121.pdf 1226 ibid 1227 p31, lines 13-18, Commissioner Bernard Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-20-March-2012.pdfhttp://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/IPCC-Corruption-in-the-Police-2nd-Report.pdf 1228 p2, para 2.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-HughOrde.pdf 1229 p2, para 2.2, ibid 1230 pp82-83, lines 23-3, Sir Hugh Orde, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-hearing-28-March-2012.pdf 1231 p1, para 2.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-HughOrde.pdf
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current role and responsibilities are subject to change as the Government plans to introduce a new professional body for policing. Sir Hugh reported that it was not yet clear how ACPOs functions will be delivered in this new landscape but until that point it will continue in their current guise.1232 11.4 ACPO is currently composed of 340 chief officers holding a rank at or above Assistant Chief Constable (or the MPS equivalent: Commander). It also includes senior police staff colleagues of equivalent status, for example heads of human resources and finance, and in some forces the heads of communication and legal services.1233 The ACPO membership elects a full-time President, who holds the office of constable and the rank of Chief Constable under the Police Reform Act 2002.1234 Sir Hugh was elected President of ACPO in 2009: the term of office is four years and the incumbent cannot stand for re-election.1235 As President, Sir Hugh chairs a Council of Chief Constables and acts as the spokesperson for the profession of policing on national issues.1236 Sir Hugh described how his responsibilities differed from that of the MPS Commissioner, for example: I have no operational responsibility or indeed authority at all. My job is to really bring together and through negotiation get consistent national policies through what we call the Chief Constables Council, which meets four times a year My only technical operational responsibility, for example, if the fuel strike comes off, I will be responsible for making sure government is fully informed through Cobra and the Cabinet Office briefing room and my office will be responsible for co-ordinating any necessary movements of police officers around the country, as happened in the serious disturbances in August and as will happen in the pre-planned events around the Olympics. We co-ordinate the movement but the movement is given permission or authority by individual chief constables.1237 11.6 As Sir Hugh made clear, each police force operates independently of one another and manages communications with the media in respect of its own local policing. The role of ACPO is to provide a national voice for the Police Service to explain, inform and defend the operational work of the police service to cut crime and protect life.1238 Sir Hugh described this role in more detail: Its very much providing a facility that enables the national media to go to a single point of contact on matters that are of national interest, so in that sense we try and support the local forces where necessary. ACPO itself I describe very much as almost a band of volunteers. The business area work which is undertaken by chief constables is to try and provide continuity, consistency and at the top end of our business, a consistent approach to the serious threats this country faces, be it terrorism, international crime, public order, those sorts of issues, where you have to have a
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p11, para 16.2, ibid p2, para 2.4, ibid 1234 pp2-3, para 3.1, ibid 1235 pp83-84, lines 24-2, Sir Hugh Orde, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-hearing-28-March-2012.pdf 1236 pp2-3, para 3.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-HughOrde.pdf 1237 pp84-85, lines 9-9, Sir Hugh Orde, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-hearing-28-March-2012.pdf 1238 p3, para 4.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-HughOrde.pdf
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consistent approach.1239 11.7 There are 14 of the business areas referred to above within ACPO, covering 336 separate policing functions or types of crime (known as portfolios within ACPO) that are nationally led and coordinated by a Chief Officer. Sir Hugh explained that the Chief Officer led portfolios cover every sphere of police activity from police use of firearms to metal theft and are supported inside and outside the police service by an ACPO communications team which responds to national media enquiries concerning policing and crime reduction.1240 Sir Hugh went on to explain that the ACPO portfolio lead, through his or her national role, can draw on policing colleagues of all ranks and that with their support they can offer an informed view on behalf of the police service as a whole, rather than a single force.1241 ACPO has its own press office which works in support of the bodys national communications role. Sir Hugh said that the press office works in close cooperation with police force press offices but takes the lead in supporting the police services strategic response to national policing issues.1242 In expanding on this point, he said: Its very important that Im very keen that the president of ACPO, whoever holds this position, doesnt speak on all policing matters, we simply dont have the capacity to have a detailed knowledge. But what we do have for example are 14 business areas, for example crime is run currently by the chief constable of Merseyside, uniform operations matters is run by the chief constable of Norfolk. So if there was a matter pertaining to their specialism I would defer or my press officer would certainly make sure that someone from that business area was available to the national media to speak with authority on behalf of the association but with the depth of knowledge thats required to give a proper and informed answer.1243 11.9 ACPO also continues to play a coordinating role across areas of policing where the national interest requires that police forces act together and agree joint strategies.1244 Sir Hugh explained that this allows for Chief Constables to come together and develop a single approach nationally, being cheaper and more efficient than developing 44 strategies across each police force in England, Wales and Northern Ireland.1245 However, he pointed out that any national approaches remain subject to the local interpretation and implementation of operationally independent Chief Constables.1246 Furthermore, each individual Chief Constable remains entirely responsible for delivering at the local level; Sir Hugh argued therefore that it makes sense that a single voice for the service is available at the national level to explain the strategic implications of such policies.1247
11.8
11.10 It is also important to make clear at this stage that although national policing practice produced through ACPO is endorsed through the Chief Constables Council, its status remains one of guidance. As Sir Hugh made clear, ACPO has no role in securing compliance and any
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p83, lines 10-23, Sir Hugh Orde, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-hearing-28-March-2012.pdf 1240 p3, para 4.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-HughOrde.pdf 1241 p3, para 4.3, ibid 1242 p6, para 9.1, ibid 1243 p88, lines 1-14, Sir Hugh Orde, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-hearing-28-March-2012.pdf 1244 pp10-11, para 16.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-SirHugh-Orde.pdf 1245 ibid 1246 ibid 1247 ibid
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guidance produced does not supersede decisions of Chief Constables who are operationally responsible for the direction and control of policing within their own force area.1248 11.11 Given its national coordination role, ACPO was tasked with providing the Police Service response to the recommendations contained within HMICs report: Without fear or favour a review of police relationships (the HMIC report), which was published in December 2011.1249 One of the key themes running through HMICs recommendations was the need for national standards to ensure consistency of practice across individual force areas. The Home Secretary expanded on this point and said: What obviously became clear, particularly from the work that I commissioned from HMIC, was the variation in guidance that was being issued and being operated, and variation in systems that were being operated from police force to police force. The importance of a police force being able and a chief constable being able within his police force to have that independence of deciding how that force operates is part of the structure of policing that we have in the UK. Obviously, having now looked at the situation, the chief officers following HMICs report have felt that it is appropriate to put some more national guidance in place, but that obviously will still be operated by each of the police forces.1250 11.12 Sir Hugh concurred with this assessment. He said:1251 Theres always a tension between, you know, the clear steer of the current government towards a local bespoke style of policing and localism and driving down responsibility and theres always that tension between local agendas, local policies, local procedures, and the national central agenda. So its always a robust debate. I think certainly within the Police Service theres common agreement, it makes absolute sense that you can have one consistent approach, for example in relation to gifts and hospitality. The public will not understand why the standards are different across the country 1252 In relation to ACPO taking the lead on the Police Services response to the HMIC report, he made the point that: ACPO can mobilise quite quickly in response to HMI, for example, when its seen as critical to delivering a new policy, a new consistent policy which is important in terms of public confidence 11.13 Sir Hugh reported that the main element of the ACPO response relating to Police Service integrity and corruption was being led through the national lead for Professional Standards, Chief Constable Mike Cunningham. The ACPO response to those HMIC recommendations which specifically dealt with media relationships has been addressed under the leadership of Chief Constable Andy Trotter.1253 I will deal with each in turn.
p4, para 4.6, ibid p9, para 12.2, ibid; and see http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMICwithout-fear-or-favour.pdf 1250 pp9-10, lines 11-3, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-29-May-2012.pdf 1251 p90, lines 19-23, Sir Hugh Orde, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-hearing-28-March-2012.pdf 1252 pp90-91, lines 24-11, Sir Hugh Orde, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcriptof-Morning-hearing-28-March-2012.pdf 1253 p9, paras 12.2-12.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-SirHugh-Orde.pdf
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ACPOs response to the HMIC Report: Without Fear or Favour A Review of Police Relationships 11.14 Mike Cunningham was appointed as the Chief Constable of Staffordshire Police in 2009 and he took the lead of the ACPO Professional Standards Portfolio in June 2011 this portfolio sits within the Workforce Development Business Area of ACPO.1254 Mr Cunningham explained that the Professional Standards Portfolio is dedicated to raising and maintaining professional standards in the police service.1255 Given its centrality to the issues at hand, Mr Cunningham set out in broad terms his remit as portfolio lead: (i) (ii) (iii) strategic responsibility to identify and address emerging threats and respond to national issues which impact on the police services professional standards leading for ACPO on the development of preventative strategies to combat risk and emerging threats to operational policing and the reputation of the police service receiving and commissioning the work of the three Professional Standards Portfolio sub-groups, (Complaints and Misconduct, Counter Corruption, and Vetting). To address strategic issues and challenges in response to the ACPO & Serious Organised Crime Agency (SOCA) National Strategic Threat Assessment to UK Law Enforcement from Corruption identifying commonality with other ACPO business areas, (such as the Ethics portfolio), where reducing instances of and improved handling of public complaints can achieve improved public satisfaction and confidence through the quality of service provision, and overseeing the integration of professional standards issues into the strategies, policies and procedures of other business areas as appropriate identifying opportunities to more closely integrate unsatisfactory performance of officers and staff into professional standards, with a clear emphasis on ethical policing behaviour as opposed to mere compliance with regulations, and to improve public confidence in the police service through organisational learning monitoring ethical standards as they relate to aspects of policing such as the use of discretion, case management and the administration of justice, the use of force and other policing powers, custody and detention matters, gifts and gratuities, secondary employment and business interests, information confidentiality, personal standards of conduct and cooperation with partner agencies.1256
(iv)
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11.15 In discharging these responsibilities, Mr Cunningham chairs a quarterly meeting of the ACPO Professional Standards Portfolio which comprises the chief officer leads of the ACPO Complaints and Misconduct Working Group, ACPO Counter Corruption Advisory Group (ACCAG) and the ACPO Vetting Group together with staff association leads. The Independent Police Complaints Commission (IPCC) is represented by the Chief Executive Special advisers from within the service are invited as appropriate.1257 11.16 Mr Cunningham explained that the ACCAG Guidance for the Investigation of Corruption (first published in 2003, formally revised in 2006 and currently under review) identifies a number of common factors as potential corrupters. These include former police officers, particularly those in the security or private investigation sectors, family members and friends with criminal
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pp48-49, lines 18-11, Chief Constable Mike Cunningham, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Afternoon-Hearing-29-March-2012.pdf 1255 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Chief-Constable-MikeCunningham.pdf 1256 pp2-3, ibid 1257 p3, ibid
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associations, informants and other criminal contacts established through policing activity.1258 Mr Cunningham confirmed that the media was also identified as a source of corruption when confidential, sensitive or secret information is sought by journalists, in return for financial inducements or payment through gifts and hospitality.1259 Mr Cunningham went on to explain that what are described as payments through gifts and hospitality was not in itself identified as a significant risk.1260 He expanded on this point and said: The assessment has identified that the police officers have broadly two commodities with which they would trade, if I could put it that way. One is influence and the other is information. It seems from a chief officer from ACPO perspective that we need to put safeguards in place in order to handle safely the information that we hold and the relationships that officers have and develop, which could become corrupt. And so in terms of assessing the risk, the unauthorised handling of information is a significant risk for the service. And thats been identified in the SOCA strategic assessment of corruption. In order to deal with the handling of information and protecting information, a number of safeguards have been put in place but contingent upon all of those are relationships which officers subsequently develop. Family and friends was identified as the highest risk in terms of the unlawful disclosure of information. Former colleagues, particularly those in the private security industry, was also a risk. At the point in which the strategic assessment was done in the summer of 2010, journalists were identified as a risk, but not as high as those other groups.1261 11.17 In relation to the identified risk of family and friends and the unlawful disclosure of information, Mr Cunningham confirmed that this would on occasions be inadvertent disclosure, but On other occasions it would be criminal. So there are examples of an officer checking out the daughters new boyfriend through to officers who have criminals who are part of their family and actively seeking intelligence and information from police systems and passing that on.1262 11.18 Specifically in relation to gifts and gratuities, Mr Cunningham explained that the policies in place were intended to provide instruction and guiding principles to enable staff to make correct decisions and to act in compliance with widely recognised Standards of Professional Behaviour as described in the Schedule to the Police (Conduct) Regulations 2008 and related Home Office guidance (026/2008) on police unsatisfactory performance and misconduct procedures, and Standards of Professional Behaviour for Police Staff, as agreed by the Police Staff Council (PSC).1263 The relevant standards for police officers and police staff are described under the heading relating to Honesty and Integrity. Given their relevance I will reproduce the section in full: Police officers never accept any gift or gratuity that could compromise their impartiality. During the course of their duties police officers may be offered hospitality (e.g. refreshments) and this may be acceptable as part of their role. However, police officers always consider carefully the motivation of the person offering a gift or gratuity of any type and the risk of becoming improperly beholden to a person or organisation.
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p4, ibid p51, lines 1-10, Chief Constable Mike Cunningham, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Afternoon-Hearing-29-March-2012.pdf 1260 p51, lines 8-12, ibid 1261 pp51-52, lines 12-11, ibid 1262 p52, lines 12-21, ibid 1263 p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Chief-Constable-MikeCunningham.pdf
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It is not anticipated that inexpensive gifts would compromise the integrity of a police officer, such as those from conferences (e.g. promotional products) or discounts aimed at the entire police force (e.g. advertised discounts through police publications). However, all gifts and gratuities must be declared in accordance with local force policy where authorisation may be required from a manager, Chief Officer or Police Authority to accept a gift or hospitality. If a police officer is in any doubt then they should seek advice from their manager.1264 11.19 This guidance has been adopted by all police forces, including the MPS.1265 Mr Cunningham also confirmed that all forces have mechanisms by which advice and guidance on interpretation can be provided.1266 He said that there are formal regional structures for Heads of Professional Standards Departments which underpin and support each of the three ACPO Professional Standards Portfolio working groups. In addition, the Police Federation and the Police Superintendents Association of England and Wales (PSAEW) have misconduct leads and Panel of Friends with an ability to seek guidance from and to influence the formulation of policy and procedure to drive forward improvements in professional standards.1267 Any breach of the standards set out above would be deemed a disciplinary offence, which would be measured against the standard, in the police conduct regulations, and the guidance would assist the person whos making a judgment in relation to that breach in order to form a view as to the severity of that breach.1268 11.20 In leading on the response by ACPO to the HMIC report Without Fear or Favour A Review of Police Relationships, Mr Cunningham confirmed that three principal sets of guidance were being developed to address the reports recommendations; the first relates to the acceptance of gifts and hospitality; the second relates to officers taking secondary employment or having business interests; and the third relates to the polices relationship with the press and the media, on which Chief Constable Andy Trotter is leading.1269 Mr Cunningham candidly admitted that the delivery of national guidance would be a challenge for the service.1270 He expanded on this point and said: We clearly, I think, acknowledge and agree with HMIC that national guidance is required in these areas What will be a challenge will be to phrase that guidance in such a way as it can be applied to very different circumstances in different places. It needs to be sufficiently high level to be applicable to those different circumstances, yet sufficiently detailed to be meaningful. Thats the balance were trying to strike.1271 11.21 ACPO also clearly recognised that the issues raised by HMICs report were important ones for the Police Service as a whole. Mr Cunningham said: ACPO is approaching these issues with real energy and the reason for that is we do recognise that the issues under examination at the moment have potential and have been immensely damaging to public confidence. Immensely damaging to the relationship upon which we build effective policing. Because of that corrosive nature of the issues that were dealing with, we need to approach this very quickly. We are
1264 1265
p5, ibid p6, ibid 1266 p6, ibid 1267 p6, ibid 1268 p53, lines 14-19, Chief Constable Mike Cunningham, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Afternoon-Hearing-29-March-2012.pdf 1269 p57, lines 5-15, Chief Constable Mike Cunningham, ibid 1270 p60, lines 15-21, Chief Constable Mike Cunningham, ibid 1271 pp60-61, lines 20-5, Chief Constable Mike Cunningham, ibid
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heartened but absolutely not complacent by the fact that HMIC, IPCC and other people who have scrutinised the police agree that corruption and malpractice is not endemic or systemic. However, the actions of individuals, particularly senior individuals, has been and can be highly damaging. Thats why we need to act with the urgency with which were addressing this.1272 11.22 On 11 May 2012, Mr Cunningham wrote to the Home Secretary to provide her with an update on ACPOs response to the HMIC report. He reported that following a meeting on 20 April 2012, Chief Constables Council had strongly endorsed a comprehensive paper addressing HMICs main recommendations.1273 A copy of the paper was annexed for her information. Furthermore, Mr Cunningham said that following a meeting with the former Chief Inspector of the Constabulary, Sir Denis OConnor, and Her Majestys Inspector of the Constabulary Roger Baker on 3 May 2012 to discuss the ongoing work, he was pleased to report an encouraging endorsement of the paper, its content, the guidance we have adopted and are continuing to develop, and the direction of travel.1274 11.23 I have already dealt in more detail with the HMIC report and its recommendations elsewhere (see section 9 above). In summary form, the first two principal recommendations related to the institution of robust systems to identify, monitor and manage the risks identified in the report on the basis of national standards and expectations, and the need for the expression of clear, consistent and service wide boundaries and thresholds of acceptability.1275 The ACPO response paper records that significant consultative work has taken place (and is set to continue) with key stakeholders, including HMIC, the Home Office, Staff Associations, the IPCC, and the APA. Over the course of the past months, heads of professional standards departments and chief officers with delegated responsibility as Appropriate Authority have been increasingly focused on more robust governance of the risks from the matters reported upon in without Fear or Favour.1276 11.24 The ACPO response paper further records that three specific guidance documents have been drawn up to assist and inform decision making within and between forces which will engender a consistency of approach in defining and establishing boundaries of acceptable practice over matters of personal and professional integrity.1277 The first piece of guidance referred to relates to the management of business interests and additional occupations for police officers and police staff. The ACPO response paper notes that a more robust decision making framework has been prepared to promote a consistency of approach to the approval and regulation of business interests and additional occupations.1278 Importantly, the framework makes clear that adverse reputational impact is the key and over-riding consideration for decision makers, rather than personnel or health and safety factors as was previously the case.1279 11.25 Further changes to the guidance previously in place include a more definitive confirmation that the decision maker on the approval of business interests should be the appropriate authority or head of professional standards.1280 The updated guidance in this area also
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p62, lines 3-20, Chief Constable Mike Cunningham, ibid p1, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TM-4.pdf 1274 ibid 1275 p19, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-withoutfear-or-favour.pdf 1276 p4, paras 2.1-2.2, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TM-4.pdf 1277 p4, para 2.3, ibid 1278 p5, para 2.4, ibid 1279 p5, para 2.4, ibid 1280 p5, para 2.5, ibid
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provides a more specific set of criteria to assist decision making which should be taken into account when determining the appropriateness of a prospective business interest or secondary occupation for compatibility with the role or duty of the officer or member of staff, namely impartiality (predicted, expected or evidenced); impact on the force (potential and perceptions); the applicants current performance, proportionality (in relation to seniority and role); equality and diversity; and health, safety and well-being.1281 Finally, it is said that the revised guidance simplifies the previously overly bureaucratic procedures relating to the right of appeal against non-approval of a business interest.1282 The ACPO response paper makes clear that the guidance in this area is currently subject to further and final consultation in the Police Advisory Board working party.1283 11.26 In relation to the issue of gifts, gratuities and hospitality, the ACPO response paper reports that for the first time, ACPO guidance has been drafted to provide a more consistent servicewide approach to this issue.1284 Fundamentally, the guidance is based on a shift to a blanket non-acceptability save for certain circumstances of a common sense approach to the provision of light refreshments, and trivial and inexpensive gifts of bona fide and genuine gratitude from victims or communities.1285 The guidance also makes clear the expectation that a single force register of gifts and hospitality will exist under the direct governance and scrutiny of the head of professional standards.1286 11.27 The key guiding principles governing the acceptance of gifts, gratuities and hospitality are mandated within the revised guidance. The guidance, for example, reminds police officers and police staff that they should demonstrate the highest standards of professional behaviour, honesty and integrity. In particular they should not compromise or abuse their position by soliciting the offer of gifts, gratuities, favours or hospitality in any way connected to, or arising from, their role within the police service, whether on or off duty.1287 Furthermore, the guidance states that police officers and police staff should not accept the offer of any gift, gratuity, favour or hospitality unless it complies with the circumstances and considerations as set out [within the guidance] as to do so might compromise their impartiality or give rise to a perception of such compromise.1288 Importantly in my view, the guidance also makes clear that the offer of a gift, gratuity or hospitality should be declared irrespective of whether or not it is accepted or rejected by the recipient.1289 This level of transparency is of particular relevance in instances where there is a concern over the motivation behind the original offer. 11.28 More definitive detail and practical examples on the boundaries of acceptability and nonacceptability are also included. For example, the guidance makes clear the distinctions that exist in a spectrum whereby one extreme can properly be considered to be a breach of the criminal law (The Bribery Act 2010) through to the low-level of hospitality which could in no way be considered as a breach of integrity on any party involved.1290 Again, consultation in relation to this guidance has continued with the concept of a public conscience test to such
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p5, para 2.6, ibid p5, para 2.7, ibid 1283 p5, para 2.4, ibid 1284 p5, para 2.8, ibid 1285 p5, para 2.8, ibid 1286 p5, para 2.8, ibid 1287 p1, para 2.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/11/ACPO-Guidance-Gifts-ansHospitality.pdf 1288 p1, ACPO Guidance on Gifts, Gratuities and Hospitality, para 2.2, ibid 1289 p2, para 2.10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/11/ACPO-Guidance-Gifts-ansHospitality.pdf 1290 p5, para 2.9, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TM-4.pdf
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matters said to be a further aspect informing the debate.1291 I deal with the third piece of guidance in relation to media relationships in more detail below. 11.29 HMICs third principal recommendation sought to ensure that sufficient regard was paid to the issues of integrity and anti-corruption in police training courses. In particular, and given the importance of leadership in securing high standards of integrity, it recommended that the Strategic Command Course and the High Potential Development Scheme should encompass these issues.1292 The ACPO response paper reported that Chief Officers have taken steps to address this recommendation and have secured and delivered enhanced input on integrity and counter corruption to participants of the Strategic Command Course which concluded in March 2012 and also into the High Potential Development Scheme. This work will continue and will be refined in future courses and in other aspects of leadership development and training.1293 Furthermore, it is reported that ACCAG will commence the collation of data from across the service which will provide a refreshed analysis of strategic threats to law enforcement from corruption.1294 It is said that this work will assist chief officers in further improving governance around risks to integrity and will help to prevent and deter those engaged in corrupt practices. This work stream will also further inform the training and briefing of police officers and police staff at all levels.1295 11.30 Parenthetically on the issue of police training, I would endorse the Home Secretarys view that confidence and competence in communicating through various media channels are important at all levels chief constable, borough commander and neighbourhood officer, for example. But so too is a clear understanding of how relationships with those who work in the media should be conducted in a professional, open and transparent way.1296 On this issue, the Home Secretary reported that the new police professional body will consider where there are gaps in existing training and how this should be built into police officer and staff learning and development.1297 This certainly strikes me as an area of priority for the new body once instituted. 11.31 HMICs fourth substantive recommendation related to the promotion of improved corporate governance as a core part of everyday police business.1298 The ACPO response paper reports that chief officer teams and heads of professional standards have conducted force reviews of their governance and oversight arrangements to ensure that those arrangements are fulfilling their function in helping promote the values of their force in the delivery of its objectives.1299 Following this exercise it was said to be evident that chief officer teams need to be clear on their responsibility for ensuring Professional Standards Departments routinely scrutinise and provide governance over business interests, additional occupations, gifts and hospitality registers and oversight of procurement and contracts, and to ensure that this governance integrates with and promotes the values of the individual force and the wider service.1300
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p5, para 2.10, ibid p19, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-withoutfear-or-favour.pdf 1293 p6, para 3.1, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TM-4.pdf 1294 p7, para 3.4, ibid 1295 ibid 1296 pp22-23, para 95, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-ofTheresa-May-MP.pdf 1297 pp22-23, para 95, ibid 1298 p20, Sir Denis OConnor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-withoutfear-or-favour.pdf 1299 p7, para 4.1, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TM-4.pdf 1300 p7, para 4.2, ibid
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11.32 ACPO also suggest that there is scope for individual forces and the Police Service more generally to obtain increased synergy from the values espoused within the Statement of Common Purpose and the firmly embedded Standards of Professional Behaviour.1301 The Statement of Common purpose was revised in July 2011 and includes, for example, the aspirational principle that the police will act with integrity, compassion, courtesy and patience, showing neither fear nor favour in what we do.1302 Chief Officers are also encouraged to ensure that the aspects of integrity examined and reported upon in Without Fear or Favour are subject to more regular scrutiny and oversight as matters affecting force reputation.1303 In concluding, ACPO suggest that the collective police service can best demonstrate its legitimacy, ethics and values by being seen to be leading by example by instilling regular and consistent governance and oversight of integrity and wider professional standards as part of the wider governance and as part of everyday business of the force.1304 I would obviously agree with this assessment and it is a subject to which I will return in my concluding remarks. 11.33 One matter raised through HMICs report in relation to which there is not yet a collectively agreed ACPO view is that of the perception of the prospect of personal gain where senior leaders (including those within ACPO and at other levels of seniority) retire and either immediately or shortly thereafter take up posts with commercial companies keen to take advantage of a working lifetime of experience in policing, community safety, specialist investigations or ethical organisational leadership.1305 ACPO suggest that further debate and analysis is needed to manage the question of public perception when morally, ethically, and legally there are no barriers to prevent a retired officer from contributing to the wider policing framework as they see fit once free of obligations to public service.1306 I deal substantively with this particular issue elsewhere. Interim ACPO guidance for relationships with the media 11.34 This guidance is of particular relevance to the Inquiry given the detailed evidence that has been taken from a number of Chief Officers, other witnesses from within the Police Service, policing stakeholders and journalists relating to concerns over the polices relationship with the media. The guidance itself was published in April 2012 following its approval by Chief Constables Council. Its described purpose is to provide a framework for police officers and staff with an interim approach on the relationship of the police service with the media, in all its forms.1307 Its interim status reflects the fact that it was anticipated that further changes to the document would be required as a result of this Inquiry. 11.35 The person principally responsible for the production of this document was Chief Constable Andy Trotter, Chair of the ACPO Communications Advisory Group (CAG).1308 In describing the role of CAG, Mr Trotter said: That is to bring together the heads of communications from the various police forces, England, Wales and Northern Ireland, plus others who come along as observers from time to time, to discuss recent best practice, discuss recent incidents, debrief
1301 1302
p7, para 4.4, ibid http://acpoprofessionalethics.org/default.aspx?page=somav 1303 p7, para 4.4, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TM-4.pdf 1304 p7, para 4.6, ibid 1305 p7, para 4.7, ibid 1306 p7, para 4.7, ibid 1307 p2, Interim ACPO Guidance for relationships with the Media, http://www.acpo.police.uk/documents/reports/2012 /201204IntGuiMediaRels.pdf 1308 p1, para 1.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefConstable-Andrew-Trotter1.pdf
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matters, also to formulate policy, which we then circulate to forces around the country.1309 As Chair of CAG, Mr Trotter acts as the ACPO professional lead for media relations.1310 He explained that as such I represent the views of the police service to media organisations and representative bodies such as the Society of Editors, Newspaper Society and National Union of Journalists. Accordingly from time to time I meet with editors and journalists to discuss any areas of current concern. I also liaise on media issues with other organisations who work with police forces such as the Independent Police Complaints Commission (IPCC) and the Crown Prosecution Service (CPS).1311 11.36 The guidance itself is said to reinforce a stance of maintaining open and transparent dealings with the media at all levels of the service for the benefit of the wider public interest, provide clarity for officers and staff on ensuring they speak on those aspects of policing for which they are specifically responsible, and provide additional clarity on the speaking terms (what constitutes on and off record and what is for publication) to prevent misunderstanding.1312 A clear expectation is also created that any police officer or member of police staff meeting in private with a journalist must make a note of the meeting or disclosure which should be recorded in either a diary or pocket book.1313 In addition, the guidance states that where an officer or member of staff speaks to the media about a significant operational or organisational matter, a record of the conversation should be made (unless in a public forum, such as a public meeting or through the internet or a social media feed).1314 11.37 A number of key principles underpin the guidance. Given their relevance I will reproduce them in full:1315 Legitimacy is an essential aspect of the British policing model, based on consent. The press and other forms of media play an important part in assuring police legitimacy and protecting the public interest. Police interaction with the media should be guided by a legitimate policing purpose, which is one related to the core values and standards of policing, set out in the Statement of Mission and Values. The relationship between police and media should be undertaken in a manner which lives up to the highest standards of impartiality and integrity. The police service has a duty to safeguard the confidentiality and integrity of information, which must be balanced against the duty to be open and transparent wherever possible. 11.38 It is clear that a degree of confusion has existed in relation to the terminology used by journalists to establish the basis for a conversation with police officers and police staff (see section 2 above). The guidance attempts to address this issue by providing a set of general definitions:1316
1309
pp38-39, lines 21-2, Chief Constable Andrew Trotter, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-hearing-28-March-2012.pdf 1310 p3, para 3.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefConstable-Andrew-Trotter1.pdf 1311 p3, para 3.1, ibid 1312 p6, para 2.13, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TM-4.pdf 1313 p6, para 2.14, ibid 1314 p6, para 2.14, ibid 1315 p4, paras 2.1-2.4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Submission-from-ACPOInterim-Guidance-for-relationships-with-the-Media.pdf 1316 p5, para 3.5, ibid
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(a) On the record means that a journalist can report, quote and name their source. Where possible, all conversations should be on this basis and it should always be assumed that a conversation is on the record unless expressly agreed otherwise in advance. (b) Background/guidance means that information provided can be reported without it being attributed to a source, whether named or not. This is sometimes used to provide further context around an on the record statement. Off the record means that use of information provided is restricted altogether. Occasionally there may be a legitimate reason for an off the record conversation or briefing to take place, such as where news reporting may have an impact on a current investigation or as a means of preventing inaccuracies or misunderstanding.
(c)
11.39 Given that the terminology is sometimes misunderstood or used interchangeably, the guidance emphasises the importance of clarifying how they will apply before exchanging information.1317 It also suggests that it is good practice where possible to have a press officer present in circumstances where a police officer is meeting or speaking with a journalist privately.1318 This is obviously sensible advice. I deal with the distinct issue of off the record conversations elsewhere within this Report (see section 2 above). 11.40 In relation to the issue of integrity, the guidance reminds police officers and police staff that it is essential to the standards of integrity demanded of the police service that police officers and staff should recognise and avoid or respond appropriately to potential conflicts of interest. These can be understood as situations where there may be competing obligations or interests to those which relate to the legitimate policing purpose for engaging with the media.1319 Specifically in relation to the issue of potential conflicts, police officers and police staff are again reminded that any family or personal relationships with members of the media should be disclosed and recorded.1320 Perhaps most importantly, the guidance makes clear that police officers and police staff have a clear duty to report to a line manager any corrupt practice or perception of corruption (e.g. offer of reward for information, any unacceptable level of hospitality, or seeking to engender an inappropriate relationship).1321 11.41 In concluding, the guidance is clear that is does not provide the answers to every conceivable situation but rather it provides an approach and ethos to assist those within the Police Service to establish a productive and transparent relationship with the media. 11.42 The Home Secretary welcomed the ACPOs proposals and the continuing work taking place to address the recommendations contained within HMICs report.1322 She said that this continuing work will need to focus on how the police, including senior leaders and those working in Professional Standards in particular, can play a proactive role in promoting and championing the new sets of guidance and monitoring compliance in order to bring about the real changes in attitudes and behaviours on integrity issues we are seeking.1323 This is obviously a significant point. Transactional change in the form of new guidance and procedures, whilst important, can be rendered relatively meaningless if it is not also aligned with cultural change (in the form, for example, of a more transparent and challenging environment particularly at ACPO level).
1317 1318
p5, para 3.6, ibid p5, para 3.8, ibid 1319 p5, para 4.1, ibid 1320 p5, para 4.2, ibid 1321 p6, para 4.6, ibid 1322 pp1-22, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TM-4.pdf 1323 pp1-2, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TM-5.pdf
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11.43 This leads me to an area of specific concern. I am confident that Police Professional Standards Departments, working within the framework of the newly developed guidance, will robustly ensure that those operating below Chief Officer level entirely comply with the policies and procedures in these areas, and will effectively tackle malpractice where necessary. However, I am less confident in their ability to challenge Chief Officers directly on integrity issues in other words, albeit in a different context to that which I have usually used this phrase, who will be the guardian of these guardians? Neither is this a theoretical issue. It has not gone without notice that there have been a number of incidents of concern recently which may have called into question the robustness of the corporate governance arrangements in place within forces.1324 11.44 I entirely recognise that any recommendations that I make in this area may be temporary in nature. Police and Crime Commissioners (PCCs) are now in place, and nationally the Home Office will be creating a police professional body which will be responsible for standards, skills and professionalism at all levels of policing. This new body will also play a very active role in setting standards of ethics and integrity.1325 That being said, I set out my views and recommendations as to the way forward in Part G Chapter 4 below.
1324
See for example the findings of the Hillsborough Independent Review Panel, the dismissal of the Chief Constable of Cleveland Police and the suspension of the Chief Constable of Cumbria Police 1325 p29, para 123, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-TheresaMay-MP.pdf
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CHAPTER 4 THE PRESS AND THE POLICE: CONCLUSIONS AND RECOMMENDATIONS

1. Introduction
1.1 The subject-matter of Module Two of the Inquiry was the contacts and the relationship between the press and the police, and the conduct of each. At the heart of this issue was the straightforward question (which is the same as will be discussed in respect of politicians): did the relationship become too close? In order to arrive at a fair and comprehensive picture, the Inquiry has examined many facets of that way in which press and police interact. It has done so by looking at the overlapping issues of tip offs, taking media on operations, off-therecord briefings, leaks, whistleblowing, gifts and hospitality, entertainment etc. This list is lengthy but the issues underlying each of these areas have been similar. The words integrity and perception are common refrains. Putting the matter at its lowest, if a police officer tips off a member of the press, the perception may well be that he or she has done so in exchange for past favours or in the expectation of some future benefit. At its highest, the issue becomes one of integrity for the police officer: his or her professional standing may be put under scrutiny. And the issue is exactly the same for off-the-record briefings and leaks (to cite just two of these foregoing examples), although separate points in essence discrete matters of detail arise in each individual case. Integrity lies at the heart of policing by consent, and it is damaging enough if there is even the perception that a police officer may not be discharging his or her duty with complete transparency and disinterest. Ultimately, problems of perception lie at the heart of the public concerns regarding the police investigation into phone hacking up to January 2011 and the commencement of Operation Weeting. The full history has been examined at length above,1 and my conclusions need not be restated here; but what is inescapable is that the harm to the reputation of the Metropolitan Police Service (MPS) in general and certain individual police officers in particular has been immense. I have already referred to the fact that a very damaging perception was created that the NoTW exercised an inappropriate degree of influence over the MPS, including a number of senior police officers and other employees. Public confidence is in the process of being restored by the work of the MPS since January 2011 and, I hope, the transparent process of this Inquiry. I mention the MPS specifically in the context of the investigation into phone hacking, but I am able to go further. The problems in the relationship between the police and the press covered by the evidence adduced during the course of Module Two of the Inquiry almost exclusively related to the MPS; save for isolated examples, typically arising when an event of national newsworthiness arose in the regions, the 43 police forces2 outside the metropolis enjoy sound relationships with the press, and the conduct of each gives rise to no concern. I will touch on possible explanations for this later.
1.2
1.3
1.4
Part E Chapter 4 I take the figure of 44 as the total number of police forces in England and Wales. I do not intend to exclude Scotland and Northern Ireland from my general observations on this issue, although I recognise that the Inquiry received much less evidence about them
2
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Chapter 4 | The Press and the Police: Conclusions and Recommendations
1.5
I will examine each of the issues I have identified above in turn, and set out my conclusions and recommendations under separate headings, but at this stage I dwell on common or generic matters. There are a number of interrelated considerations which need to be set out. First, the scale of the problem needs to be kept in proportion. The Inquiry has not unearthed extensive evidence of police corruption (noting, as it has done, the current position in relation to Operation Elveden which is concerned with payments to public officials generally); nor is there evidence satisfying the standard of proof I am applying to findings of fact in this Inquiry, namely the balance of probabilities, that significant numbers of police officers lack integrity in one or more of the respects I have examined earlier.3 Speculation, suspicion and legitimate perceptions may abound, and troubling evidence has been identified in a limited number of cases, but the notion that this may be a widespread problem as a matter of fact is not borne out. Having made that important point, I recognise that breaches of professional standards of the nature under consideration are extremely difficult to prove. Journalists protect their confidential sources, particularly if a briefing is off-the-record; tip offs may be suspected (in some cases, going so far as to generate a reasonable inference) but clear-cut evidence is usually lacking. Further, the difficulties inherent in conducting an effective leak inquiry are legion. These are all factors which I need to continue to bear in mind when examining the issue on a generic rather than a case-specific basis, and I do not overlook the fact that the Terms of Reference require me to approach my responsibilities, so far as is possible, at a reasonably high level of generality. Another highly relevant consideration is the need to find the right balance between relationships that are overly close and those which are non-existent. The importance of the free-flow of information (that is to say, appropriate information) between the police and the press cannot be overstated. The press have an important role in holding the police to account, and this entails building up relationships of trust with police officers thereby allowing the free exchange of information within relevant guidelines. Further, the whole concept of policing by consent requires the engagement of the public, and very often this will be best achieved through the mediation of the press. There are many respects in which off-the-record briefings operate against the public interest, but in some, the public interest will be well served. By way of example, trusted journalists will benefit from a background briefing which enables reporting on specific topics to be placed in their proper context; the press may be warned off pursuing certain lines of inquiry or publishing a story on a particular occasion through concern that a police investigation may be prejudiced. Further, albeit in a different context, although generally speaking drinking alcohol in a professional context amounts to poor judgment, and should not happen, there may well be occasions, admittedly relatively rare, on which it is unobjectionable. The point I am making is a short and simple one; I am addressing the need to find the right balance, the mid-course between policies and practices which are overly prescriptive one way or the other. In many cases the straightforward application of common sense will be a sufficient guide: the Chief Constable of Avon and Somerset, Colin Port, referred to this as the blush test. Yet, although that may work perfectly well for the vast majority of police officers working hard and conscientiously in the public interest, some may blush less readily than others. Furthermore, there remains a need for written policy guidance which is clear and directive, and caters for the majority of situations. One issue which the Inquiry has focused on is the variability of such guidance across the Police Service as a whole. There is a need for greater
1.6
1.7
1.8
1.9
Part G Chapter 3
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consistency in certain instances, and for an overarching set of principles. I appreciate that both Her Majestys Inspectorate of Constabulary (HMIC) and the Association of Chief Police Officers (ACPO) are addressing this issue, but further work needs to be done. 1.10 Another factor which I bear in mind, and this harks back to what I said about the MPS, is that senior police officers working in London are expected to have a public face: they speak for the organisation as a whole in the public domain, often on issues of huge importance and concern, and in so doing will necessarily engage with the press. I do not overlook the fact that Chief Constables will also need to form professional relationships with their regional titles, but the pressures and expectations are not quite the same. Furthermore, there has been an understandable tendency for senior police officers operating in London those at the rank of Assistant Commissioner and above legitimately to regard themselves as akin to political figures in the sense that the nature of their work can regularly place them in the public eye. As I have already pointed out, a number of Commissioners of the MPS have deliberately courted professional relationships with the press, amongst other reasons, in an effort to enhance the standing of the service in the minds of the public. But the distinction between endeavouring to improve the standing of the Service on the one hand, and working in the pursuit of self-interest on the other, may be a fine one. The Police Service is also a hierarchical organisation with clear command structures and delineations of authority. This has at least two consequences. First and foremost, junior officers will look up to their seniors for professional and ethical guidance; not necessarily by expressly seeking advice, but rather for the example they might set. If a highly ranked officer is known to be wined and dined in expensive restaurants by representatives of the press, that has the potential to set the standard for those underneath him or her. Leading from the front carries with it both its privileges and its responsibilities. Secondly, and even more problematically, the chain of command makes it difficult for junior officers to report their seniors for breaches of professional standards, and at the very least there will be a perception that those in command of the Professional Standards Divisions (PSDs) of police forces may naturally be disinclined to approach concerns drawn to their attention regarding officers of a higher rank, if only because of the natural assumption that senior officers know what they are doing and doubtless can fully justify what, in a more junior officer, might be open to challenge. All this is human nature, and to that extent completely understandable; and pragmatic solutions need to be devised to address potentially intractable problems of this nature. Another factor I bear in mind is the risk of over-reaction. Lord Condon, a former Commissioner of the MPS, spoke of twenty year cycles, being something akin to scandal, inquiry, remedial action, relaxation, complacency, scandal, inquiry.4 What he did not state expressly is that the remedial action has the potential of going too far in the direction of disengagement or, speaking more colloquially, battening down the hatches. Again, this is no more and no less than human nature, but one needs to identify the potential risk in order to guard against it. Before turning to examine the specific matters which were addressed above,5 I need to put all of this into perspective by drawing attention to one answer Neil Wallis gave when pressed by Counsel to the Inquiry about his relationship with Lord Stevens when the latter was Commissioner of the MPS:6
1.11
1.12
1.13
p47, lines 18-21, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofMorning-Hearing-6-March-20122.pdf 5 Part G Chapter 3 6 pp25-26, lines 12-11, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-2-April-2012.pdf
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A. This is really difficult, because I just find it John Stevens is an officer who worked for 40-odd years in the police. He lived his life, 20 years, as a target for IRA assassination as he carried out the Stevens 3 Inquiries. He was the man who was the gangbuster in Northumbria. He came down here. He bust corruption in the Met. So the suggestion is that this man of integrity, of experience, of immense crime-fighting ability, is going to be seduced by me taking him down to Cecconis and having steak and chips and a nice bottle of wine? I just cant begin to see where this comes from. All Im saying is: have you ever had a working lunch? Have you ever had a working lunch with somebody more than once? Have you ever had a drink at that working lunch? You may well have not. I guarantee everybody in this room just about has and it is the way of the world. That is all Im saying. Im not suggesting I certainly wont accept the idea that me going for dinner with a police officer is any different from a civil servant going for dinner with a businessman. I see no difference in it at all. I might be wrong, but LORD JUSTICE LEVESON: Im not sure you are wrong. A. Im certain Im not. 1.14 For ease of reference and understanding, I will set out my conclusions, and then my recommendations, in relation to the specific matters covered above.7 Often, I will draw on my earlier analysis, expanding it only where I need to place my conclusions into context. I should record that I have had regard to the detailed and helpful closing submissions lodged by the Core Participants in relation to Module Two (as with the other modules): save in isolated instances, I do not refer to these expressly, but they have aided the development of my thinking on these matters.
2. Tip offs
2.1 By way of overview, the evidence that the Inquiry received on this issue could fairly be described as light in relation to specific incidents (ie it would rarely discharge the standard of proof I am applying to findings of fact), but it is reasonably compelling at a higher level of generality. Looking at the bigger picture, a critical mass of convergent evidence begins to be persuasive. Furthermore, putting the jigsaw together, rather more general inferences may be drawn; these cannot always be explained away by coincidence or invoking some other explanation. Tip offs are but one aspect of the wider problem of leaks. I have made the point, both in this context and elsewhere, that the more robust the systems and processes in place to mitigate the risks of leaks from within an organisation the better. I have also said8 that it is sensible to go one stage further. It should be a matter of serious professional concern to the police that information about their activities which should be kept confidential remains so. The presence of the press at a high profile arrest may provide positive coverage although, unless very carefully handled, it may also give rise to difficult issues of fairness within the criminal justice process. Obviously, if for good reason, a decision has been taken to brief the press about a forthcoming arrest and to allow representative attendance, the risks (and the responsibilities to the target of an arrest) should have been calibrated and taken into account. If there is no such authority, however, and there is a legitimate inference that someone (whether police officer or civilian employee of the police) has leaked the information to the press generally or a journalist specifically, I do not take the view that this is just one of those things. It should not have happened.
2.2
7 8
Part G Chapter 3 Paragraphs 2.18-2.20, Part G Chapter 3 above
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2.3
The professionalism required of police officers must be sufficiently robust to instil the mindset that such leaks about forthcoming arrests or the involvement of the famous in the criminal justice system are not in the public interest, and that the provision of appropriate briefing as to police activity should only be handled through open and transparent procedures which have taken account of all relevant circumstances: they should not be by the back door. I do not have any individual recommendations to make which are specific to the issue of tip offs, as opposed to the related issue of leaks. However, police forces should bear in mind what I have said about the importance of adherence to professional obligations and the need for these decisions to be made in a formal and transparent manner, not clandestinely still less involving self-interest.
2.4
3. Involvement of the press on operations

3.1 Here, there are none of the evidential issues I have mentioned in the context of tip offs, in the sense that the fact of a press presence at an arrest or similar operation will be obvious. Nor do I have a sense that such problems that have existed in the past give rise to special concern. Nonetheless, I do recognise that there are issues which could arise of privacy under Article 8 and fair trial under Article 6 of the European Convention on Human Rights (ECHR), particularly in the sort of high-profile case which may be of the most interest to the press. There are also issues of perception and favouritism, although the evidence I have heard falls short of suggesting anything close to an exchange of favours. I have already pointed out that there is existing ACPO Guidance9 and formal MPS policy10 on this issue. The question arises as to whether these documents are sufficient to assuage public concerns in this respect. As I have made clear above,11 I detected in much of the reflective evidence I heard on this issue a sense that there needs to be a further tightening of the current approach. Overall I would endorse the general views of the Commissioner, Bernard Hogan-Howe, and Chief Constable Andrew Trotter, of the British Transport Police, on this issue. Police forces must weigh very carefully the public interest considerations of taking the media on police operations against the rights of the individuals who are the subject of such an operation. Forces must also have directly in mind a consideration of any potential and consequential impact on the victims in such cases. More generally, I think that the current guidance in this area needs to be strengthened. For example, I think that it should be made abundantly clear that save in exceptional and clearly identified circumstances (for example, where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not be released to the press or the public: these details are not routinely announced by way of press release; that the press were present at the arrest should make no difference.
3.2
G
3.3
The ACPO Advisory Group 2010 Guidance http://www.acpo.presscentre.com/imagelibrary/downloadMedia. ashx?MediaDetailsID=238, referred to at paragraph 2.23, Part G, Chapter 3 above 10 MPS Special Notice 6/01 referred to at paragraph 2.23, Part G, Chapter 3 above 11 Part G Chapter 3 Section 2
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4. Off-the-record briefings
4.1 It has already been noted that this terminology generates a degree of confusion, which in itself has the capability to undermine adherence to professional standards. Given the room for debate about the meaning of this term and others describing the status to be accorded to information supplied by police officers, it is unsurprising that the current Interim ACPO Guidance for Relationships with the Media seeks to define the widely deployed terminology expressly:12 On the record means that a journalist can report, quote and name their source. Where possible, all conversations should be on this basis and it should always be assumed that a conversation is on the record unless expressly agreed otherwise in advance. Background/guidance means that information provided can be reported without it being attributed to a source, whether named or not. This is sometimes used to provide further context around an on the record statement. Off-the-record means that use of information provided is restricted altogether. Occasionally there may be a legitimate reason for an off-the-record conversation or briefing to take place, such as where news reporting may have an impact on a current investigation or as a means of preventing inaccuracies or misunderstanding. 4.2 I have already recognised that the use of off-the-record briefings, properly understood, may be a valuable resource in the context of an established, trusting relationship between a police officer and a journalist. Without seeking to revisit the terminological debate, background/ guidance briefings are also capable of working in the public interest, as opposed to the private interests of the police officer or the journalist. On the other hand, risks clearly exist and these are of a similar nature to those already highlighted in Sections 2 and 3 above: the potential for confidential information to be disseminated and then published; the perception that inappropriate relationships will be created and favours exchanged. I have already pointed out that Elizabeth Filkin in her report into the ethics of the press and police relationship, agreed that there was value for the Police Service in the limited and responsible use of off-the-record communications. She was specific about this:13 I have no doubt that the police will have to occasionally do off-the-record briefing, because otherwise they would jeopardise an investigation, and a reporter may have got a bit of a story which, if they ran it, would be very harmful, and the only way to prevent that being run, in a sensible fashion, would be to give them an off-the-record briefing and to tell them that you would inform them as soon as you could when it was possible to let that get out onto the public airwaves. 4.4 I certainly agree that, in the circumstances outlined above, and for example in the context of counter-terrorism operations or other sensitive police investigations, some form of nonreportable or confidential briefing mechanism should continue to be available as a limited tool for the Police Service in their interaction with the media. I am not sure that any more specific guidance from me in this area is necessary or would be helpful.
4.3
12
Interim ACPO Guidance for Relationships with the Media, para 3.5, http://www.acpo.police.uk/documents/reports/2 012/201204IntGuiMediaRels.pdf 13 p30, lines 2-11, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf
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4.5
However, I would make the following observations. Given the confusion that clearly exists between journalists and police officers and police staff alike in relation to the term off-therecord, I believe that serious consideration should be given to its removal from the lexicon of police and media contact. Aside from the confusion in actual meaning, a negative connotation has also developed which implies that any exchange of information through off-the-record contact is being done on a surreptitious basis. In my view, greater clarity of thought and consistency of application would be achieved if two descriptors were used. What is critical is that there should be no doubt about the status of all that passes from the officer to the press. I recommend that the term off-the-record briefing should be discontinued. The term non-reportable briefing should be used to cover a background briefing which is not to be reported, and the term embargoed briefing should be used to cover a situation where the content of the briefing may be reported but not until a specified event or time.14 In my judgment, these terms more neutrally describe what are legitimate police and media interactions.
4.6
In their written submissions at the conclusion of Module Two, the MPS set out its position as follows:15 The current thinking of the MPS is that there should be a requirement that a record be made of every contact between an MPS officer and a journalist. The purpose of that requirement would be to make it possible to ascertain, if the need ever arises, the nature and frequency of the contact, the level of contact and reason for contact. This, it is anticipated, would serve both as an incentive for personal discipline and a means for discovering and discouraging the unauthorised release of information. The guiding principle for the future regulation of contact with the media should be one of openness, allowing the Police Service to engage constructively with the media whilst ensuring that it can be held to account for its relationship with its media
4.7
I welcome and endorse almost the whole of this contribution, save for the qualification that I would distinguish between a requirement and good practice in relation to the recording of contact between junior officers and journalists. I would also endorse the comments both of Roger Baker,16 Her Majestys Inspector of Constabulary, and Mrs Filkin in relation to the need for transparency in this area. If the police are simply seeking to correct an inaccuracy within a story, for example, then I can see no legitimate reason why that contact should not normally be considered to be on-the-record (there may be rare occasions when the correction needs to be off-the-record to avoid identifying an individual suspect). More generally, although I would also encourage junior officers and staff to do the same (principally for their own protection),
4.8
14
Briefings may be a combination of the two: for example, part embargoed (i.e. reportable later) and part nonreportable (ie background only, and never to be reported). Equally, a briefing may be in part on the record and, in part, embargoed or non-reportable. 15 Paragraphs 11.16 and 11.17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/closing-submissionsfor-Module-2-from-MPS.pdf 16 Paragraph 2.76, Part G, Chapter 3
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I recommend that it should be mandatory for ACPO rank officers to record all of their contact with the media, and for that record to be available publically for transparency and audit purposes. This record need be no more than a very brief note to the effect that a conversation has taken place and the subject matter of that conversation. Where the discussion involves a more significant operational or organisational matter, then it may be sensible for a more detailed note to be retained. Finally, in circumstances where policy or organisation matters may be on the agenda for discussion, it is good practice for a press officer also to be present. 4.9 Given the important role that the press play in assuring police legitimacy and in protecting the public interest I certainly do not want to discourage contact between the police (at all levels) and the media. It also remains important that the appropriate degree of contact is maintained between the press and junior officers. Subject to what I have already said, the latter should be trusted to use their judgment to do what is right and not to do what is wrong, and be accountable for the consequences. However, where there is an incident of unauthorised disclosure, the lack of any record may in itself be a determining factor when assessing the propriety of what has happened in the context of an internal police leak investigation (assuming that there is other probative evidence which links the police officer to the leak). Finally, and most importantly in my view, police officers at all levels must only communicate with the media within their own area of competence. I would entirely endorse and, thus, I recommend as good practice the simple rule included within the Interim ACPO Guidance for Relationships with the Media which is:17 Police officers and staff should ask: am I the person responsible for communicating about this issue and is there a policing purpose for doing so? If the answer to both parts of this question is yes, they should go ahead.
4.10
5. Leaks of information
5.1 This issue shares many themes in common with the previous topics in particular, the disclosure of unauthorised, if not confidential, information to the press but there is often an added dimension, namely a less than selfless motive. Leaks may take place because a police officer genuinely believes that this may be the best way of placing misconduct or impropriety into the public domain, but sometimes the motive is little other than personal disgruntlement or the desire to wound colleagues. Putting to one side the instances where such motives are in play, the issue of leaks clearly overlaps with the issue of whistleblowing which I address in Section 8 below, but at this stage I am looking at the matter more broadly. I fully accept and understand that the issue is much more nuanced than the foregoing short summary conveys, and I invite attention to my detailed examination of this topic above.18 As with tip-offs, there are serious evidential issues. Leaks are notoriously difficult to investigate, and often a suspected leak turns out to be something different: the press may have obtained relevant information from some other source, or may simply have indulged
5.2 5.3
17
Interim ACPO Guidance for Relationships with the Media, para 10.3, http://www.acpo.police.uk/documents/report s/2012/201204IntGuiMediaRels.pdf 18 Part G Chapter 3 Section 2
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successfully in an exercise in speculation. More specifically, Mr Baker suggested that leak investigations can be made more difficult by the fact that there is a sloppiness of rules around what is permissible and what isnt.19 HMIC, through its report Without fear or favour a review of police relationship, also stressed the need for national standards in this area.20 I would fully endorse that recommendation and I have dealt with the ongoing response of Police Service fully above.21 5.4 In Section 4 above, I have recommended that it should be mandatory for ACPO rank officers to record all of their contact with the media, and good practice for junior officers and staff (for their own protection). I entirely accept that this in itself will not prevent a determined individual from leaking. However, as Commissioner Hogan-Howe pointed out,22 a record of that individuals account would be a starting place for an investigation. A degree of lack of transparency in this area is inevitable given the often understandable desire of the media to protect the identity of their sources. Given the reputational damage that can be caused, I can also readily understand the frustration of the Police Service in circumstances where a police source is quoted but it then transpires that the information came from an outside individual. There is a balance here and, although I recognise the critical importance of protecting sources, I would certainly encourage the press to be as transparent as possible when using the term source, so that, where possible, the general provenance of the information is more easily understood: furthermore, to assert that there is a source when, in truth, there is not, both potentially damages the police and is, in any event, misleading on the part of the journalist. I turn to address the related issue of misuse of the Police National Computer (PNC). This was of particular concern to the Core Participant Victims and I am grateful for their written submissions on this topic. Overall, notwithstanding the problems that there have been, I am satisfied that the MPS and the wider Police Service now treat this issue with sufficient seriousness. However, it is equally clear that there can be no room for complacency in this area given that misuse of the PNC continues to be a problem for the service as a whole. With this in mind, I recommend that the Police Service should re-examine the rigour of the auditing process and the frequency of the conduct of audits in relation to access to the Police National Computer (PNC). Additional consideration should also be given to the number of people given access to the PNC and the associated rules which govern its usage.
5.5
5.6
6. Gifts, hospitality and entertainment

6.1 These topics can be addressed under the same heading, although the issue of entertainment in particular has attracted significant public interest and concern. In many ways it is emblematic of the issues of perception which surround, if not encase, the relationship between the MPS and News International (NI) and the history of the investigation of phone hacking between
19
p49, lines 22-25, Roger Baker, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-ofAfternoon-Hearing-5-March-2012.pdf 20 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-without-fear-or-favour.pdf, p5 21 Part G Chapter 3 22 pp64-65, line 6-1, Bernard Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-20-March-2012.pdf
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2006 and January 2011. The mention of expensive restaurants and bottles of champagne has done nothing to enhance the reputation of the MPS in the public mind. 6.2 Apart from the evidence bearing directly on the relationship between the MPS and NI, which it is not necessary to recapitulate at this stage, the Inquiry heard of a wide range of approaches and house styles. Much of the variability is no doubt attributable to differing personalities and temperaments, but as Mrs Filkin has concluded more generally, [t]here has been wide variation in how the senior team interpreted policy on dealing with the media and receiving gifts and hospitality. In some instances this interpretation is seen as inappropriate. There has been no clear standard set by the senior team for police officers and staff to use as a guide for their own behaviour and in some instances the standards set have been poor and have led to consequent damage.23 Mrs Filkin recommended that the MPS senior team must signal a change in culture and set a consistent example for all staff on the ethical standards they expect, including how they relate to the media and the interpretation of the gifts and hospitality register.24 I would certainly endorse this finding. The recent ACPO Guidance25 sets out the circumstances in which hospitality may, or may not, be accepted. I have set this out in full elsewhere.26 I have made it clear that I would certainly endorse the key principles contained within this guidance. Without wanting to be overly prescriptive or puritanical on this issue, in the circumstances I recommend that the recent ACPO Guidance should more specifically spell out the dangers of consuming alcohol in a setting of casual hospitality (without necessarily specifying a blanket ban). It also strikes me that the concept of an industry norm in this context may still allow for a variance in practice from force to force, and may tend to assume what needs to be established. However, I would certainly adopt in full the guidance provided to police officers (at all levels) and police staff in helping them to determine the boundaries of what is acceptable: Is it genuine? Is the offer made for reasons of genuine appreciation for something I have done? Why is the offer being made? What are the circumstances? Have I solicited this offer in any way or does the donor feel obliged to make this offer? Is it independent? Would the offer or acceptance be seen as reasonable in the eyes of the public? Would a reasonable bystander be confident I could remain impartial and independent in all of the circumstances? Is it free? Will I feel obliged to do something in return? How do I feel about the propriety of the offer? What are the donors expectations of me should I accept? Is it transparent? Would I be comfortable if my acceptance of this offer was transparent to colleagues, the force, and the public or if it was reported publicly? What could be the outcome for the force if this offer was accepted or declined.27 6.5 It is also vital that transactional change in the form of new policies and guidance is aligned with real cultural change. As the evidence has made clear, leadership can be the key determining factor in this regard. Given this, it is important that a challenging and transparent
6.3 6.4
23 24
para 4.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf p41, ibid 25 ACPO guidance on gifts, gratuities and hospitality, paras 2.21-2.26 26 Part G Chapter 3 Section 11 27 ACPO guidance on gifts, gratuities and hospitality, para 2.12
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environment exists within each force area so that staff at all levels, including those at ACPO rank, understand what is expected of them in terms of issues of integrity.
7. Media employment
7.1 I have examined this topic from two opposing perspectives: first, from the viewpoint of journalists being recruited to work for the police service; and second, the other way round. Unsurprisingly, the second issue is far more sensitive and problematic than the first. In brief, I do not believe that there should be any restriction on journalists being recruited to work for the Police Service, save that the process should be conducted in line with the procedures of the Government Communication Network (GCN) in an open and transparent manner. It may in fact be good practice, for the purposes of transparency, for individual forces to publish details of the make-up of their PR or communications departments in generic terms, but I consider that to be a matter for them. There is clearly a need for media expertise and the Police Service should be free to choose the best person for the job in a competitive free market. That is not to say as a freestanding observation - that forces should not examine their existing media relations training and awareness with a view to increasing skill levels, in relation to which Surrey Police have derived much benefit.28 The issue of police officers leaving to work for the media is, I have already said, more difficult. That issue may be sub-divided into two segments. Taking first the position of junior officers, I have concluded that it would be wrong to place restrictions, for example in the form of a cooling off period, on police officers and staff below ACPO rank leaving the Police Service, perhaps to return to a career in the media. In practice, the evidence suggests that journalists leaving the police service for an employed job rarely return to journalism. In addition, any restrictions would clearly have to be balanced against the right of any individual to seek employment as and where he or she wishes. In these circumstances, I believe that it would be contrary to the public interest to impose any restrictions of the type described. The position is different as regards senior officers of ACPO rank. The Inquiry received a considerable body of evidence which reflected public concern of very senior officers taking media jobs (usually on retirement), or writing articles for the press; I do not touch the question of books or memoires. This issue is intertwined in the public mind with the broader perceptual questions surrounding the relationship between senior officers of the MPS and NI, a topic which I have covered fully elsewhere.29 Whilst mindful of the concerns expressed by a number of witnesses, including Sir Paul Stephenson, the former Commissioner of the MPS, and Chief Constable Stephen House, of Strathclyde Police, in particular, on balance I have come to the conclusion that consideration should be given to the terms on which ACPO rank officers are engaged and, in particular to whether these terms should be amended to prevent employment by media organisations in much the same way as the previous Metropolitan Police Authority (MPA) contracts prevented employment by those with a contractual relationship with the MPS. I appreciate that regard must be had to issues of restraint of trade, to the right to seek employment, to freedom of expression, and, additionally, to the public interest in receiving information. But there are counterbalancing public interests that are also important. With this in mind, it seems to me that a time bar of twelve months would be sufficient to provide an appropriate
7.2
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p20, lines 12-24, Assistant Chief Constable Jeremy Kirkby, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-27-March-2012.pdf 29 Part G Chapter 3
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balance between the rights of the individual and public interest concerns relating to future employment by the media. 7.6 I am not in a position to consider all the ramifications of such a proposal; my recommendation is, therefore, limited. In the circumstances, I recommend that consideration should be given to the terms upon which ACPO rank officers are appointed and, in particular, whether these terms should include some limitation upon the nature of any employment within or by the media that can be undertaken without the approval of the relevant authority for a period of 12 months following the cessation of the appointment. I understand that should this recommendation be accepted then it may also require a change in the regulations governing the Police Service.
8. Corruption, whistleblowing and related matters

8.1 I appreciate that the topics of whistleblowing and corruption raise issues which are common to neither, but for the purposes of this Inquiry there is much common ground. It is for that reason that I take them together. Doing so also makes it easier to follow the series of recommendations which I set out below. I take corruption first. The Inquiry has not been the place to examine the broader issue of corruption within the Police Service; the focus has rightly been on corruption in the specific context of media relations. Additionally, the current position in relation to Operation Elveden has inevitably hampered the ability of the Inquiry to delve into the issue in any depth. Nonetheless, I bear in mind the frank evidence I have heard from senior police officers which has given me a clear sense of the seriousness and scale of the problem. No one underestimates the gravity of the issue as a matter of generality, but it would be wrong for anyone to believe that corruption is endemic in the Police Service. As I have already pointed out, training and guidance are obviously important preventive tools in seeking to address this issue. The relevant overarching guidance in this area is provided, first, through the ACPO Counter Corruption Advisory Group (ACCAG), whose Guidance for the Investigation of Corruption was first published in 2003 and last formally revised in 2006; this guidance has been adopted by all chief officers.30 Second, the recognised Standards of Professional Behaviour are set out in the Schedule to the Police (Conduct) Regulations 2008 and the related Home Office guidance (026/2008) on police unsatisfactory performance and misconduct procedures, and Standards of Professional Behaviour for Police staff, as agreed by the Police Staff Council. This guidance has also been adopted by all police forces, including the MPS.31 Both sets of guidance are currently under review and are dealt with in more detail elsewhere.32 Evidenced by the guidance and training currently in place, and the vigour with which individual police officers and police staff are pursued where criminality is identified, it is clear that the
8.2
8.3
8.4
30
pp4-6, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-ChiefConstable-Mike-Cunningham.pdf 31 ibid; MPS 36 The Police (Conduct) Regulations 2008, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/MPS-36-The-Police-Conduct-Regulations-2008.pdf; and CCMC 11: Home Office Guidance Police Officer Misconduct, Unsatisfactory Performance and Attendance Management Procedures (not available on the Inquiry website) 32 Part G Chapter 3
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Police Service takes this issue seriously. There are, however, gaps and weaknesses in the collective approach to the issue a number of which have been identified by HMIC. Having said that, I am in no doubt that the Police Service is genuine in its desire to tackle corruption head on, with the ACPO led response to the HMIC report being particularly important in this regard. For my part, I would whole heartedly adopt the HMIC recommendations relating to the need for consistent national standards and guidance, enhanced training and awareness, and more robust corporate governance arrangements. From the stand-point of sanctions, corruption is a criminal offence with serious penalties, I do not feel it necessary therefore, to recommend any additional statutory or regulatory tools to assist in dealing with this important issue. 8.5 The Home Secretary, the Rt Hon Theresa May, confirmed this last point and provided the Inquiry with her summary of the key findings. She said:33 I think the key findings that come out of this in many ways chime in with those previous work thats been done, particularly by the HMIC, about the need for greater clarity both for the public in terms of whats police corruption and therefore what is appropriate to bring to the IPCC, but also greater clarity in terms of perhaps greater consistency in recording incidents that have taken place from force to force. They identify that different forces appear to havedifferent levels of reporting of complaints about corruption and the question is raised as to whether thats because of a different definition being used rather than the behaviour in relation to the forces. Crucially, it refers again to the issue of additional powers and also about resources, and these are issues that we intend, when legislative time allows, to be able to make changes to the powers to the IPCC and we are looking at the case that theyve put forward in relation to additional resources. 8.6 I certainly support these proposed changes and share the view of the IPCC that, in order for the system to work as it should, it is vital that all police forces are both alert to allegations of corruption and are capable of dealing with them effectively and appropriately.34 I also agree that this is an area where independent oversight is essential, particularly from the standpoint of public perception, not least because the confidence of the public in the police is fundamental to its legitimacy and to the absolutely critical cooperation and compliance that, as an organisation, it needs both to expect and also to achieve. The issue of corruption overlaps with that of whistleblowing for the obvious reason that the latter is often the route to the former being exposed. I recognise that there are other routes, including of course robust investigative journalism (undeniably in the public interest) as well as the persistent endeavours of leaders within the Police Service, but for present purposes I am focusing on disclosures from within the organisation. I recognise and understand the sensitivity of this issue, and the sentiment expressed by many that the press is a safety valve for genuine grievances and concerns within the Police Service as a whole. However, there remains an important point of principle which I need to come back to: that information which is confidential should remain so, unless there really are exceptional circumstances justifying the placing of that information into the public domain. Additionally, and looking at this more widely, the ends do not usually or, at least necessarily, justify the means.
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33
pp63-64, lines 25-19, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-29-May-2012.pdf 34 IPCC Report Corruption in the police service in England and Wales: Second report a report based on the IPCCs experience from 2008 to 2011, May 2012, p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/IPCCCorruption-in-the-Police-2nd-Report.pdf
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8.9
My overall assessment is that a series of pragmatic solutions need to be devised to maximise the chance that genuine whistle-blowers will use confidential avenues in which they may have faith, rather than feel it necessary to break confidences by bringing about much wider public dissemination through disclosures to the media. In my view, this strikes the right balance between the competing interests at stake. As I have already said, the starting point for any police officer or member of police staff wishing to report an issue of concern should be that they first look to their internal procedures, which are buttressed by the law governing protected disclosures. I appreciate that all police forces already have a whistleblowing line of reporting direct to the PSD of that force: typically, this will be headed by a detective chief superintendent in other words, a senior officer capable of holding the respect of the majority of police ranks. Nonetheless, I also recognise that Mrs Filkin identified a general lack of confidence in the ability of these departments to address their concerns across the board. There may also be some legitimate concern as to the ability (if not the overall willingness) of PSDs challenging the most senior on issues concerning integrity Apart from the PSDs, the present position is that the Independent Police Complaints Commission (IPCC) already has a Public Interest Disclosure Act telephone line which is available for use in these circumstances, but it does not enjoy a sufficiently high profile. As and when whistle blowers use it, I understand that the IPCCs practice, if at all possible, is to conduct an interview, in order better to inform its assessment of the merits of the concern being expressed. Given the apparent lack of trust in the current process, a more independently operated system should be considered. I strongly believe that a more developed structure is required to ensure that the public have absolute confidence that issues of integrity will be appropriately addressed at all levels within the Police Service, and that whistle blowers also have the confidence that their grievances will be addressed. As I explain below, I have in mind an enhanced role for both the IPCC and HMIC. For a number of reasons I am not in a position to descend into the detail of the structure I have in mind not least because of the changing landscape surrounding police policy and its implementation. I am simply not in a position to forecast precisely how the responsibilities of the newly elected Police and Crime Commissioners (PCCs) will fit into the overall picture alongside the work of the newly created National Crime Agency, ACPO (howsoever designated) or the National Police Improvement Agency (to be superseded by the College of Policing). Neither is it clear to me how the work of the HMIC will be affected, or what (if any) impact there will be on the IPCC. All that I can do is to describe the architecture, and others will need to take it forward by inserting the building-blocks as relationships and responsibilities are established. I recognise that each of the bodies I have mentioned will wish to contribute to that debate and a number have not given evidence to the Inquiry.
8.10
8.11
8.12
8.13
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8.14
In the circumstances, I recommend that an enhanced system for protection of whistle blowers and for providing assistance for the Police Service on general ethical issues should at least comprise the following: (a) greater prominence should be given to the IPCCs PIDA telephone line;
(b) there should be an ethics line to the IPCC, available for all serving Police Officers, providing general ethical guidance; (c) to avail those at Chief Officer level (Assistant Commissioner level within the MPS), HMIC should identify one of its members, a former Chief Constable, as the designated point of contact for confidential ethics guidance. The Chief Officer seeking and obtaining that advice would be able to refer to it should any issue subsequently arise on a complaint to a PSD, a PCC, or indeed the IPCC itself. The advice would not be determinative of the complaint, but the fact that it was sought and received, as well as its content, would be a matter to be taken into account;
(d) within the IPCC itself, there is a need for an enhanced filter system whereby the nature of complaints are appropriately addressed at an early stage so that (a) they can be investigated at the right level, and (b) sufficient structures are put in place to maintain confidentiality of the complaint, and differentiate as soon as is appropriate between genuine whistle blowers and those who are merely ventilating a personal grievance; (e) the former Chief Constable referred to under sub-paragraph (c) above should also be the recipient of complaints about Chief Constables made to the IPCC. In the event that he or she may already have given informal advice in relation to the subject-matter of the complaint, as per sub-paragraph (c) above, a substitute HMI would be deputed to act; and Chief Officers should also be the subject of regular independent scrutiny by HMIC, including through unannounced inspections.
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8.15
(f)
As I have said, and for the reasons I have given, I am not addressing the actual mechanics of such a system in this Report. But allied to this, I would also consider it prudent for PCCs and Chief Officers quickly to reassess the corporate governance arrangements in place within each force area to ensure that they are fit for purpose. This would obviously be an important part of ensuring that each of their specific roles and responsibilities in this area are clearly delineated.
9. Conclusion
9.1 It is clear that the Police Service as a whole has responded positively and proactively in the wake of the public concerns which led to the setting up of this Inquiry in July 2011. I welcome the thoroughness and good sense of the changes which have been recommended to date, and the spirit in which the Police Service has demonstrated willingness for implementing appropriate and judicious enhancements of the existing regimes. Ultimately, the Police Service in general and the MPS in particular has understood the importance of such a positive response in terms of allaying public concerns and correction legitimate perceptions. In taking its existing work forward, as supplemented by the recommendations I have made in this Chapter, I fully endorse the judicious contribution made by the Home Secretary to the Inquiry and, in particular, her emphasis on the need for a country-wide series of policies
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9.2
coordinated through or by ACPO. The majority of the issues at stake here are of universal application. The blush test will continue to work as a sound guide for the vast majority but clear leadership and the setting of the tone from the top is vital. Finally, clear and direct policy guidance is necessary to reinforce these common sense messages.
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The Leveson Inquiry


4 volumes not to be sold separately Volume III

The Right Honourable Lord Justice Leveson November 2012 Volume III
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J une 2010 December 2010: The Rt Hon Dr Vince Cable MP and the Department for Business, Innovation and Skills 21 December 2010: Dr Cables comments and the transfer of function D ecember 2010 July 2011: The Rt Hon Jeremy Hunt and the Department for Culture, Media and Sport News Corp and the Rt Hon Alex Salmond MSP Introduction The Deputy Prime Minister, the Rt Hon Nick Clegg MP The Leader of the Opposition, the Rt Hon Ed Miliband MP The First Minister of Scotland, the Rt Hon Alex Salmond MSP The Rt Hon Kenneth Clarke QC MP The Rt Hon Michael Gove MP The Rt Hon George Osborne MP Introduction The proprietors Too close a relationship Existing regulatory framework Recommendations for future relations between politicians and the press
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cHAPTeR 1 inTRoducTion
1. Background
1.1 As part of an inquiry into the culture, practices and ethics of the press, the Terms of Reference extend to a consideration of the extent to which the current policy and regulatory framework has failed, including in relation to data protection. It also requires a review of the extent to which there was a failure to act on previous warnings of media misconduct which undeniably includes the performance of the data protection regime. Data protection, with its origins in European and international law, is currently contained in the Data Protection Act 1998 (DPA) and is summarised elsewhere in the Report.1 The UK data protection regime suffers from an unenviable reputation, perhaps not wholly merited, but nevertheless important to understand at the outset. To say that it is little known or understood by the public, regarded as a regulatory inconvenience in the business world, and viewed as marginal and technical among legal practitioners (including by our higher courts), might be regarded as a little unfair by the more well-informed, but is perhaps not so far from the truth. And yet the subject-matter of the data protection regime, how personal information about individuals is acquired, used and traded for business purposes, could hardly be more fundamental to issues of personal integrity, particularly in a world of everaccelerating information technology capability, nor, on the face of it, more central to the concerns of this Inquiry. It has the following features: (a) The law identifies broad principles requiring businesses acquiring and using personal information to do so lawfully, fairly, accurately, for specific purposes and to the limited extent necessary for those purposes; the information must be kept safely and individuals have legally enforceable rights to know what information is held about them, to see it, and to ensure that it is accurate. There are a number of specific exceptions to those rights and principles, including exemptions designed to balance those rights with other individual rights, such as freedom of expression, and other public interests such as crime prevention. The regime (along with the regime for freedom of information) is the responsibility of the Information Commissioner who has statutory power to investigate and rule on breaches, and enforce compliance (including by court action and prosecution). The Commissioner also has a wide-ranging function to promote awareness, compliance, and good practice over and above the basic legal requirements, including by education, guidance, publications and reporting to Parliament.
1.2
1.3
(b)
(c)
1.4
Successive Information Commissioners have worked hard and tirelessly to raise the profile of data protection within businesses, and to support public awareness, including by tackling myths and unnecessarily risk-averse behaviour, and promoting straightforward and commonsense business practices. The Information Commissioner operates through an office (the ICO) and it was in the execution of these responsibilities that the ICO became involved in Operation Motorman. The public
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1
Appendix 4
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PART H | The Press and Data Protection
facing narrative is described as part of the history2 in this Report but the way in which the ICO considered it appropriate to discharge its functions is far more complex than that narrative reveals. Having uncovered what appeared to be extensive unlawful or unethical practices of the press in the acquisition and subsequent use of private personal information from corrupt officials and private sector employees and through the medium of unscrupulous third-party blaggers, a regulatory response was essential. How these challenges were approached, the political campaign that has followed and the extent to which insights can be learnt for the future is at the heart of this Chapter. 1.6 Also looking to the future, it is appropriate to move from a consideration of the specific to consider the way in which the ICO operates in relation to the press and, in particular, to review the relevant parts of the legal framework along with its powers and governance. Different parts of this Report have dealt with single systems. In relation to the activities of the press, the focus has been on the operation of the criminal law and the approach of the Press Complaints Commission (PCC) to press conduct. The relationship between the press and the police has been examined through the operational decisions of the police and their interaction with the press. For politicians, the issue has been the different dynamics of the way in which they react with the press and the extent of any impact on public life. For the ICO, all these different elements are engaged. This part of the Report deals with the criminal law, the regulatory regime of the ICO and the way in which it sought to engage the PCC, other regulatory options open to the ICO, and the political sphere (in relation to the amendment to the DPA). It is thus somewhat more complex and, given the wide ranging recommendations about the operation of this statutory regulator with an extensive remit, has required a greater degree of analysis than other aspects of the Report: to that extent it is also different in approach. Having been directed by the Terms of Reference to consider the press and the data protection regime together, I have been conscious that the Report would be addressing matters relatively little noticed or debated in the public discussion of the Inquiry.3 I am also conscious that this subject matter has had relatively little scrutiny more generally. In this respect, as with many independent public inquiries, the task is to shine a light on an unfamiliar landscape. It is worth emphasising because so much of the rest of the material considered in this Report has been extremely fully ventilated, including editorially, as the Inquiry has gone along. The extent to which the relevance of data protection is and has been minimised is part of the background to this Part of the Report, as is the question of some of the reasons and motivations for it. I am also conscious that the discussion of this relatively unfamiliar territory throws aspects of it into relief in a way which may be a matter of surprise even to those more familiar with it. A fresh and independent perspective, by definition, is an opportunity for a different way of looking at things and perhaps of questioning some assumptions.
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2. The ico: structure, governance and approach

2.1 The Information Commissioner is a corporation sole appointed by Her Majesty The Queen and independent of Government who (like the senior judiciary) can only be dismissed pursuant to an Address from both Houses of Parliament. He is funded by fees and grant-in-
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Part E, Chapter 3 Although the evidence from the two Information Commissioners and two members of staff was heard over a comparatively short time (occupying one full day and less than three half days) the ripples flowing from Operation Motorman were felt throughout the Inquiry and were the subject both of evidence and legal argument. Detailed and comprehensive expert evidence was also called. The extent of this analysis has meant that particular care has been taken to address subsequent submissions by the two Commissioners which dealt with more wide ranging considerations
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aid voted by Parliament and supported through the Lord Chancellor and Ministry of Justice. Operationally independent, the full functions of the Office are exercised personally though the office holder who appoints staff who work by direct delegation from him. Between 2002 and 2009, the Commissioner was Richard Thomas, a solicitor by training. He was based in offices in Wilmslow and had two deputies and the office now has over 300 staff (including lawyers and investigators). The operational investigations department reported to him via one of the Deputies. Francis Aldhouse, also a solicitor, fulfilled this Deputy role from 1984 (in the precursor organisations) until his retirement in 2006. 2.2 Mr Thomas described his approach in this way:4 (a) As an overview, his role was partly a regulator, partly an ombudsman, partly an educator and partly a policy adviser the cornerstone being the duty to promote good practice including, but not limited to, compliance with the minimum legal obligations under the regime.5 The ICO was primarily not a prosecuting authority. That was almost on the side.6 The main formal power in the event of non-compliance was the enforcement notice, which could specify and require compliance action subject to the back-up sanctions of court enforcement, although this was not frequently used. The principal power of investigation was the ability to serve an information notice on an organisation to ascertain whether it was complying with the regime. This also was very, very rarely used because, in most cases, asking a business to co-operate and supply information usually sufficed. Prosecution powers were limited to s55 of the DPA and did not extend, for example, to other offences such as phone hacking (although this might also technically involve a s55 DPA breach). Mr Thomas linked the application of the statutory public interest defence provided by s55 to the core function of the ICO in freedom of information, in virtually every difficult case, in balancing public interest considerations for and against disclosure (on which it had published a great deal of guidance).7
(b)
(c)
(d)
(e)
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Mr Thomas did not regard the ICO as a regulator of the press as such although the data protection regime applied to each media organisation which, therefore, was regulated and fee paying. He considered the exemption contained in s32 DPA (covering personal information being used for the special purposes of journalism, literature or art) as severely circumscribing and limiting the powers of the ICO in relation to the press, disapplying most of its enforcement powers where data is used for journalistic purposes while at the same time being incredibly complicated. He had rarely had to engage with the issue (because it didnt arise) and did not consider it particularly relevant to the Inquiry.8 He considered that any journalist seeking to rely on the public interest provision to disapply s55 would be expected
p5 onwards, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-9-December-2011.pdf 5 p75, Richard Thomas, ibid 6 p75, line 13, Richard Thomas, ibid, emphasis added. Mr Thomas suggested, however, that s55 of the DPA which founded the prosecution powers was most likely to be the most relevant provision of the regime to the terms of reference: p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/First-Witness-Statement-of-RichardThomas-CBE.pdf 7 p53, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-AfternoonHearing-9-December-2011.pdf 8 When questioned by Mr Rhodri Davies QC for NI, Mr Thomas was reluctant to attempt a definitive explanation of s32: p75, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-AfternoonHearing-9-December-2011.pdf
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to be very scrupulous about checking and recording the aspects of the public interest on which he or she was proposing to rely, in order to be able to take any available advantage of that provision. 2.4 From this short summary, it appeared that the ICO relied, in the main, on an informal means of doing business. That is usual regulatory practice. The cornerstone function of promoting good practice was largely discharged through co-operation with and encouragement of businesses; although little touched on in evidence, it appears that this was also the case with the ICOs complaint resolution or ombudsman function. It was not an organisation by its own account which regularly used its principal legal powers; prosecutions, in particular, were not its main business, but neither, it would appear, was direct regulatory enforcement. The main concern was prevention of poor practice and promotion of good practice. The Inquiry explored the extent to which the ICO was familiar with the press as an industry dealing in personal information, and with the specific aspects of the data protection regime applying to the press, and how it saw its role in relation to commercial journalism.
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Chapter 2 OperatiOn MOtOrMan

1. The investigation
1.1 The background and history of Operation Motorman is fully described above1 and does not need repetition. When Alex Owens2 attended the search in Operation Reproof, he was well aware that the data protection regime fastens on the acquisition, use and disclosure of personal data by public authorities under compulsive powers. As well as the application of the criminal law, the principles and rights of the regime are designed to ensure that individual civil liberties are respected and safeguarded when individuals personal information is taken into the hands of public bodies, and that public bodies are strictly limited in terms of what can be done with that information and who can see it. Thus, although the focus of the police was the question of the corruption of public officials entrusted with peoples confidential information, the primary interest of the Information Commissioners Office (ICO) was the information itself, and the consequences of the unlawful access and disclosure for the people whose information it was and for the organisation whose responsibility it was to take care of it. Having identified Steve Whittamore as a self-employed private detective who had been requesting details from the DVLA in relation to a protected vehicle registration number, the ICO undertook the initiative to obtain a search warrant under its own powers. When it was executed, what was seized (over five-six hours) came to be referred to within the office as a treasure trove or Aladdins cave in the form of a substantial quantity of documentation together with four colour-coded notebooks (the Motorman material). These contained a very large amount of personal information, evidently acquired without the knowledge or consent of the people in question. Mr Owens was concerned about a number of features. First was the sheer quantity of the information and how extensive and specific it was. Second, there was the fact that it appeared to have been obtained in the course of an investigative business spanning a period of years and earning considerable sums. Third, the evidence suggested that the material had been specifically requested and paid for by journalists writing for a significant range of newspapers and periodicals and related to a large number of well-known people (or those close to them), including household names from the world of entertainment, sport, politics and other arenas of public life. Finally, Mr Owens was struck by the nature of the information, including personal details from restricted databases, clearly obtained in ways which were inconsistent with good data protection practice, with the legal rights and principles set down in the data protection regime, and even in some cases with the criminal law. During the course of the search Mr Whittamore was present and although not formally interviewed, Mr Owens reported (albeit speculatively) that:3 Whittamore made it very [clear] to me that whilst he would admit to his own wrong doing, under no circumstances would he say anything which would incriminate any
1 2
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1.3
Part E, Chapter 3 Mr Owens was the senior investigating officer in the ICO having previously spent 30 years as a police officer reaching the rank of Detective Inspector. He described having special responsibility for the investigation of high profile or complicated investigations relating to breaches of the [then] new [Data Protection] Act.: p1, http://www. levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Alexander-Owens1.pdf 3 pp4-5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Alexander-Owens1. pdf
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member of the press. I was undecided as to whether this was because he feared the press or whether he anticipated some financial recompense in return for his silence. 1.4 Mr Owens reported back to the senior management, briefing both Mr Thomas and Mr Aldhouse. There are different recollections of discussions about the future handling of the material (which are discussed below). In the meantime, he began the laborious task of sifting the material and arranging for it to be placed on an electronic database. Although the lead came from a criminal investigation, the data protection aspects were apparent to the ICO with the treasure trove they came upon taking them into a dimension of data misuse going far wider than specific issues of corruption which concerned the police. In fact, it appeared that the ICO had come upon an organised and systemic disregard for the data protection regime of a scale, duration and seriousness going beyond poor practice, beyond breach of the principles and rights of the regime, and into the realms of criminality in its own right. There was thus no doubt that the ICO, through Mr Owens, was preparing the Motorman material to form the basis of a prosecution under s55 DPA: they planned to prepare some 2530 of the more egregious cases for detailed investigation and selective interviews in order to found specimen charges against a number of persons who could include (a) corrupt officials and employees who were providing the information to Mr Whittamore directly for money; (b) blaggers, who were obtaining the information for him by deceit; and (c) the press, who were commissioning (or procuring in the language of s55) the information in the first place. In that regard, counsel subsequently advised:4 Having regard to the sustained and serious nature of the journalistic involvement in the overall picture, there can be little doubt that many, perhaps all, of the journalists have committed offences. The inference, overwhelming it seems to me, is that several editors must have been well aware of what their staff were up to and therefore party to it. 1.6 When it came to Operation Motorman, Mr Aldhouse had responsibilities which included providing direction to the head of investigations at the time (and so was formally answerable to Mr Thomas for the conduct of Operation Motorman). He said that it was not his role to direct investigations himself; rather, he had to supervise the person running the investigations department.5 His own focus was on policy work, not least on the significant European dimension to data protection, which often took him to Brussels. Asked specifically about the operational issues which the discovery of the Motorman material raised for the ICO, Mr Aldhouse had no recollection of when he first heard about the case, nor of any internal meetings to discuss it (including those meetings at which the investigator Alex Owens alleged that decisive policy positions on the operational conduct of Motorman were taken by senior management). Mr Aldhouse himself said he never looked at the original Motorman material, nor the legal advice obtained by the office about it. When asked by Counsel to the Inquiry whether there was anything in the office at the time which was as big or as important as Operation Motorman, Mr Aldhouse accepted that, from an operational investigations point of view, it probably was the largest investigation.6 However, he firmly
1.5
H
1.7
p32, lines 1-25, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-5-December-2011.pdf 5 p39, lines 20-23, Francis Aldhouse, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-5-December-2011.pdf 6 pp41-42, lines 25-3, Francis Aldhouse, ibid
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maintained a position of non-involvement and, hence, non-accountability. That exchange included this:7 Q: I think all Im gently suggesting, Mr Aldhouse, is this - and its probably fairly obvious now: we have possibly the most important investigation involving your office, Operation Motorman. It has very serious ramifications. It was clearly being ramped up at this stage. Mr Thomas had it in mind to make a report to Parliament shortly afterwards and he did. Surely you were involved, even in informal discussions with Mr Thomas, as to the direction your office was taking, werent you? A: Well, I think they would only have been casual ones... 1.8 These answers were consistent with his brief witness statement which suggested little in the way of senior oversight of operational matters at all. He said:8 I am unable to comment on the detailed history of the Operation Motorman inquiry in the direction of which I was not involved. I believe that the investigators conducted the matter together with the Commissioners lawyers....I regret that because of my limited role in the Operation I am unable to help the Inquiry further. 1.9 Mr Aldhouse was also asked about the senior structure in the ICO. He described a management team comprising the Commissioner, two Deputies, a handful of Assistant Commissioners: perhaps ten or a dozen very senior people9. But this team does not seem to have been engaged in any decision-making about the Motorman case, either operationally or strategically. Was it not surprising that neither the responsible Deputy personally, nor the organisations senior management team, was consulted or engaged? Mr Aldhouses response was:10 Am I surprised? Im disappointed. Not necessarily surprised. ... well, yes, Im sure in retrospect it would have been - one could well say: wasnt this big enough for the whole of the management team to be involved? ... I certainly had views, anyway, yes. 1.10 As will be clear, despite being organisationally and functionally responsible for the investigations team, Mr Aldhouse placed himself at a considerable distance even from personal knowledge of the Motorman material. As Mr Thomas put it, with what appears to be a degree of understatement, Francis was somewhat disengaged on these matters.11 Mr Thomas himself, however, appeared to have grasped the implications, appreciated that it was very serious and congratulated Mr Owens and the team.12 He explained that, in what was the first year of his appointment:13
p49, lines 11-21, Francis Aldhouse, ibid p2, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-FrancisAldhouse.pdf 9 p33, line 13, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-5-December-2011.pdf 10 pp55-56, Francis Aldhouse, www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-MorningHearing-5-December-2011.pdf 11 p30, lines 5-6, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-9-December-2011.pdf 12 pp30-32, ibid; p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fourth-Witness-Statement-ofRichard-Thomas-CBE.pdf 13 pp4-5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/First-Witness-Statement-of-RichardThomas-CBE.pdf It is, perhaps, worthy of note that Mr Thomas appears to focus on the profile of s55 DPA rather than the underlying issue of the practices of the press
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I was told about a treasure trove of evidence which the team had obtained under a search warrant as part of Operation Motorman There was a feeling that the material was of sufficient quality and quantity to make this a major case which would bring home the seriousness of the [s55] offence. 1.11 The assessment made by Mr Thomas of the Motorman material was that he saw it as hard prima facie evidence ... of offences,14 on a scale that could hardly have been greater for the data protection regime. He said:15 So my understanding, I think, remains the case that this was a far more serious matter than a breach of section 55. 1.12 Specifically, Mr Thomas apprehended that it was likely that that the journalists involvement in the acquisition and use of this information took them within the sphere of conduct so seriously at fault as to be prima facie criminal. Criminal conduct by journalists was the ICOs very, very strong hypothesis. This understanding was tested during his evidence,16 from which it appears that the following aspects of the Motorman material were particularly striking: (a) Some of the material from the protected public databases could not have been obtained by lawful means at all, and appeared very likely to have breached specific statutory bars on disclosure. It was known that Mr Whittamore did have corrupt sources in both the public and private sectors: these had been identified. The pricing structure for the commissions was indicative of criminality because they were either too low to suggest that it had been obtained lawfully (because of the effort and time which would have been involved) or high enough positively to suggest a premium relating either to incentivising legal risk or corruption (with some cases, concerning very well known individuals) involving very large sums. The circumstances suggested that it was highly likely that the journalists were knowing or reckless as to the unlawfulness of the means by which the commissioned material was acquired and that, on the face of it, it was unlikely that the s55 defence relating to the public interest would be available in the generality of cases.
(b) (c)
(d)
1.13
It must, of course, be appreciated that criminal proceedings are complex to mount and involve a high standard of proof but, quite apart from criminality, Mr Thomas understood that serious questions were raised by the Motorman material and there were causes for real concern. In his fifth witness statement, he outlined the way in which the ICO had classified the 13,343 transactions recorded as follows:17 (a) 5,025 identified as transactions that were (of a type) actively investigated in the Motorman enquiry and ....positively known to constitute a breach of the DPA 1998. (b) A further 6,330 representing transactions that are thought to have been information obtained from telephone service providers and are likely breaches of the DPA. However, the nature of these is not fully understood and it is for this reason that they are considered to be probable illicit transactions.
pp79-80, lines 25-3, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Morning-Hearing-9-December-2011.pdf 15 p84, lines 23-25, Richard Thomas, ibid 16 pp93-109, Richard Thomas, ibid 17 pp1-2, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fifth-Witness-Statement-of-RichardThomas-CBE.pdf
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(c) The balance of 1988 lacking sufficient identification and/or understanding of their nature to determine whether they represent illicit transactions or otherwise. 1.14 Mr Thomas then put the matter in this way:18 The classification of the transactions related to the apparent commission of offences But I suggest that there must be at the very least ethical questions where a journalist is the regular customer of an investigator who commits an offence to obtain the information, whether or not the journalist has also committed a procuring offence in relation to that transaction. Such ethical questions are even more pertinent where the investigator could obtain the information more quickly and reliably than they [the journalists] were able to, at least some of the information was of a confidential nature and Mr Whittamore was pressing to sell other pieces of information obtained for other clients. 1.15 Mr Thomas was in no doubt that a significant proportion of the Motorman material did indeed constitute evidence of criminality, particularly in contravening specific bars on the disclosure of material from databases under the control of public authorities. As for the possibility of a defence under s55 DPA, he said, for example, that I havent seen a whiff of public interest. It was tittle-tattle. It was fishing. There may be one or two examples, but they would be exceptional.19 He also made two further points. First, the theoretical availability of material by lawful and fair means did not by itself render innocuous the acquisition of material by other means which did, in fact, constitute breaches of the data protection regime. Secondly, at the very least, most of the material in question was not reasonably to be regarded as in the public domain, and therefore had a quality of confidentiality. I have no doubt that this analysis is both important and valid. It was for that reason that I took the view that it was both appropriate and correct that Mr Owens should produce the Motorman material to the Inquiry but that (given the privacy of those whose records had been mined), it should be seen by the core participants under strict confidentiality and should remain in redacted form.20 Having said that, I summarised the effect of the evidence in this way:21 Its abundantly clear, looking at the electronic records, which youve checked against the actual documents, that Mr Whittamore had collected together a vast amount of personal data. The documents identify the names of titles and specific journalists at the titles apparently or inferentially making the request. It identifies the names of people from a wide range of public life and in the public eye, and provides addresses, telephone numbers, mobile telephone numbers and charging details for that information. Its not necessary to go into the identity of the individuals, its not necessary otherwise to identify titles or names and certainly not necessary to identify the persons who were the targets of enquiry. In relation to some of them, it is absolutely right that there may well be a public interest justification in the enquiry. In relation to others, however, it
p2, ibid p65, lines 8-10, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf 20 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Order-of-2-December-2011.pdf Following an application, I issued a further ruling: http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Ruling-InRelation-to-Operation-Motorman-Evidence-11-June-20123.pdf 21 pp25-26, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-5December-2011.pdf
19 18
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is difficult, if not impossible, to see what public interest justification there could be. 1.18 A further point that Mr Thomas made was to recognise the possibility that the Motorman material was representative in nature. He said:22 I have always recognised that the material seized in Operation Motorman came only from one group of investigators and may have been entirely isolated. Equally, many other private investigators were known to be active and it is difficult to believe the investigators raided by the ICO were the only ones with press clients. This view is strengthened by the quite separate Goodman / Mulcaire prosecutions which came to light after the first ICO report and which had parallels with the section 55 offences and reinforced the evidence gathered during Operation Motorman. 1.19 This identifies the general awareness of, and concern about, the security of confidential databases in both the public and private sectors, the sensitivity of the concentration in those databases of very large amounts of personal data, and the risks of that getting into the wrong hands.23 Albeit retrospectively, Mr Thomas also made the connection between the Motorman material and the subsequent evidence of phone hacking undertaken within the press24 as did Mr Owens.25 In any event, however, there was a clear apprehension of a general problem concerning unlawful and unethical trading in personal information, including, but not limited to, the press.26 In sum, therefore, Mr Thomas, and the ICO more generally, was aware that the Motorman evidence was an indication, in relation to the culture, practices and ethics of the press and beyond, of conduct that was likely to be criminal, probably constituted systematic breaches of confidentiality, privacy and the principles and rights of the data protection regime, was certainly unethical, and was quite outrageous in policy terms.27 As summarised in the ICOs report to Parliament, it amounted to evidence of a flourishing and unlawful trade in confidential personal information by unscrupulous tracing agents and corrupt employees with access to personal information.28 The Culture, Media and Sport Select Committee in 2003 described it as a depressing catalogue of deplorable practices.29 The modus operandi, and the harm done, was well understood.30 How it was addressed by the ICO now falls to be considered.
1.20
2. The ICO response: leadership

2.1 As the office holder, Mr Thomas was in a unique position to influence the culture and priorities of the office and to determine the nature and degree of his own personal priorities. In that
pp11-12, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/First-Witness-Statement-of-RichardThomas-CBE.pdf 23 pp23-24, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-MorningHearing-9-December-2011.pdf 24 See also the connection made in What Price Privacy Now?, pp7-8, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/12/Exhibit-2.pdf 25 pp40-41, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-30-November-2011.pdf this is discussed further below 26 p97, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-MorningHearing-9-December-2011.pdf; pp50-51, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/12/Transcript-of-Afternoon-Hearing-9-December-2011.pdf 27 p96, line 7, Richard Thomas, ibid 28 p29, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-1.pdf 29 pp14-15, Richard Thomas, ibid 30 pp23-26, Richard Thomas, ibid
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regard, it is noteworthy that he was at pains in his evidence to the Inquiry to distance himself from the operational decisions made about Motorman; effectively, he disclaimed significant contemporaneous knowledge of the operational management of the case. It is also striking that, as Mr Thomas was aware, his Deputy, Mr Aldhouse, also distanced himself from the operational management of the case. 2.2 Although aware that a wealth of material had been recovered, Mr Thomas had little recollection of the briefing or of discussing the detail. He emphasised that the question of investigating the role of journalists and newspapers in the events was not a matter with which in any way I was engaged;31 at the time I cant really say that I was giving very active consideration to these matters;32 and I personally did not give any serious consideration to that matter, and I cannot recall any conversation or discussion when that particular issue was being discussed.33 He said, for example, that it was only as a result of being asked to assist the Inquiry that he had latterly become aware that the MPS had investigated journalists as part of Operation Glade, of the note made by his office of their meeting with Counsel on 3 October 2003 advising that there were grounds in the Motorman evidence for proceeding against journalists,34 or that the judge hearing the Motorman prosecutions at Blackfriars had questioned the lack of proceedings against any journalist.35 I must admit to being surprised about the extent to which Mr Thomas distanced himself from the practical details of the operation that was later to take up so much of his attention politically. By his own account he did not direct the operational strategy, involve himself in key decisions or, it would seem, keep himself especially closely briefed. One of the earliest notes of his reaction was a handwritten entry in a personal notebook36 written between 3 and 10 March 200337 recording: Francis Newspapers/s55. Unable to recall any conversation with Mr Aldhouse, Mr Thomas was pressed as to whether this did not suggest a personal interest in the press dimension to Operation Motorman. But he remained firm: he personally did not give any serious consideration to the operational dimension. He assumed that an operational decision would be taken at the level of Mr Owens and the in-house legal team, about whether and to what extent to pursue action against the press. Put to him that he must at least have been aware that no journalist was being prosecuted, that he must at least have been alert to the criminal process, he replied that that was only in very general terms. There were, he pointed out, many, many other matters going on at that time.38 The Newspapers/s55 note might, at least, be thought to suggest that Mr Thomas was concerned with the criminal process. It is to that issue that most if not all references to his assumptions about the operational management of Motorman are made in his evidence.39 He stated, for example, that:40
2.3
2.4
p33, lines 15-16, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-9-December-2011.pdf 32 p40, lines 8-10, Richard Thomas, ibid 33 p45, lines 8-11, Richard Thomas, ibid 34 p52, lines 16-19, Richard Thomas, ibid 35 p82, lines 14-23, Richard Thomas, ibid 36 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJT-Exhibit-512.pdf 37 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Sixth-Witness-Statement-of-Richard-Thomas.pdf 38 pp44-46, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-MorningHearing-9-December-2011.pdf 39 More than once Mr Thomas explained that the reason for his operational distance was that he was not himself a criminal lawyer 40 p1, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fourth-Witness-Statement-of-RichardThomas-CBE.pdf
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It was my understanding that the case would be pursued in line with established Office practice prosecutions led by the in-house legal team, advising and acting upon the evidence obtained by the Investigations Unit. I was subsequently kept broadly abreast of developments, notably that the CPS were taking over the prosecutions [this is, of the private investigators] and then that trial had resulted in major disappointment. The ICO lawyer with lead responsibility was Phil Taylor. 2.5 The Motorman material had emerged in the course of a criminal investigation, but its implications for the data protection regime were much broader than that. There is no indication, however, that aspects other than prosecution were actively being considered within the ICO. It is difficult on the face of it to understand why not: that question is considered in some detail below. Both in law and in terms of the reputation of the ICO, operational decisions, especially any involving the press, would have been complex and significant, and Mr Thomas was ultimately accountable for them. Motorman was not a simple operational issue: it was an indication of data protection breaches and poor practice on an unprecedentedly large scale and driven by the newspaper industry. It obviously engaged the ICO functionally and could have reputational consequences. In addition to criminal proceedings, there was a spectrum of powers and functions which, at any rate potentially, could be engaged, in different combinations. These are considered in more detail below. Given the inherent risks in criminal proceedings, contingency planning was also in question. In other words, there were strategic decisions to be taken in considering the operational response to Motorman which could only be taken effectively at the level of strategic overview. However those in a position to take that strategic overview of operations emphasised to the Inquiry that they were not doing so. In addition to operational responses there were political possibilities and it is these that Mr Thomas focused on. His strategy was to take a twin-track approach, consisting of initiating a dialogue with the Press Complaints Commission and undertaking a campaign to persuade the government to change the law to introduce custodial sentence maxima for s55 of the Act. In some ways, Mr Thomas characterised this as in itself an operational response:41 I think we were using our powers to promote good practice. That was a far more general power, and you know, that was the justification, the rationale the statutory foundation for much of what we did was promoting good practice. I would describe pretty well everything we did in this area as promoting good practice. 2.8 There were, however, risks in the extent to which the most senior staff were at a distance from the specifics of the operational response to Motorman. The first was that the strategic approach adopted would be insufficiently informed by detailed operational knowledge and understanding of the problem revealed. The Motorman material was a very rich resource of empirical evidence of the nature and scale of the presenting problem, and any strategic solution was likely to have been importantly enriched by expert analysis of that information in the context of the industry in question. The second risk was that the political and operational responses would be insufficiently well co-ordinated for the maximisation of the effectiveness of each. Decisions made in one context might well be capable of affecting the other at least at a handling level. Mutual knowledge and understanding would be important resources for both. Finally, the third risk was that if the top of the office did not sufficiently communicate with or engage the operational part of the office about the political strategy,
2.6
2.7
p25, lines 3-9, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf
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operational decisions might be taken on the basis of weak knowledge or assumptions about the operational implications of the political strategy. 2.9 As for the distance that Mr Thomas kept from operational decision-making in Motorman, he put his own frame of mind in embarking on his twin-track political strategy in this way:42 My speculation is when I was told some time in October or November [of 2003] that it was going to be too expensive or too difficult to pursue the journalists, thats when I went off to the Press Complaints Commission. But throughout that period from March to October, as far as I was concerned, it was being handled in what I can broadly call the normal way by those who were charged with enforcing Section 55. 2.10 This speculation does not seem to be strictly accurate. At the time, with the assistance of Counsel, the investigations officers evidently continued actively to consider the possibility of criminal proceedings in relation to the press. The availability of civil investigation and enforcement powers also fell to be considered in the alternative in any event. In other words, Motorman, remained a live operational issue for the ICO at the time Mr Thomas embarked on his political strategy; there were therefore risks both to it and to his own plans.
3. The approach to the PCC

3.1 Mr Thomas was clear that it was his personal decision to approach the PCC;43 this was reinforced by his Deputy, Mr Aldhouse. In oral evidence to the Inquiry, Mr Aldhouse said:44 I do recall that Richard Thomas decided that he wanted to pursue the route of going to the Press Complaints Commission and writing to Sir Christopher Meyer, but I have to say I think that was Richard Thomass decision rather than the result of some discussion. 3.2 Pressed as to whether he would not have expected, as Deputy, to have been involved, he said he would, but he was otherwise engaged, including in Brussels. Although Mr Aldhouse saw his own role as somewhat dissociated, given the policy ramifications that the Motorman case might throw up and the potential cost implications for the ICO, when asked whether it was strange that he was not at least involved quite closely in discussions with Mr Thomas, his response was:45 What can I say? Its for the Commissioner to decide how he runs the office. If - and it is worth bearing in mind, of course, that it is - that the Commissioner is a one-man band and if the Commissioner decides to take a route, so be it. 3.3 In the event, on 4 November 2003, Mr Thomas wrote personally to the Chairman of the PCC, then Sir Christopher Meyer.46 He explained that his idea had been to go collectively
p45, lines 12-20, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-9-December-2011.pdf 43 p2, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fourth-Witness-Statement-of-RichardThomas-CBE.pdf 44 p42, lines 8-13, Francis Aldhouse, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-5-December-2011.pdf 45 p43, lines 19-23, Francis Aldhouse, ibid 46 In evidence, it is somewhat surprising that he sought to distance himself from the drafting of the letter: p64, lines 9-18, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-MorningHearing-9-December-2011.pdf
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rather than individually to the press.47 This gives rise to a number of issues. First, what his understanding of the role and functions of the PCC was (and how that developed); second, to what extent he understood the PCC to be a representative of the press collectively and to what extent a regulator of the press (two very different propositions); and third, how he judged the ICO and PCC would relate to each other functionally and how he managed that relationship. The resolution of these leads to the overarching question about the objectives in approaching the PCC, whether they were appropriate and how effectively were they achieved. 3.4 In relation to his approach and objectives, Mr Thomas was looking at these at a high level and generic nature which was some distance from the immediate operational issues faced by the ICO. He did not have it in mind to ask the PCC to investigate the specifics of the Motorman material or the conduct of the press (although he does not appear to have resolved how an investigation would be handled if at all within the ICO). He wanted a general, forwardlooking exercise, conducted across the industry as a whole, with a view to putting a halt to the practice of commissioning unscrupulous private investigators to obtain confidential personal information without regard to whether means such as blagging and corruption were used. He considered that this would principally be achieved by issuing a prominent and general condemnation of the practice and securing appropriate changes to the Editors Code.48 There is, however, no clear indication of how Mr Thomas thought condemnation by the PCC and changes to the Code would definitively terminate the practice, nor of what, if any, complementary action would be necessary or desirable on the ICOs part to achieve that result. Mr Thomas was also concerned about the tone of his approach. He wanted to make a constructive and friendly49 overture to the senior leadership of the PCC. He evidently had in mind that a good relationship50 would be important. There was to be an element of outreach and informality, so lunch meetings were contemplated, Mr Thomas would attend on the PCC so far as location was concerned (a concession inevitably constrained by the location of his premises in Cheshire), and formal or agreed notes were not expected. In other words, Mr Thomas intended to conduct the relationship himself, at a personal level and in a personal manner. The letter51 drew attention to a recommendation of the Parliamentary Culture, Media and Sport Select Committee that the Editors Code should be amended to include explicit bans on payments to the police for information and on the use and payment of intermediaries such as private detectives. The letter outlined the Motorman findings and the Metropolitan Police investigations. It stressed the considerable volume of material uncovered; the indication that journalists from most newspapers and many periodicals were customers of Mr Whittamore; and that numerous journalists routinely obtained confidential information that they should have no access to. It suggested that this material was being obtained in the service of celebrity gossip, not to expose wrong-doing, and that the sums involved and the nature of the documentation made it difficult to believe that senior managers were not aware of what was going on, and were therefore at least tacitly condoning it.
3.5
3.6
p111, lines 5-8, Richard Thomas, ibid pp7-9, lines 25-4, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf 49 p114, lines 19-20, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-9-December-2011.pdf 50 p2, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-AfternoonHearing-9-December-2011.pdf 51 pp1-2, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-3.pdf
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3.7
The letter also indicated that the ICO was considering whether to take action under the DPA against individual journalists and/or newspapers. It was put to Mr Thomas by the Inquiry that this was an empty threat; he resisted the idea that it was a threat of any sort, on the basis that he intended the letter to be a constructive and friendly opening in my engagement with the Press Complaints Commission but he did accept that it may have been somewhat overstating the case.52 It suggested however that the ICO had provisionally concluded that it would be appropriate first to give the PCC and its Code Committee the prior opportunity to deal with the issue in a way which would put a stop to the deplorable practices across the media as a whole. It envisaged that the ICO would provide some of the Motorman material to the PCC and that the PCC would respond with a suitable change to the Code; this could provide a more satisfactory outcome than legal proceedings and would also, it was suggested, be consistent with Sir Christopher Meyers wish expressed to the Select Committee to demonstrate the effectiveness of the PCC. In the light of all that has been said about the PCC, it is significant that the letter addresses the relationship between the ICO and the PCC as Mr Thomas saw it. Intending to discuss the relationship, he said:53 I believe it would be to our mutual advantage to meet at an early opportunity to discuss the matters raised in this letter and, more generally, our respective roles and the relationship between our organisations. He also indicated that: though I do not wish to usurp your role as the regulator of the press - newspapers, and their employees, are subject to the Data Protection Act 1998.54
3.8
3.9
Mr Thomas was surely correct to suggest that the respective roles and responsibilities of the two organisations, namely the statutory data protection regulator and the industrys voluntary body, would be an important issue. The obvious asymmetry made it so. The ICO had legal functions and duties to be discharged in relation to the matter of how businesses acquired and used individuals information; the PCC did not. It is inevitable therefore that Mr Thomass approach would have had to have been at the level of seeking to elicit the voluntary cooperation of the PCC rather than making a claim on any complementary or overlapping formal legal jurisdiction. Mr Thomass letter suggested a meeting within days at the offices of the PCC; he approached that meeting in a structured way, preparing a speaking note55 setting out his evident hope that the PCC would respond with a general condemnation and changes to the Editors Code. The meeting took place on 27 November 2003, Sir Christopher was accompanied by Guy Black (then the Director of the PCC, now Lord Black of Brentwood). Mr Thomas said that, initially, the PCC had at first not really known why the ICO had approached them, but that the atmosphere changed as he set the matter out and he convinced them a serious matter was in issue and that the two organisations would work together to deal with the problem.56 His subsequent written notes stated:57
3.10
3.11
pp114-115, lines 24-3, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Morning-Hearing-9-December-2011.pdf 53 p1, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-3.pdf 54 ibid 55 p1, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-RJT5.pdf 56 pp5-7, lines 1-11, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf 57 p1, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-RJT61.pdf
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The PCC would like time to consider their response. They were clearly surprised by the scale and nature of the material we have collected and see this as a watershed in terms of this sort of activity. Although this was not suggested by us, they would be resistant to taking over individual cases and taking action in each case instead of us. Their starting point was that statutory bodies should enforce the law, not them. But they seemed to be increasingly ready as the meeting progressed to work with us as fellow regulators with a strategic response. This might lead to some sort of general condemnation and though there are some difficulties an amendment to the Code. It is for them to identify precisely what they might do, and they recognise this. They want a second meeting before Christmas. 3.12 It is somewhat surprising that Mr Thomas appears to have seen a measure of equivalence between the roles of the ICO and the PCC, if not actually of deference to the latter. In oral evidence he explained that I think we were both very proud of independence, Im sure,58 and he noted to himself after that first meeting that it had been constructive fellow regulators. In the circumstances, I felt driven to ask:59 What are you relying on as concluding that the Press Complaints Commission was a regulator? Youre a regulator, but youve concluded here that theyre a regulator, or asserted that theyre a regulator. Im just interested to investigate your understanding of that. 3.13 The response from Mr Thomas was that the PCC called themselves a self-regulatory body and confirmed that at that point he certainly saw them as such; and therefore as likely to be intelligence-driven, proactive, mainly focused on either prevention or punishment. He had drawn parallels with the Advertising Standards Authority and the banking and insurance ombudsman schemes with which he was familiar from his previous career, and saw the PCC as, like the ASA, able to intervene and take action to prevent unacceptable behaviour. It was with that expectation that he had approached Sir Christopher. The PCC was supposed to be in charge of the press, they ought to know whats going on60 and, indeed, to stop it. Mr Thomas accepts now that this was a misconception. In oral evidence to the Inquiry he confirmed that:61 I did see them and they held themselves out as a regulator and I think experience showed that they were not a regulator in the conventional sense. He went so far as to suggest that the inadequacy of the PCC to the task he had envisaged for it formed a part of the dialogue:62 I can recall saying, you know, Why cant you transform and change the Press Complaints Commission to make it look more like the effective self-regulation models Ive encountered elsewhere?
p3, lines 3-4, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf 59 p115, line 23, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-9-December-2011.pdf 60 p119, lines 3-4, Richard Thomas, ibid 61 p118, lines 16-19, Richard Thomas, ibid 62 p118, lines 7-10, Richard Thomas, ibid
58
3.14
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3.15
His current understanding was that the PCC was essentially a complaints handler, with functions focused on the investigation of complaints from the public. That leads to the question of the steps he might have taken to ascertain the position at the outset, or as his understanding of the PCC developed over time, not least bearing in mind his express placing the question of the relationship between the two bodies on the agenda at that original meeting. This is important because the assumption of equivalence (or deference) with which he mistakenly embarked on the initiative with the PCC could have had direct implications for decisions the ICO might otherwise have made about the exercise of its own powers and functions. That, as well as Mr Thomas personal distance from the operational issues raised for his office by the Motorman data, put him in an unsatisfactory position in embarking on this enterprise. Furthermore, although the initial letter expressly put the question of respective roles and relationships on the agenda for discussion with the PCC, it is evident that the opportunity was not in fact taken to clarify that fundamental question. Mr Thomas was specifically asked whether the role of the PCC was described and his perception discussed and corrected.63 His response was that over the course of his interactions with Sir Christopher weve probably touched on some of these matters. Given the significance that Mr Thomas attached to this approach that cannot, in the circumstances, be considered a satisfactory basis on which the ICO, as a statutory regulator, ought to have made any decisions about respective roles and responsibilities. The likely explanation for (and consequences of) this is considered below. Sir Christophers own account of that first meeting was more highly coloured. He was evidently interested in what he heard about Motorman: he characterised the ICO as describing a fairly apocalyptic situation,64 leading them to expect court action in relation to the press (which did not materialise), but principally in getting to the data underlying the issue:65 I wanted beef. I wanted red meat, Mr Jay, and he didnt give it to me. This, on his account, would have enabled the PCC to have gone into some kind of action with the newspapers in question and to sharpen and hone their guidance to the press. In the light of the way in which Sir Christopher dealt with Operation Caryatid, it is not obvious what might have been done but, although his letter had held out the prospect of some limited disclosure of material, Mr Thomas was clear in his own mind that his purpose was not to ask the PCC to investigate individual cases. In any event, the PCC was equally clear that they could not look at cases from unidentified victims: this could have been a clue as to the PCCs quintessentially complaint-handling function.
3.16
3.17
3.18
Sir Christophers appetite for beef, therefore, was evidently related at least in part to seeing the proof of the message he was being given. Pressed as to whether the PCC could not simply have taken on trust the ICOs indication of the extent of the problem without the underlying data, Sir Christophers answer was that while of course it could be assumed Mr Thomas would not have made the allegations without some substance, they never saw the substance or the expected litigation.
p117, lines 21-24, Richard Thomas, ibid p118, lines 6-9, Sir Christopher Meyer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-31-January-2012.pdf 65 p111, lines 22-24, Sir Christopher Meyer, ibid
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Sir Christopher also describes telling Mr Thomas that he was the Information Commissioner and should get on with it. Prosecute these guys, noting that And prosecutions came around none, ever, in my time, anyway.66 This reaction is echoed in Mr Thomass own note where he records the PCC as emphasising not our role to enforce law, not arm of ICO.67 The refusal of the PCC to take any action while criminal proceedings were pending or possible was also made plain;68 this was a position which Mr Thomas on his part made very clear he did not accept, but from which the PCC refused to move. The message from Sir Christopher, in other words, was that the Motorman evidence was ICO business rather than for the PCC; they were prepared to help as far as they could, but needed more to go on.69 The reaction (that the PCC wanted details of the underlying data and decisive action from the ICO before it could act) continued to set the tone and might be viewed as an early warning of the extent to which the PCC was either unwilling or unable to deliver what Mr Thomas hoped to achieve. It might (but did not) cause a reconsideration of his investment in the twin-track strategy of approaching the PCC and the government, but without at the same time attending closely to the operational response itself. A year passed with little progress. Mr Thomas described the joint effort to produce a guidance note as seeming to sort of grind to a halt in April of 2004.70 He wrote to the PCC on 8 December of that year expressing concern that the work had run into the sand,71 and that there was consequently a real risk that the problematic practices would continue unabated. This comment is particularly significant because if the ICO apprehended that there was a real risk of continuing unlawful conduct after the Motorman seizure there was again no indication that this was the subject of any reassessment, either of the PCC strategy itself or of the operational response and options within the ICO. A whole year had elapsed since the first approach to the PCC, two years since the seizure of the Motorman material. These were potentially very serious matters, and the PCC strategy had yet to bear any fruit. Mr Thomas explained that he did not lose all faith.72 In the circumstances, the basis of that faith and his continued reliance on it are increasingly hard to understand. Both sides appear to have thought that the matter had become bogged down in legal details, including over the matter of the effect of the public interest exemption in s55 of the DPA in relation to actual or potential criminal liability of journalists. Mr Thomas put it to the PCC in his letter that he was strongly of the view that inaction on their part would show the principles of self-regulation in a poor light.73 If his intention was to suggest either that the PCC risked its own credibility politically, or that the industry risked direct regulatory action from the ICO, there is no evidence that Mr Thomas had any particular basis for making such a suggestion.
3.20
3.21
3.22
3.23
p114, lines 20-22, Sir Christopher Meyer, ibid p3, line 17, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf 68 p4, lines 18-25, Richard Thomas, ibid 69 pp117-118, lines 23-2, Sir Christopher Meyer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-31-January-2012.pdf 70 pp10-11, lines 23-4, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Afternoon-Hearing-9-December-2011.pdf 71 p1, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJT-Exhibit-7.pdf 72 p12, lines 16-17, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf 73 p13, lines 12-14, Richard Thomas, ibid
67
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3.24
On 15 December 2004, Sir Christopher replied74 indicating that he was going to resurrect the project with a view to approving a note the following February. He made it clear, however, that the key objective of the note from the point of view of the PCC was to assist journalists in understanding how to comply with the DPA: that would be most welcome. A very brief was issued (probably in the spring of 2005)75 but evidently with little impact; it contained no reference to Operation Motorman and no warning to journalists.76 In evidence, Tim Toulmin (then the Director of the PCC) agreed that there was no attempt by the PCC in 2005, through its guidance, specifically to warn the press of what they should do in the future by reference to what they might have done in the past.77 His view was that, given that the PCC was a complaints body looking at breaches of the code of practice rather than the Data Protection Act, there was some question about whether it should even have issued the note it did, but it did want to be helpful. The PCC had regarded it as pretty much outside its remit and required a specific decision from its board to proceed with the matter at all. Mr Toulmin also agreed with the proposition that the PCCs view was: Well, there isnt a specific complaint here, therefore our powers arent engaged and were only going to take second place to the Information Commissioner, who is the real regulator in this area.78 Mr Toulmin also said:79 The question was, I think, where the different responsibilities lay. The PCC, as a platform for discussing the behaviour of journalists and so on in another context, which was about the application of the code of practice, was happy also to say, By the way, Richard Thomas has this campaign about the Data Protection Act and hes right to do so, but beyond that, it was difficult really to know what the PCC could do. His conclusion was that Mr Thomas should have engaged directly with the industry, the trade bodies or straight to the Code Committee (as being more representative of the industry) and not to the PCC at all: it did not have the right remit.80 Throughout this period, however, there was still no evidence that the ICO was either successfully managing the relationship with the PCC towards its stated objectives, or assessing the alternatives.
3.25
3.26
3.27
The next step was the publication by the ICO of What Price Privacy81on 10 May 2006; the ICO included the PCC in its distribution list. A response (described with conscious understatement by Mr Thomas as disappointing) came on 31 May in a form acknowledged by Sir Christopher as a bit sneering. It was in these terms:82 Thank you for sending me a copy of your report, What Price Privacy? It was an interesting read. I am sending you a copy of our annual report, which we have just published, along with the text of a speech I gave last week in which I refer to your remarks about the PCC.
p1, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJT-Exhibit-8.pdf p14, lines 9-13,Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf 76 pp83-84, lines 22-3, Timothy Toulmin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-30-January-2012.pdf 77 p84, lines 10-17, Timothy Toulmin, ibid 78 p86, lines 5-15, Timothy Toulmin, ibid 79 p88, lines 7-15, Timothy Toulmin, ibid 80 p89, lines 7-20, Timothy Toulmin, ibid 81 More fully discussed below 82 p1, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJT-Exhibit-12.pdf
75
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I think that, as a next step, it would be helpful if we organised a meeting so that we can explore what more it is that you think the PCC can do. You will appreciate that your call for us to act came rather out of the blue, and we have no material to work with other than what you put into the public domain in your report. Perhaps someone in your office could be in touch ... to arrange a suitable time. 3.28 The enclosed speech was largely a celebration of the achievements of the PCC, and immediately before closing with the claim that 15 years of the PCC has changed the culture of an entire industry, dealt with the ICO in two short paragraphs which strongly suggested that it had reached the limits of the action it was prepared to take:83 There is one issue not touched on in the Report which merits an observation. Recently, the Information Commissioner, Richard Thomas, wrote to me, as he did to members of the newspaper and magazine industries, about the suborning of people by agencies paid by publications to obtain confidential information. This is something that I have intermittently discussed with Mr. Thomas over the last two years or so. It was as a result of our exchanges that the PCC published last year, in collaboration with the Information Commissioners office, an advice note to journalists about the Data Protection Act and how it impinged on their profession. Part of the purpose of the note was to remind journalists that offering money for confidential information, either directly or through third parties, was illegal. Mr. Thomas is clearly concerned that this is a practice which continues. He would like the PCC to do something more about it. I intend to tell him once again that we can and do urge on journalists respect for the law bribery has no place in journalism. I will go on urging. And I look forward to discussions with Mr. Thomas about what more he thinks the PCC can do about this within the self-regulatory framework. But clearly it would not be viable simply to duplicate the criminal law in the Code of Practice. 3.29 This did not prompt a reassessment of the strategy, but, on 13 July, a further meeting between Mr Thomas and Sir Christopher took place. The ICO note of the meeting84 identified as key issues the PCC response to What Price Privacy?, support so far and next steps, along with the respective roles and responsibilities of the PCC and the code of practice committee of editors. Sir Christopher was reported to have said that the PCC is not able to act as a general regulator. He believes that what is needed is a strong stance from the ICO including prosecutions. He queried what more the PCC could do. The ICO considered that the PCCs role was to come up with proposals on raising awareness to help prevent misconduct, and seemed to consider in turn that there was little more that the ICO could be expected to do. Sir Christopher encouraged the ICO to engage directly with the industry and Tim Toulmin stressed the need for the PCC to act with the consent from industry in the matter of issuing guidance, and also recommended direct engagement with the industry. A number of action points were recorded for the meeting. These were: (a) (b) (c)
83 84
3.30
the Code of Practice Committee of Editors was to be engaged by the ICO and the PCC to discuss the possibility of changes to the Code and production of guidance; the PCC was to give thought to the production of question and answer style guidance separate of the Code; the PCC was to continue to condemn the illegal obtaining of confidential personal information by journalists; and
pp10-11, Richard Thomas, ibid pp1-3, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-RJT132.pdf
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the PCC was to provide the ICO with a formal response to the recommendations in the report.
The disappointment felt by Mr Thomas with the response of the PCC remains keenly felt in his oral testimony.85 He was exasperated with the PCCs line:86 []Coming back all the time: What do you want us to do? Tell us exactly what to do. My line was: Well, you are the self-regulators. Youre the ones supposed to be working out what is needed to stop the press getting into unacceptable territory. Its not my job to tell you what your job is.
3.32
Sir Christophers account of this meeting also evinced a certain amount of exasperation also:87 I was sort of repeating the same message like a parrot: wheres the beef? For Petes sake you know, we can do general exhortation, we can do guidance, we can do this stuff, but if you really want me to home in on miscreants, I must have some evidence of who has been procuring enquiry agents or hiring enquiry agents to procure information illegally, and he was unwilling to do that. Asked what he might have meant by saying that the PCC was unable to act as a general regulator, Sir Christopher said this:88 I think what I had in mind there was a notion that we should in some way take on the work of the Information Commissioner by virtue of being a Press Complaints Commission, and this is what I wanted to reject. The point I always made to Mr Thomas, apart from my insistent demands on beef, was to suggest that we had to work in a complementary way. He did his thing, but there were things that we could do to help him, and Ive described them...
3.33
It is not the function of this part of the Report to analyse the response of the PCC on its own account;89 rightly or wrongly, however, the PCC had unmistakably demonstrated that it was unwilling or unable to take action of a sort which could or should have convinced the ICO that the problems with the culture, practices and ethics of the press evidenced in the Motorman material had been definitively addressed by the industry for the future. It had also demonstrated a challenge back to the ICO to address the situation through the discharge of its own powers and functions, and specifically by direct engagement with the industry. The result is that it was evident that the strategy adopted by Mr Thomas (dialogue with the PCC, and distance from both from the operational choices of his office and from direct engagement with the regulated members of the industry) was becoming increasingly unlikely to achieve its aims. Whether Mr Thomas considered himself to be dealing with an ineffective industry regulator, or with a recalcitrant representative body of the industry itself, the onus was clearly firmly on the ICO to reflect further on the direction that it wished to take with the Motorman evidence. No such reconsideration appears to have taken place. Nor is it clear that the ICO explained to the PCC either its position or its operational approach.
3.34
pp15-17, lines 12-9, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Afternoon-Hearing-9-December-2011.pdf 86 pp16-17, lines 21-17, Richard Thomas, ibid 87 p108, lines 11-19, Sir Christopher Meyer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-31-January-2012.pdf 88 p2, lines 5-13, Sir Christopher Meyer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Afternoon-Hearing-31-January-2012.pdf 89 Part J, Chapter 4
85
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3.35
Doubtless in the hope of making progress, in accordance with the action points from the meeting, Mr Thomas wrote to the Code Committee on 19 July 2006 and a meeting was fixed for 21 September. In the meantime, there was a formal response from the PCC to the effect that the ICO should take up the question of Code amendment directly with the Code Committee and that the PCC would await the outcome of that process before turning its mind back to the issue of guidance90. Mr Thomas later described himself as having been fobbed off to the Code Committee by Sir Christopher.91 Notably, the question of a response by the PCC was now complicated by the fact that the then Department for Constitutional Affairs, had issued a consultation paper (picking up from What Price Privacy?) relating to the introduction of custodial penalties for conviction under s55 of the DPA. In other words, at this point, if not earlier, the strategy around the approach to the PCC became inextricably entwined with the political campaign which was the second limb of the ICO response to the Motorman material. In relation to this campaign, the PCC unambiguously positioned itself not as a regulator of the industry but as a champion of the view opposing any legislative change: it did so by active political lobbying (not least through Guy Black). The twin tracks of Mr Thomass approach effectively became one. It is to the political campaign that it is now appropriate to turn.
3.36
4. What Price Privacy? The political campaign

4.1 Any new statutory regime can take time to bed down in practice and a regulator created by statute will be in the best position to report on its practical operation. In relation to the DPA, the ICO had two channels for doing so. The first was to do so informally to the sponsoring government department with policy responsibility,92 the second was to do so formally by reporting directly to Parliament either generally on the exercise of its functions under the Act or on specific aspects of those functions.93 It was this second channel which had been used in the case of the What Price Privacy? Reports. Reporting on effectiveness of legislation is not the same as campaigning to change it. The duties of the ICO under the DPA focus on performance of statutory functions94 and do not themselves very obviously provide the platform from which to mount such a campaign. Clearly, the general desirability of a statutory regulator undertaking such a role is a matter of judgment on which I do not express an opinion but a number of issues do fall to be considered. The first is the risk that a political campaign might impact on the principal function of a regulator such as the ICO, that is to say, the discharge of regulatory obligations which must be undertaken independently, impartially, fairly and objectively, and many of them in a quasijudicial fashion. As a matter of law, therefore, any campaign should raise no issue, whether as a matter of fact or of perception, which could cast any doubt on the proper conduct of those functions. In that regard, it is relevant that the ICO exercises regulatory functions in relation to the Government itself both as users of personal information and therefore subject to the ordinary data protection regime but also of course as the single largest collective subject of the freedom of information regime. The Information Commissioner would obviously have to be circumspect in relation to any campaign for change in data protection law and, when
4.2
H
4.3
pp1-2, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJT-Exhibit-17.pdf p22, lines 17-21, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf 92 In this case, the Department of Constitutional Affairs (DCA), later to become the Ministry of Justice 93 http://www.legislation.gov.uk/ukpga/1998/29/section/52 94 http://www.legislation.gov.uk/ukpga/1998/29/section/51
91
90
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personally identifying himself with it, have regard to its effects on the reputation of the office and the enhancement of its role and functions. 4.4 The second issue relates to the choice of the topic on which to campaign. S55 creates a criminal offence with statutory defences and a maximum sentence on conviction of a fine.95 Yet Mr Thomas had said that the ICO was not principally a prosecuting authority. In most regulatory regimes, criminal provisions usually constitute a measure of last resort, dealing with situations either of egregious breach for which no other response is appropriate, or for persistent and escalating breach where other, stepped, interventions have been tried without success. Criminal prosecution is complex and expensive. The deterrent effect of differential maximum sentences is not straightforward (and, as discussed below, of potential relevance at all only if there is a realistic prospect of apprehension and conviction). The importance of s55 to the data protection regime did not therefore lie in its centrality to the operation of the regime, any functional dependence on it of other powers, the regularity with which it was likely to be deployed or its operational visibility to the senior leadership of the office. Nor, of course, is s55 a provision of inherent particular relevance to the press: it is a provision of complete generality, the offence able to be committed by any person, whether or not they are formally subject themselves to regulation by any of the other provisions of the data protection regime. In his first witness statement, Mr Thomas suggested that s55 was likely to be the most relevant provision of the Act to the Inquirys terms of reference.96 Doubtless, he did so because of the prominence that he had given the issue in his strategic response to the Motorman evidence and the role of the press. It was on 15 April 2005, with the conviction and conditional discharge of Mr Whittamore for s55 offences arising out of Motorman, that Mr Thomas records, When I heard this, I can recall personally and strongly sharing my teams feelings of frustration.97 He understood Counsel to have advised as a result that further prosecutions would not be in the public interest. It was then my personal decision to commission a report to be presented to Parliament It will be necessary to consider the sentencing remarks of the judge and the reasons for the sentencing decision but they are, obviously, fact-specific, not least in relation to the personal circumstances of Mr Whittamore and his inability to meet the obligations of a financial penalty. The disappointment in the office at the Whittamore result is understandable, but consideration must also be given to the extent to which the disappointment was, in any event, the direct result of the choices that had been made within the ICO about the extent of its own engagement with the criminal process, and about pursuing alternative or additional operational options more generally. The outcome of the prosecution may have been a blow to the ICO principally because, in the first place, it had represented the majority of its investment in an operational response to the Motorman material. It is beyond question, however, that there was an entirely justifiable and genuine sense that it would have been a travesty for matters to have been left there, given the sheer extent of the evidence uncovered. It is not entirely clear why the approach adopted was seen as the principal way forward.
4.5
4.6
4.7
4.8
Appendix 4 and http://www.legislation.gov.uk/ukpga/1998/29/section/60 p3, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/First-Witness-Statement-of-RichardThomas-CBE.pdf 97 p5, para 13, ibid
96
95
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4.9
What Price Privacy? The unlawful trade in confidential information98 was the report to Parliament on the Motorman affair and its implications by the ICO issued pursuant to its powers under s52(2) of the Act.99 The foreword provided by Mr Thomas introduced the report as being essentially about the evidence of a pervasive and widespread industry devoted to the illegal buying and selling of information contrary to s55, and about the need for change to the law. He put it this way:100 The crime at present carries no custodial sentence. When cases involving the unlawful procurement or sale of confidential personal information come before the courts, convictions often bring no more than a derisory fine or a conditional discharge. Low penalties devalue the data protection offence in the public mind and mask the true seriousness of the crime, even within the judicial system. They likewise do little to deter those who seek to buy or supply confidential information that should rightly remain private. The remedy I am proposing is to introduce a custodial sentence of up to two years for persons convicted on indictment, and up to six months for summary convictions. The aim is not to send more people to prison but to discourage all who might be tempted to engage in this unlawful trade. Operation Motorman is cited as one of the major cases providing evidence for this trade, but a range of other cases are cited also.
4.10
What is striking about this analysis, and indeed about What Price Privacy? more generally, is the absence of any context within which s55 sits in the wider data protection regime. Even ignoring the unexamined assumption that different sentence maxima would have a definitive impact on the problem, no attention is given to the obvious question of what other operational means were available to the ICO to address the problem it had diagnosed. On the contrary, the entire thrust of the report is directed to legislative change on criminal penalties. As the foreword concludes:101 These concerns, and the need for increased penalties, have been raised with the Department for Constitutional Affairs. The positive response that I have received so far is encouraging. These are early and welcome indications of progress on the possibility of Government action.
H
4.11
What Price Privacy? set out the problem. Government action (and of course action by the PCC) was expressed to be the answer to the problem. To focus continued attention on the issue, the ICO was to publish a follow up report after six months to monitor progress on the answer. Putting to one side the important argument that breach of the criminal law should not simply be seen as a cost of doing business, the most important deterrent the criminal justice system can provide is the likelihood of being caught. In the analysis of the perspective provided by the criminal law,102 the first problem in relation to data protection is that those whose personal information is being illegally traded are unlikely to know about it with the result that no complaint will ever be made. Thus, the critical aspect of Operation Motorman was the unexpected discovery of the treasure trove (as was equally the case in relation to Operation
98 99
pp1-43, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-1.pdf http://www.legislation.gov.uk/ukpga/1998/29/section/52 100 p4, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-1.pdf 101 p4, Richard Thomas, ibid 102 Part J, Chapter 2
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Caryatid).103 This is particularly so in relation to cases involving the press because of the complications that will flow from the legal protection afforded to journalistic materials and to sources. In truth, without victim complaints, the only systemic way of identifying criminality of this sort is by the exercise of regulatory investigative powers. If there is a measure of confidence that crime will not be detected, the possibility of a custodial sentence may not be sufficient to discourage the behaviour: it was not sufficient, for example, to prevent the phone hacking exposed by Operation Caryatid. 4.12 Mr Thomas explained the objective behind his focus on increasing the maximum available sentence for s55 in this way:104 I think I had quite a long list of objectives by the end of the day, by the time we got to publishing this report. The first objective was to tell the world what was going on. The primary stated objective was to get the recommendations taken seriously, particularly to get the government to increase the penalty, because we felt the penalty was the main problem. But I also felt and Im not sure this was articulated, but in my own mind the more noise we could make about this, even if not successful in getting the law changed, the more that was likely to have a beneficial result. I wanted to get people on the back foot. Although the significance of a maximum which was financial (so that any penalty would have to be linked to means to pay) is important, it is difficult to see it as the main problem facing a regulator armed with other means of enforcing the law and driving up standards. It had, however, attained a more symbolic quality. 4.13 It is possible to sympathise with the description of the problem in the introduction to What Price Privacy? that low penalties devalued the data protection offence in the public mind and masked the true seriousness of the crime, but it is possible to argue about the degree to which the sentence maxima stood proxy for the regime as a whole. In the perennial struggle to get data protection (and, thus, the ICO) taken seriously, whether by regulated business, by the public, by the courts, by politicians, or by the press, the ICO quite understandably needed to make a public example of the Motorman find. The outcome of the Whittamore prosecution could be thought to reveal that the wider objective had been set back and that failure was in turn symptomatic of the lack of seriousness with which the courts seemed to consider data protection. The sentence maxima contributed to that lack of seriousness, and were in turn a sign of a lack of legislative seriousness: a failure at the political level to take data protection seriously. The s55 campaign was to that extent a test of political commitment, and as such existential for the ICO. The Motorman evidence, and the other evidence referred to in What Price Privacy?, gave the ICO an impressive platform from which to make its case for data protection. Mr Thomas put it this way:105 The ICO put heavy effort into promoting the two reports. The main aim was to secure implementation of our recommendations especially custodial sentences which were primarily seen in terms of deterrence but also to raise awareness about the nature
103
4.14
Had either Mr Whittamore (in relation to Operation Motorman) or Mr Mulcaire (in relation to Operation Caryatid) not retained the records that were seized, none of the material which has proved so important in these investigations would ever have been seen 104 pp28-29, lines 17-5, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Afternoon-Hearing-9-December-2011.pdf 105 p8, para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/First-Witness-Statement-of-RichardThomas-CBE.pdf
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and scale of the illegal trade and get it taken much more seriously. The technique of announcing the intention to produce a second (progress) report was deliberately part of this strategy. I was personally involved in this promotional activity to a very considerable extent. The Commissioner - as the personification and leader of the ICO - is obviously expected to be a visible part of all major activity. In this case, I attached particular priority to the issue and also viewed promoting the reports as a tangible way of fulfilling a wider ambition to get data protection taken more seriously. 4.15 Operation Motorman triggered the political campaign on s55 although that campaign was neither a specific response to the evidence uncovered by Motorman, nor was it addressed specifically to the culture, practices and ethics of the press. At its heart, although it was much more general and, in the mind of Mr Thomas, symbolic of the struggle to get data protection taken seriously by a wider political audience, it very quickly acquired totemic resonances of a very different kind in the political arena into which What Price Privacy? had ventured. It is important to appreciate that the ICO campaign on s55 was not targeted specifically at journalists although the campaign against it was championed by the press.106 The publication of What Price Privacy? marked the emergence into the public arena of what had until then been low-key policy discussions with the Department for Constitutional Affairs about law reform. It also coincided with a point in the protracted and frustrating dialogue between Mr Thomas and the PCC at which the latter had formed a view that there was little it was able or willing to contribute to the nominally jointly-espoused aim of effecting culture change in the press, without direct regulatory engagement by the ICO with the industry. The arrival of What Price Privacy? proclaimed the introduction of custodial penalties as the solution to the problem the ICO had been describing to the PCC. This could reasonably have been expected to have been interpreted by the industry as the solution directed to the culture, practices and ethics of the press in relation to the acquisition and use of personal information. It was a solution the press entirely rejected for itself. Two results predictably followed. The first was the mobilisation of a political lobbying effort by the press against the campaign, directed to the heart of government. The second was a hardening of the attitude of the press (now unmistakably represented by the PCC) towards the ICO. As Mr Thomas described, his political campaign was both elaborate and extensive; on any basis, it was a major undertaking and a substantial investment of his personal time and attention. In the end it involved him engaging at the highest levels in Government and extensively in Parliament, including by giving evidence to no fewer than four Select Committees.107 By December 2006 (the time of the promised follow-up report What Price Privacy Now? The first six months progress in halting the unlawful trade in confidential personal information),108 the campaign had, at least in its own terms, achieved a measure of success. On 24 July 2006, the DCA had published its public consultation paper on increasing the sentencing maxima for s55 to include custodial penalties.109 There had been a degree of public attention and media coverage (What Price Privacy Now? had included four pages of headline press cuttings) and
4.16
4.17
4.18
106
p43, lines 1-9, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf 107 pp9-10, para 23, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/First-Witness-Statement-ofRichard-Thomas-CBE.pdf; pp30-31, lines 12-19, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/12/Transcript-of-Afternoon-Hearing-9-December-2011.pdf 108 pp1-30, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-2.pdf 109 http://www.dfpni.gov.uk/consultation_misue_of_personal_data.pdf
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the report claimed an encouraging response from the investigations industry, and raised awareness among (at any rate intermediary) media organisations. 4.19 The follow-up report expressed disappointment with the opposition from within the press (both by editors and proprietors) to the s55 campaign and considered it misconceived in underestimating the existing protections in the law and the commitment of the ICO itself to freedom of expression. Its conclusion was that:110 There is still further work to be done to reduce the demand for illegally obtained confidential information. This work will be ongoing. We will continue to track down and prosecute offenders. We will continue to press the Government to introduce the option of a prison sentence and see this progress report as supporting that goal. We will continue to raise awareness and we will encourage and work with any organisation that wants to raise standards or produce clear guidance on data protection obligations. In particular we will be working closely with the media on the development of relevant guidance and standards for journalists.
5. What Price Privacy? The reaction of the PCC and the editors
5.1 At this point it is appropriate to return to the dialogue between Mr Thomas and the PCC whose formal response had been to direct the ICO to the Editors Code Committee while noting that the issue had become complicated by the publication of the DCA consultation on s55. On 21 September 2006, Mr Thomas met Ian Beales, Secretary of the Editors Code of Practice Committee. Mr Thomas described the meeting in his internal note as interesting and intelligent. 111 In addition to the established themes of louder condemnation of unacceptable practices and suitable amendments to the Code, Mr Thomas was explicitly now also looking for better awareness of s55 from the industry. S55 was evidently the dominant theme in the event, Mr Thomas with a degree of understatement indicating that support for the prison sentence would be welcome, but I did not expect that and Mr Beales dismissive of the DCA paper and stressing the chilling effect of the proposal. Mr Thomas had proffered some proposed Code changes of his own but came away from the meeting largely empty handed. On Mr Thomass account, Mr Bealess position was simple: his main difficulty is that there is not much incentive to improve the Code unless the threat of increased penalties disappears at the same time. If accurately represented, this is a somewhat remarkable position to adopt: the offence contained within s55 was the law and contained within it a defence for journalists acting in the public interest. A Code of Conduct should surely provide the very best guidance it can and it is difficult to see why there needs to be an incentive to improve it. In any event, the press had fully subsumed the dialogue between the ICO and the PCC into its own political campaign in opposition to reform of s55 and it may be legitimate to infer the extent to which Mr Thomas had accepted that reconstitution of the agenda: his note suggests that the talk of producing joint guidance was now explicitly in terms of better section 55 guidance rather than anything more generally addressed to the culture, practices and ethics of the press in the handling of personal information.
5.2
5.3
5.4
110 111
p29, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-2.pdf p1, para 1, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJT-Exhibit-18.pdf
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5.5
On 27 October 2006, there was a follow-up meeting (at NIs Wapping premises): the Committee Chairman Les Hinton, and Stephen Abell from the PCC also attended. The note of that meeting suggests that Mr Hinton made plain from the outset that the Code Committee had no mandate to take a position at that point but was considering its response to What Price Privacy?.112 The conversation appears to have amounted to a further turn around the familiar course but with Mr Thomas now leading on s55. Dealing with the illegal trade needed tougher sentences, but these were not targeted at journalists (who in any event had the protection of special exemptions), he was seeking co-operation with guidance and code revisions as a means of addressing journalisms contribution to the demand side of that illegal trade. Mr Thomas had evidently responded to the industrys elision of the PCC dialogue and the s55 campaign, not by attempting to return the dialogue to its original broader purpose but by accepting the redrawn terms of reference and trying to argue his side of that debate. Mr Hintons response, however, is illuminative of the distance this dialogue had shifted from the original sceptical but pragmatic tone of the PCC in the opening stages of the encounter. Not only did he deploy the familiar challenge back to the ICO on the question of regulatory inaction, and the clear statement of objection to the s55 campaign, cast in the language of the chilling effect on journalism, but he moved the counter-attack on to the territory of the principles of press self-regulation. Mr Thomas records the Committee representatives as having:113 expressed the view that a prison sentence would undermine the effective operation of the PCC as legal advice is likely to result in journalists not cooperating with PCC investigations in case they incriminate themselves. In addition explicit inclusion of offences in the code would need to be investigated by the prosecuting authority not the PCC effectively taking that provision outside of and therefore undermining the self regulatory model. This ignores the fact that the criminal offence existed and was hardly the constructive dialogue of fellow regulators; this was taking the political battle on to definitive territory with an open challenge to the ICO to retreat from PCC (that is to say industry) territory.
5.6
5.7
In a contemporaneous handwritten note by Mr Thomas,114 the words last chance saloon appear. At one stage earlier in the dialogue, Mr Thomas appears to have deployed an intimation that the credibility of the PCC as a self-regulator was at stake in response to the action he sought from them in the aftermath of Motorman. If he was seeking to deploy it again in the highly-charged context of the s55 debate that was undoubtedly a high-risk political strategy, and Mr Hintons response would be to a degree less startling. Needless to say, Mr Thomas emerged from that meeting empty handed again. Mr Hintons followup letter of 17 November was more positive in tone, but non-committal as regards further industry action.115 It was now fully three years since Mr Thomas had moved to open a dialogue with the PCC, during which period he had identified himself very personally with the conduct of that relationship. The return on that significant personal investment was not evident. But even now, at a point which might be described as open antagonism, there was no evidence that he sought to reappraise his approach. It is possible that one effect of the elision of the PCC and s55 strands of his strategy had been to reframe the former not as a practical end in itself but,
5.8
112 113 114 115
pp1-2, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-RJT211.pdf p2, Richard Thomas, ibid pp1-2, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-RJT221.pdf pp1-2, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJT-Exhibit-251.pdf
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by keeping open a channel of communication, as a means of furthering (or at least seeking to manage opposition to) the latter. At any rate, Mr Thomas persisted in it. 5.9 What Price Privacy Now? provided some public comment on the interaction between the ICO and the PCC, thereby to some extent setting the agenda for its future interaction. It also records an understanding that the PCC monitors and adjudicates on disputes about breaches of the Editors Code of Practice, which sets out the conduct the press have agreed to follow as part of a self regulatory system.116 The progress recorded was, however, relatively modest and is in these terms: (a) (b) (c) The PCC had confirmed publicly and in writing that journalists must act within the law. It had agreed to keep repeating that message and the ICO hopes that this will be done as loudly and actively as possible. There had been discussion about Code amendment relating to the acquisition of personal information unfortunately, however, no concrete proposals have so far been brought forward. The Code Committee had rejected the ICOs own suggested amendments, but had agreed to keep the matter under review. There was agreement in principle to the issue of guidance for journalists by the PCC with ICO assistance.
(d) (e) 5.10
On 4 January 2007, there was a further meeting with Murdoch MacLennan (then Chief Executive Officer of Telegraph Media Group) and Guy Black, both by this stage leading actors in the s55 counter-campaign. On Mr Thomas account,117 the agreed action points were that the ICO should prepare guidance on s55 and the public interest defence with a view to helping journalists to navigate it. It is notable, first, that the focus appears to have swung fully around from the industry representatives being asked to take action to change the culture, practices and ethics of the press, to the regulator being asked to clarify the law and his approach to regulation. Secondly, this appears, in itself, to have become part of what was, by now, a threeway negotiation on s55 between the press, the government and Mr Thomas. The course of that negotiation is set out more fully in that part of the Report that deals with the relationship between the press and politicians.118 It culminated in a compromise arrangement whereby a custodial penalty for s55 was finally introduced by the Criminal Justice and Immigration Act 2008,119 together with an enhanced, more subjective defence for journalists, but neither provision was commenced as operative law; commencement relies on the exercise of an Order-making power which has not to date been exercised. At the same time, further desultory exchanges were continuing between Mr Thomas and the PCC. By letter of 27 March 2007, the Code Committee eventually rejected the amendments to the Code that he had proposed, but suggested some alternatives.120 The ICO responded on 16 April, accepting the changes on the basis of a hope that they will be introduced with maximum publicity and advice to the media. Otherwise, the burial of the changes within the existing Code, and the absence of a section explicitly prohibiting the obtaining of any private information without consent or a public interest justification, may present the risk that unacceptable activity will continue.
5.11
116 117 118 119 120
p20, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-2.pdf pp1-2, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJT-Exhibit-281.pdf Part I, Chapter 5 pp1-11, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-CG4.pdf p1, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJT-Exhibit-311.pdf
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There is no indication that the ICO saw itself as playing a direct role in publicity and advice to the media. The letter reaffirmed the ICOs commitment to the s55 campaign and to producing guidance on s55 for journalists.121 5.12 On 25 April 2007, there was a further meeting with Guy Black and colleagues from press representative bodies to discuss stakeholder engagement and the preparation of the guidance. It seems to have been inconclusive. The press representatives saw their role in relation to the guidance as supporting and commenting and they do not envisage a jointly badged product; the ICO undertook to shorten and simplify the latest draft of the s.55 guidance.122 A new version was worked on over the late spring and summer of 2007. Work also began within the ICO on a draft statement of prosecution policy on s55, designed to provide a measure of reassurance to the press as the ICO continued its campaign for custodial penalties over the first half of 2008. An insight into the extent to which Mr Thomas had become very personally engaged in the politics of the passage of the relevant provisions of the Criminal Justice and Immigration Bill can be gained from some of the contemporary documentation which he provided to the Inquiry. In February 2008, the ICO prepared a draft report to Parliament in response to its apprehension that the amendment would be withdrawn by the Government in the face of press-sponsored opposition123 as well as briefing for Ministers and recommendations for Parliamentary handling.124 It also shows Mr Thomas directly lobbying the Government against withdrawal of the amendment in terms which included: (a) (b) (c) (d) (e) urging that withdrawal would damage the reinvigorated credibility and authority of data protection law and the Information Commissioners Office; an intimation that withdrawal would sit strangely with the Governments legislation on identity cards; the anticipation of support in a number of outstanding Select Committee Reports; ripostes to the press campaigning; averring a determination on his own part to stop the pernicious, largely hidden and illegal market in personal data; and a conclusion, with considerable reluctance that he would respond to withdrawal by laying a further specific report before Parliament.125
5.13
(f)
In due course, Mr Thomas met the Prime Minister, preparing for an agreed role in the continuing political negotiations between the Government and the press. He said that the PM started by saying that I had the most difficult job in the country.126 5.14 It is noteworthy that Mr Thomas was placing no (other) operational action by the ICO into this political arena. There was no proffered action plan for the means by which the ICO would structure its priorities and operations so as to ensure that the legislative change would, indeed, stop the trafficking of confidential personal information. The assumption appeared to remain that the change in its own right, and the accompanying publicity for the role of the ICO in promoting that change, would be effective in themselves. An internal note of a
121 122 123 124 125 126
pp1-2, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJT-Exhibit-321.pdf pp1-2, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RTJ-Exhibit-33.pdf pp1-5, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-37-RTJ.pdf pp1-3, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-38-RJT.pdf p3, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJT-Exhibit-39.pdf p1, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJT-Exhibit-40.pdf
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meeting that Mr Thomas had with senior officials from the Ministry of Justice (the successor department to the DCA) is illustrative of the way he was thinking.127 As well as offering an assessment of the party politics of the Bills provisions, he described his likely public reaction to a then-current possibility to change its provisions significantly in favour of the press. It would, he said, be nuclear: I said it would be very noisy and very messy. We will publicly denounce any such attempt. If we lost, we would publish a third report to Parliament, documenting how this state of affairs had come about. 5.15 Suggestions that the press might finally take steps of their own (such as amendment to the Code, training and guidance) to address the extent to which their own culture, practices and ethics were in issue were now dismissed as too little, too late. Only a change in the law would do. To that end, Mr Thomas wrote to selected high profile opposition politicians (including the Conservative and Liberal Democrat leaders) as a warning shot across the bows of those who might be wavering and as an encouragement to potential supporters and planned press releases and a public media initiative. This was not a regulator simply enhancing public debate from an expert point of view. Mr Thomas himself described it as playing hard ball128 or, in other words, full-blooded political campaigning. As noted above, the issue was settled for the time being by the compromise solution of legislation for custodial penalties (along with an improved defence) which was not then and has not since been commenced. At the same time, correspondence continued with industry representatives over the summer of 2008 about the publication of guidance and the promotion of awareness. About the compromise solution on s55, Mr Thomas himself said this:129 This was clearly the end of this particular road. I saw the compromise in half a loaf terms and although very disappointed recognised that it would still serve some deterrent and awareness-raising purpose, though less direct or powerful than originally envisaged. 5.18 Reflecting more generally on his interaction with the PCC, Mr Thomas referred many times to an overall sense of disappointment. This is important commentary and it is worth setting some of them out in full. (a) I think over time I was somewhat disappointed. Although I dont decry everything they did, it fell short of what Id hoped they might be doing.130 (b) The evidence shows that I went back a number of times to the PCC throughout 2005, 2006 and 2007, and tried to keep engage their interest with it. But it is true to say that I thought their response was less strident and I think I used the word disappointing more than once in this context. I thought they could and should have done more.131
127 128
5.16
5.17
pp1-6, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJT-Exhibit-42.pdf p46, line 23, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf 129 p11, para 28, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/First-Witness-Statement-of-RichardThomas-CBE.pdf 130 p117, lines 13-15, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-9-December-2011.pdf 131 p12, lines 17-23, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf
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(c) We thought and had some hopes that the PCC would be a better way of addressing the problem than anything to do with [pur]suing the prosecutions, which we were, at that time, recognising was going to be very expensive and demanding for the office. Now, with hindsight, I think I would have been more aggressive and more assertive with the PCC and with the Code at the outset, and they did disappoint me, as I said, in terms of their response.132 (d) Overall with only the limited progress recorded on page 19 of What Price Privacy Now? I was disappointed by the response from the PCC and the Editors Code of Practice Committee before and during 2006. I had hoped for much stronger and louder condemnation of wholly unacceptable misconduct, an explicit change to the Code, and more focussed guidance. Instead, there seemed to be a Catch-22 view that the conduct was already illegal and that therefore not much if anything could be done by way of self-regulation. The exchanges did lead to guidance (with which the ICO assisted) on data protection law at large and some discussion about possible changes to the Code, but this increasingly seemed directed as much as heading off tougher sentences.133 5.19 Notwithstanding all of this, Mr Thomas made clear his view that his strategy (that is to say, the continuing dialogue with the PCC, publication of his two reports to Parliament, and getting the law changed, despite the non-commencement of the changes) had proved to be very effective, at any rate in relation to the press.134 His grounds for saying so come down to what he claimed was the lack of evidence of criminal conduct within the press postdating 2006:135 I am not saying its been eliminated altogether this is under the surface, clearly but I am saying and my successor has said this to Parliament very recently, in October of this year [2011] that it appears that the press are now behaving themselves in this particular area. 5.20 Such empirical evidence as Mr Thomas offers for this conclusion appears to amount to accepting the word of the industry.136 Without asserting the contrary, absence of evidence that undermines that assertion is not the same as saying that there is evidence that it is so. In the circumstances, it is necessary to consider the claims made by Mr Thomas for his strategy in general and to examine the paths that the ICO chose not to follow in parallel and, from there, to review whether, in more recent times, the press has, in fact, ceased to be any real source of interest to the ICO.
132 133
pp23-24, lines 19-2, Richard Thomas, ibid p14, para 41, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/First-Witness-Statement-of-RichardThomas-CBE.pdf 134 pp69-70, lines 18-10, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Morning-Hearing-9-December-2011.pdf 135 p70, lines 1-7, Richard Thomas, ibid 136 pp14-15, paras 43-46, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/First-Witness-Statementof-Richard-Thomas-CBE.pdf
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Chapter 3 Other pOssible regulatOry OptiOns

1. Criminal proceedings in respect of journalists
1.1 No journalist was ever subject to prosecution as a result of Operation Motorman. Indeed, the ICO never got as far even as interviewing any journalist in connection with examining the possibility of criminal proceedings (however limited the value of doing so might have been). There is considerable dispute as to why that happened. The account provided by Alex Owens is that, within weeks of the commencement of work on the electronic discs of the Motorman material, they were:1 informed that we were not to make contact with any of the newspapers identified and we were not to speak to, let alone, interview any journalists. Despite our protests we were told this was the decision of Richard Thomas and that he would deal with the press involvement by way of the Press Complaints Council. It was at this moment we knew no journalist could or ever would be prosecuted in relation to our investigation. No journalist or Newspaper Group was ever spoken to by anyone from the Information Commissioners Investigations Unit in relation to Operation Motorman. We also now knew that one of the major questions that needed to be asked but could never be asked, let alone answered was Why did you want all these ex-directory / mobile / family and friend telephone numbers and most importantly what were you doing with them? He was, he said, given to understand that the focus of continuing criminal investigation was to be exclusively on the private investigators, the blaggers and the corrupt officials and employees:2 Basically theyd drawn a red line, with the press and the reporters above that line and we dealt with anything below that line. 1.3 He described the way in which the team continued to prepare papers for conspiracy charges in respect of the remaining defendants (specimen charges relating to breach of s55 of the Act), interviewed some 50 to 60 victims and (under caution) all persons suspected of the unlawful obtaining, disclosing or blagging on behalf of Mr Whittamore. This material was passed to the ICO legal department for action and, by February 2004, the work was completed. He described having attended a conference with external counsel, in October 2003, in order to consider the weight of the evidence, and the written advice received that December which supported taking forward the conspiracy charges. counsel also directly addressed the question of criminal proceedings against journalists, advising:3 Having regard to the sustained and serious nature of the journalistic involvement in the overall picture, there can be little doubt that many, perhaps all, of the journalists involved have committed offences.
1
1.2
pp8-9, para 4.9, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-AlexanderOwens1.pdf 2 pp30-31, lines 24-1, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Afternoon-Hearing-30-November-2011.pdf 3 pp32-33, lines 4-22, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Morning-Hearing-5-December-2011.pdf
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The inference, overwhelming, it seems to me, is that several editors must have been well aware of what their staff were up to and therefore party to it. I understand that policy considerations have led to the view that enforcement of some sort rather than prosecution is the way forward in respect of the journalists/newspapers. I understand and sympathise with that approach. This is, I believe, the first occasion upon which the scale of the problem has come to light and it may not be unreasonable to give the Press Complaints Commission the chance to put their house in order. 1.4 On the basis of that policy, counsel considered whether journalists or editors should be cautioned in the light of the evidence of the extent of their involvement and the often unpleasant nature of the offending. He also registered a measure of anxiety about taking forward the conspiracy charges to the exclusion of press defendants:4 Those defending in the prosecution might seek to make capital from the fact that the journalists are not being prosecuted. The judge might also comment on the basis that the journalists are the ones (it seems) who created the demand for this offending. With this in mind, it is a sensible precaution to equip me at some point before trial with the detail of the reasoning not to prosecute. I may need to explain or even defend the decision to the judge. There is no evidence that a detailed statement was in fact produced. 1.5 After completing work on the files, on Mr Owenss account:5 we received no feed back whatsoever as to what action was being taken in relation to the presss involvement. On those occasions we did ask the question the only response we received was that Richard [the Commissioner] was dealing with it. The prosecution was ultimately conducted by the CPS and he describes how the ICO was neither formally aware of or involved in the prosecution of Mr Whittamore; the next they heard, in April 2005, was that he had been conditionally discharged by the Crown Court at Blackfriars. Mr Owens left the ICO at around this time, with, he said, unanswered questions about what if any action had been taken in respect of the press, and why such prosecution as had proceeded seemed to have involved Mr Whittamore but none of the other conspirators. He concluded that something had gone drastically wrong with the prosecution case, producing an outcome which did not begin to do justice to the Motorman material. 6 1.6 On Mr Owenss account, therefore, the suggestion within the Motorman material of prima facie criminality within the press could and should have been taken forward to prosecution. He said we were in a position to prosecute everyone in the chain from the blagger right up to the journalists and possibly even the newspaper groups.7 However, he said that the intervention of a policy decision by Mr Thomas to proceed with the matter himself and exclusively in dialogue with the PCC as a result of, or additionally because of, a reluctance to engage directly in enforcement action in relation to the press prevented this from happening. This account was vigorously disputed by both Mr Aldhouse and Mr Thomas. The evidence of Mr Aldhouse was that there was no policy, or none that he was aware of, of holding back from the prosecution of journalists. He was clear that he was not involved in the operational decision-making at all; however, if he had been asked, he would have considered that there
1.7
4 5
p34, lines 16-24, Alexander Owens,ibid p10, para 4.14, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-AlexanderOwens1.pdf 6 pp11-12, paras 4.18-4.19, Alexander Owens, ibid 7 p7, para 4.5, Alexander Owens, ibid
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Chapter 3 | Other Possible Regulatory Options
was indeed a case for taking the involvement of journalists and newspapers in criminal behaviour further. Nor would he have thought resourcing problems a conclusive argument against doing so: he thought that it would have been possible to have discussed the possibility of supplementary funding with the sponsoring government department. But he did not apply his mind to such considerations at the time; it was not his place to do so. He was aware of a measure of frustration in the investigations team that no action had been taken in relation to the press, and of some discussion about the disappointing criminal process in the office, but could recall no detail.8 1.8 Mr Thomas also denied any positive policy decision or instruction being given not to proceed with criminal investigations into press conduct. This denial was emphatic and can be enumerated: (a) there was no such policy decision, certainly not at the early stage;9 (b) [it] is possible that Mr Owens has somehow confused or conflated all the dates and interpreted that [Mr Thomas going to the PCC] as some sort of policy or some sort of instruction, but that was not the case;10 (c) [if] there was a policy, it was not one which I had any hand in, one which I knew about, which I made or which I was told about;11 (d) as far as Im aware, there was absolutely no such policy and I cant think why there would have been such a policy;12 (e) what Im trying to say and I hope Im coming across very clearly is that there was no policy from the outset that we werent going to go against the press;13 (f) Q: Your evidence is that the policy steer didnt come from you? A: Absolutely not;14 (g) there is clear evidence that there was not a policy conclusion even at that point [the approach to the PCC];15 (h) I dont accept that there was a policy decision. I dont accept that we abandoned the possibility of prosecuting journalists.16 1.9 Indeed, Mr Thomas was insistent in his evidence that there was no conscious decision at all not to prosecute journalists.17 He explained that in two different ways although, on the face of it, these are not entirely straightforward to reconcile. He said both that he assumed that in fact the office was making progress with the prosecution of journalists as they would with any other criminal investigation,18 and also that there was an active plan to keep the option of prosecution alive but to wait and see first how the conspiracy prosecutions being undertaken by the CPS fared, and in due course, if all went well, to activate them.19
pp44-52, Francis Aldhouse, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-MorningHearing-5-December-2011.pdf 9 p37, lines 23-24, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-9-December-2011.pdf 10 p38, lines 3-6, Richard Thomas, ibid 11 p47, lines 14-16, Richard Thomas, ibid 12 p54, lines 16-18, Richard Thomas, ibid 13 p55, lines 3-6, Richard Thomas, ibid 14 p57, lines 14-16, Richard Thomas, ibid 15 p60, lines 23-25, Richard Thomas, ibid 16 p74, lines 19-21, Richard Thomas, ibid 17 p70, lines 21-22, Richard Thomas, ibid 18 p50, lines 17-23, Richard Thomas, ibid 19 pp46-47, 70, lines 24-2, 8-25, Richard Thomas, ibid
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1.10
Taking the second of these first, the problem with any wait and see strategy was articulated by Mr Owens. He described his response to the way in which the discontinuance of the criminal proceedings for conspiracy was described in What Price Privacy? in the following terms:20 This was a great disappointment to the ICO, especially at it seemed to underplay the seriousness of section 55 offences. It also meant that it was not in the public interest to proceed with the ICOs own prosecutions, nor could the Information Commissioner contemplate bringing prosecutions against the journalists or others to whom confidential information had been supplied.
1.11
As Mr Owens explained:21 It may be correct in relation to the others, you know, the blaggers and the thing, but you could never go back after three years and contemplate prosecuting journalists. Theyd never even been investigated. And I theres enough legal people here to know if I I kept evidence you cant put if you have a conspiracy, you cant put five people on the back-burner and wait and see how you got on with the same five people in the front thats getting prosecuted, because you got a good result, right, well go and prosecute them as well. Well, theyre all part of one conspiracy. You either investigate them all, or those five you have to say were not going to investigate them which means were not going to prosecute them. I dont know whether that would be - is the correct word abuse of the justice system?
1.12
In my judgment, as a matter of criminal process, the proposition that the journalists were not investigated because there was a deliberate strategy which had been thought through (in the light of evidence that was known about and understood) simply to see how the prosecutions against the middle men went before proceeding against the press is neither credible nor sustainable. In any event, there is no contemporaneous evidence that this was indeed the strategy. This is very different from a decision not to proceed for good operational reasons, followed by a later re-evaluation. The other argument advanced by Mr Thomas was that there was indeed an active policy to pursue criminal inquiries into the activities of the press, but that they ran their operational course to no effect. He suggested a number of operational reasons for the ICO not, in the end, proceeding with criminal proceedings in respect of the press. They included: (a) (b) the inevitability that severe and disproportionate logistical difficulties would be faced, including the commitment of significant resources;22 legal uncertainty about the difficulty of proving procuring of disclosure by the press (which would require establishing knowledge or recklessness about the lack of the individuals consent) and about the possible deployment of public interest defences by journalists;23
1.13
p28, para 6.8, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-1.pdf pp38-39, lines 13-39, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Transcript-of-Afternoon-Hearing-30-November-2011.pdf 22 pp54-55, lines 25-6, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Morning-Hearing-9-December-2011.pdf; p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Fourth-Witness-Statement-of-Richard-Thomas-CBE.pdf 23 p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Second-Witness-Statement-of-RichardThomas-CBE1.pdf; p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Third-Witness-Statement-ofRichard-Thomas-CBE1.pdf
21
20
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(c) (d)
an understanding that Mr Owenss extended sick leave and anxieties about his reliability as a witness, influencing legal advice to withdraw from prosecution action;24 a strategic view that it would be preferable to defer conclusively to the CPS prosecution of the corruption cases, giving precedence to the corruption proceedings because they were more serious and carried higher sentence maxima than the cases which the ICO could prosecute;25 a strategic preference for proceeding against the middle-men, at the heart of the organised trade in confidential personal information;26 the perversity of the outcome in the Whittamore prosecution: the conditional discharge was a reason any further prosecutions would not be in the public interest, and in particular completely extinguished any possibility whatsoever of prosecuting journalists;27 and a sense that any formal action, particularly a prosecution, was likely to be, if you like, that much more difficult because there will be less sympathy for the celebrity. This is a jury point, perhaps, about the unattractiveness of bringing cases in respect of celebrity victims who might, however unfairly, be considered to have compromised their own data protection entitlements.28
(e) (f)
(g)
1.14
The difficulty with any or all of these explanations is that, on Mr Thomass own account, the Inquiry saw no evidence that at the time the ICO went through a strategic decision-making process which actively considered any of these points and reached a conclusion on them. There clearly would have been the need for major decisions to have been taken one way or the other about the allocation of resources, significant operational planning and close liaison with the police and the CPS. There is no evidence that any of this happened. On the contrary, the best evidence available to the Inquiry suggests that: (a) (b) (c) (d) there was prima facie evidence of criminal behaviour by journalists; this was investigated up to a point within the ICO by paper analysis and by interviewing a selected group of victims; external counsel encouraged the view that the evidence of criminal conduct by journalists was persuasive and that there were merits in taking the matter further; but the matter was not taken any further by the ICO in relation to data protection offences, not even to the stage of approaching a single journalist either to be interviewed or for a statement.
p2, ibid p70, lines 13-25, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Morning-Hearing-9-December-2011.pdf; p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Second-Witness-Statement-of-Richard-Thomas-CBE1.pdf; p1, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/12/Third-Witness-Statement-of-Richard-Thomas-CBE1.pdf; p2, http://www.levesoninquiry.org.uk/wpcontent/uploads/2011/12/Fourth-Witness-Statement-of-Richard-Thomas-CBE.pdf 26 p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Second-Witness-Statement-of-RichardThomas-CBE1.pdf; p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Third-Witness-Statement-ofRichard-Thomas-CBE1.pdf 27 pp73-76, lines 24-9, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Morning-Hearing-9-December-2011.pdf; pp3-4, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Second-Witness-Statement-of-Richard-Thomas-CBE1.pdf; p2, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/12/Third-Witness-Statement-of-Richard-Thomas-CBE1.pdf; p2, http://www.levesoninquiry.org.uk/wpcontent/uploads/2011/12/Fourth-Witness-Statement-of-Richard-Thomas-CBE.pdf 28 pp73-74, lines 20-22, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Afternoon-Hearing-9-December-2011.pdf
25
24
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1.15
Mr Thomas was either unaware that the matter was not proceeding within his office, or aware of it without challenging that state of affairs. Either is problematic. The first suggests a disconnection from one of the biggest operational cases the ICO ever dealt with to a degree which is difficult to understand. After all, this was a case on which he himself spent many years pursuing at a strategic and political level. There was this exchange:29 Q: When the prosecution started, there were no journalists there. Did you not think about that? A: I wasnt involved in these meetings. Q: No not the meetings, but you were alert as to what was going on with the prosecution process? A. Only in very general terms and I have no recollection. At the very least, the second explanation raises questions about the extent of the interest that Mr Thomas had in this aspect of the enforcement of the data protection regime notwithstanding the extent of the abuse revealed by Operation Motorman.
1.16
This important matter was directly put in this way by Robert Jay QC to Mr Thomas when he gave evidence:30 May I try and sum up the position in this way? Given two facts which we know, Mr Thomas the first fact is that the journalists were never interviewed by your office and the second fact is that such an interview would be a sine qua non to a prosecution, out of fairness to the journalists on the one hand, in order to obtain further evidence does it not follow that either there was a policy decision not to pursue that course or, alternatively, there were operational failures or decisions by the investigators not to carry out an elementary step, namely to interview?
1.17
Mr Thomas challenged that dichotomy, but only by way of suggesting that an alternative was the wait and see policy which is not, itself, obviously compatible with an omission to interview any journalist in a timely fashion. Mr Jay therefore put the analysis to him even more directly:31 Q. So at the moment I am thrashing around mentally to see what other alternative there might be beyond a policy decision on the one hand or incompetence in your investigation officers on the other. A. Well, if you want to put it in those terms, I have to put it to the latter, but I am absolutely you know, absolutely clear because I wouldnt have done any of the things I had done right through 2005, 2006, 2007 if I had thought at any time that I or anybody else had said: Back off the journalists.
1.18
This is an answer which has difficulties at many levels and, in fairness to Mr Thomas, may not bear too close an analysis. As between a policy or an operational failure there are perhaps levels of intermediate gradation. It is, however, necessary to take stock of the issue of nonprosecution of journalists by the ICO.
p53, lines 5-12, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-9-December-2011.pdf 30 p47, lines 3-13, Richard Thomas, ibid 31 pp48-49, lines 19-3, Richard Thomas, ibid
29
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1.19
In the first place, it does not seem that there need have been any reason from the outset for the ICO not to have proceeded down the path towards active pursuit of prosecution. Mr Jay put it this way:32 But if all one needed to do: Lets cherry pick the best cases of illegality. The friends and family cases, the one or two police national computer cases. Well interview the journalists in those cases. We might interview the editors. That is a fairly narrow exercise. You can then assess how strong the case is. After all, if the evidence is strong enough, you might even get guilty pleas. Who knows?
1.20
A lot of evidence was available, and a good deal of work was done in the early stages. Mr Owens took the point that it might not have required a huge amount of delving and interrogation by him in relation to the relevant journalists to get the answers he needed to the questions in his mind (which principally concerned why they wanted the material). Some might have declined to answer; of those who answered, some answers might have incriminated journalists, others might have exonerated them.33 But the questions were never asked. It would not have been operationally impossible, and ought perhaps to have been operationally rather attractive, to have proceeded in the way Mr Jay hypothesised. But there was no indication that this was ever contemplated, far less attempted. In the second place, although I recognise that the conditional discharge imposed on Mr Whittamore meant that there was little practical prospect of resuming criminal investigations in relation to the press for the reasons outlined above, such an outcome was hardly possible to foresee. The record that the ICO made of the hearing before His Honour Judge Samuels QC in the Crown Court at Blackfriars in April 2005 (including his sentencing remarks)34 does not on the face of it even support the proposition that the prosecution of journalists was out of the question following the conditional discharge of Mr Whittamore. From this note, it is possible to derive the following propositions: (a) The sentence in this case was clearly to a degree based on the particular position of a co-defendant (previously sentenced in ignorance of this prosecution) and the unchallenged personal circumstances of Mr Whittamore who was described as of previous good character; in a state of depression; reclusive; probably a broken man of limited means, unemployed and effectively unemployable in his previous line of work. There were procedural considerations militating strongly in favour of a swift disposal of the case. There is no indication at all that the sentencing judge considered the offending behaviour not to be serious in nature; on the contrary, he observed: The vice of the primary conspiracy was to make known to the press information which on any view ought to have been confidential I refer to the vice and I do so again as a warning to others; others cannot expect leniency as seen today.
1.21
1.22
(b) (c)
1.23
To be fair to Mr Thomas and the ICO, it is right to record that there were some issues about the nature and extent of the co-operation between the ICO on the one hand and the police on the other. Mr Owens said of the prosecution:35
p56, lines 8-16, Richard Thomas, ibid pp43-44, lines 15-2, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Afternoon-Hearing-30-November-2011.pdf 34 pp1-22, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-RJT-49.pdf 35 pp10-11, para 4.16, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-ofAlexander-Owens1.pdf
33
32
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We had never been advised that the matter was due before the courts. We were never given the opportunity to attend even though we had been the investigating officers and were never given any details of what had happened in relation to all the other defendants we had anticipated would be jointly charged with Whittamore for conspiracy we did hear that there had been some conflict between the ICO legal team and the Crown Prosecution Service/Metropolitan Police 1.24 Mr Thomas put the matter in this way:36 I also understand that there was a feeling that the prosecutor had not accurately conveyed some of the material to the court vis-a-vis the journalistic aspect, and I cant turn it up straight away now, but some of the notes youve had from the ICOs legal file indicated that the barrister for the CPS had not perhaps conveyed the full picture. Wed sort of if you like, were not actively engaged or involved in that. 1.25 It is neither possible nor necessary to reach any conclusion about the extent to which a failure of liaison impacted on this prosecution, although a close and mutually supportive relationship between ICO, police and CPS in this type of case is clearly important. Putting to one side the issues which flow from a consideration of the result of the prosecution, and reverting to the initial decisions, the conflict between the investigator, Mr Owens, and Mr Thomas remains real. Mr Owens bluntly put the matter in this way:37 In conclusion I would summarize by saying it is my opinion that: ICOs decision not to investigate any journalist in relation to Operation Motorman was a wrong decision. This decision was certainly not based on any advice given by counsel or on any lack of evidence, as ICO would have everyone believe. The decision had been made long before the involvement of any Counsel or opinions being requested and there was overwhelming evidence that many of the journalists did know or at least should have known the information they were requesting could only be obtained illegally and what they were requesting was not for a purpose which would carry any form of public interest defence.
1.26
The decision not to pursue any journalist was based solely on fear - fear of the power, wealth and influence of the Press and the fear of the backlash that could follow if the press turned against ICO. The publication in May 2006 of What price privacy was no more than an attempt to lock the stable door after the horse had bolted in an effort to cover up the fact that ICO had failed in its duty to conduct a full and proper investigation into the conduct of journalists at the time when they could and should have. Throughout the whole of the time the Motorman investigation was on going there was never any mention or suggestion of any report being commissioned for Parliament. I feel it was no coincidence that this report was not published until May 2006, only a few weeks before the Mulcaire scandal broke. It is my belief that when ICO became aware that the Metropolitan Police were conducting yet another investigation involving more
p83, lines 18-25, http://www. levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-morning-Hearing-9December-2011.pdf 37 pp18-19, para 5.18, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-ofAlexander-Owens1.pdf
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wrong doings by the Press, they decided to pre-empt and deflect any criticism which was bound to be directed towards them in relation to their lack of action against the Press in Operation Motorman. All the evidence published in this report had been gathered and had been available since March 2003, so if as David Smith stated, again in the Panorama Report, ICO wanted to send an effective and final warning then why did it take over three years to prepare it, and not publish it until 13 months after the prosecution against Whittamore had concluded. 1.27 These are stark allegations, which Mr Thomas firmly invited the Inquiry to reject. One of his reasons was that Mr Owens evidence must be regarded as unreliable as he had parted from the ICO on unhappy terms and that must be taken to have clouded his judgment on this matter. However, insofar as this Report comes to any conclusions on these issues it does so on their own merits rather than on the basis of speculation by Mr Owens on matters not within his personal knowledge. On the other hand there is no reason to doubt that Mr Owens evidence was, at least, an authentic description of his own perspective. Furthermore, it cannot be overlooked that, by their own accounts, the senior management of the ICO had placed Mr Owens and his immediate superior in a position in which their perspectives were operationally determinative: it was a matter for them. I start from this proposition. The evidential treasure trove of the Motorman material, the questions of public interest and of the integrity of the data protection regime, the seriousness of the breaches of trust evidently involved and the potential harm occasioned to a very large number of individuals all make it very hard to reconcile the evident lack of analysis or a discernible action plan in the ICO for consideration of criminal investigations into press misconduct. Whether, in the end, the decision was taken to pursue those investigations or not, the matter should have been consciously and conscientiously considered and decided upon from an operational and strategic point of view. The decisions should have been reasoned and recorded. The evidence is that this did not happen. It is possible (although I do not say more) that a significant opportunity was thereby lost to challenge and check elements in the culture, practices and ethics of the press that were insufficiently mindful of the law, the rights and entitlements of individuals, the public interest and the obligations of good practice. Before reaching any firm conclusions, however, it is also necessary to provide the context of the alternatives available to the ICO, the choices made and the outcomes in practice. Mr Thomas said:38 its important to record that prosecution is not the only way to deal with a particular problem. Operation Motorman was clear evidence of a problem in the culture, practices and ethics of the press. It was not dealt with by criminal investigation and prosecution. The ICO was, on its own account, not primarily a prosecuting authority; it was a statutory regulator, provided with a range of standard regulatory powers and had a range of other powers and operational choices available. 1.30 Mr Thomas shared with the Inquiry the thought that there might even have been a causative relationship between his understanding from his staff that the prosecution of journalists was not a plausible option, and his decision to take the matter to the PCC. He accepted that thought was to a degree ex post facto rationalisation, and it is not certain from the chronology
1.28
1.29
p70, lines 8-10, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-9-December-2011.pdf
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that it can have been the case (he also said elsewhere that the reason he refused to go into operational detail with the PCC was that the prosecutions were still under way.)39 But, in the light of the eclipse of the prosecution option, the way he put the position of the ICO in relation to what the evidence discovered in Operation Motorman revealed about the culture, practices and ethics of the press must surely be regarded as authentic:40 We cant leave it there. We must do something. The something in Mr Thomass mind was his twin-track political strategy. But the question also has powerful operational resonance. If the ICO was not to tackle the press by the route of criminal investigation, the something else must be considered.
2. the use of regulatory powers

2.1 One of the striking features of the narrative that started with Operation Motorman is that neither during the criminal investigation nor at any time thereafter does it appear that there was any evaluation of alternative operational steps which remained available. On the contrary, the ICO appears to have put faith only in prosecution and the twin track strategy championed personally by Mr Thomas. However, the treasure trove of material gave rise to a number of important operational issues and permitted a variety of regulatory responses. There was certainly the question of future deterrence, which featured so prominently in Mr Thomas campaign. There was also the wider operational question already noted: it was unlikely that Mr Whittamore was the sole operator in this evidently lucrative market, so how big, in fact, was the problem? This was something to which only the press, as drivers of the market as evidenced by the Motorman material, were likely to be able to provide a clear answer. There were issues at a more specific level as well. The Motorman material suggested that the press was in possession of a quantity of material in breach of the data protection principles and of the rights of the individuals involved. If their acquisition of that material was unlawful, then their continuing holding and use of the material was likely to be unlawful and unfair also. Motorman raised questions not merely of past illegality (obtaining the information) but of present and continuing illegality. That, indeed, was the distinguishing feature of the role of the press in the narrative. The blaggers and the corrupt officials and employees could be identified and their practices terminated. But, unless they had taken active steps (which might include destruction) in relation to the personal information, the press were likely to be persisting in conduct unlawful under the data protection regime on a daily basis. Even holding information unlawfully and unfairly is a potential breach, whether or not accompanied by further breaches, intended breaches, or indeed any further plans or actions at all. Every day which passed raised acute practical and operational issues in relation to the press. How much personal information were they holding unlawfully, and how should the situation be remedied and lawfulness assured? These issues were live and acute, and not even prosecution of the press would have been a complete answer to them. Although criminal investigation would have got to the bottom of the specimen cases pursued and no doubt would have had a salutary chilling effect of some sort on unlawful practice, it could never have been the thorough-going systemic look at the Motorman material in the hands of the press, nor the systemic rectification of any continuing unlawfulness, which the evidence required.
2.2
2.3
2.4
39 40
p119, lines 5-6, Richard Thomas, ibid p62, lines 15-16, Richard Thomas, ibid
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2.5
The seizure of the Motorman material was, in other words, a very major case of the sort which statutory regulators are created (and given practical powers) to deal with. The press were under continuing legal obligations to consider what steps were needed to clean up their own operations from the products of the unlawful trade in personal information. Even if defences may have been available in some cases to criminal charges, a significant number of questions would have been outstanding as to the extent to which the press had complied with their civil legal obligations and with standards of good practice under the data protection regime. It is therefore significant that Mr Thomas confirmed that the ICO did not, at any point, come close to considering the use of the civil enforcement powers at their disposal either to seek further information from the press or to require them to comply with the data protection regime. Evidently, some sort of passing thought was given to it but nothing materialised. That was for two principal reasons. The first was that these powers were, in any event, rarely used. The second was that everybody knew that to a very large extent the powers of the office were very constrained indeed when it came to dealing with the media.41 It is evident, as considered at the outset of this Part of the Report, that there were questions about the operational experience in the ICO at the time of the deployment of its formal regulatory powers, and particularly so in relation to the press. That is further considered below, as is the question whether the investigative and enforcement powers of the ICO in relation to the press were, indeed, as a matter of law insufficient to allow the questions raised for the press by Motorman to be effectively tackled by the regulator. At this stage, it is sufficient to articulate the following concerns: (a) (b) The Inquiry saw no evidence that any of these matters were the subject of serious consideration within the ICO. The Inquiry received a quantity of evidence as to how far the Motorman material could be considered prima facie evidence of criminality on the part of journalists (not least because of the question of intent), but it is not credible to argue otherwise than that it was prima facie evidence of extensive unlawful and unethical data protection practice. Whether the press would have had an answer to that prima facie unlawfulness certainly fell to be considered and, to such extent as it did, so the evidence is that the ICO was of the view that that was highly unlikely to be the case.42 The substantive exemptions from the principles and rights of the data protection regime in favour of the press may have been extensive, but they were not limitless. It was not open to the ICO on the evidence of the Motorman material to conclude with any confidence that the press had been acting within its rights so far as personal information privacy was concerned. The procedural hurdles standing in the way of formal proceedings by the ICO against the press may have been daunting but it is not credible that Parliament intended them to be insuperable. If ever an operational data protection issue arose where active contemplation of regulatory action in respect of the press presented itself (I put it no higher), Motorman was surely that case.
2.6
2.7
2.8
(c)
(d)
pp25, lines 20-23, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf 42 That much is apparent from the way in which the ICO analysed the Motorman entries into those positively known to constitute a breach of the DPA 1998 [5,025], those considered to be probable illicit transactions [6,330] and the balance lacking sufficient identification or information to determine whether they represent illicit transactions or otherwise [1988]: pp1-2, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fifth-WitnessStatement-of-Richard-Thomas-CBE.pdf
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(e)
Not only was there no evidence that serious operational attention was given to these issues, either at the time or at any point since, it is noteworthy that at no stage since the Motorman material was found has the ICO raised as an issue the sufficiency of its powers to tackle breach of the data protection regime by the press.
2.9
In relation to this last point, at no point during his long campaign on custodial penalties did Mr Thomas seek reform of the provisions applying the civil law to the press. The present Information Commissioner, Christopher Graham, does not do so today. That left the Inquiry with the question of whether the powers available to the ICO were in fact adequate for the task of pursuing with the press the continuing operational issues raised by Motorman, but were neglected by the ICO; or whether they were inadequate, and the ICO has chosen, for whatever reason, not to draw attention to their inadequacy. Both Commissioners have strongly argued on these points that they have other priorities and that, whatever the legal position, it would not have been right for them to place the practices of the press among those priorities. I reflect on that in due course. Not for the last time in this Report, a haunting question asked by Mr Owens arises. He described himself musing on the operational implications for the press of the Motorman material in this way:43 Its our job to take them or indeed anyone else on, thats what we are paid to do. If we do not do it, then who does? The question is even more pertinent in relation to civil law enforcement under the data protection regime than it was to the question of prosecution. The CPS can always take prosecution decisions (including in relation to s55) and consider the matter from the perspective of the totality of any apparent criminality. Only the ICO is able to take regulatory enforcement action. If anything, the pertinence of this question has only increased over time.
2.10
2.11
None of this is to suggest that the ICO should have had recourse to testing its formal investigatory and enforcement powers in practice in this case, but simply that it might have been expected to give the question urgent and detailed consideration. No regulator would expect as a matter of routine to make the formal assertion of its powers its first reaction, although in an egregious or systemic case (and Motorman was surely such a case) that may be appropriate. To the extent that criminal proceedings remained in active contemplation there would in any event have been a need for detailed consideration of the potential interactions between criminal and civil investigations. However, if not formal action, possibly as a prelude to the active consideration of formal action, the operational imperative to do something about the Motorman problem with the press might at least have been expected to direct the mind of the ICO to the possible effectiveness of a range of informal steps.
3. engagement with the industry: guidance and promoting good practice

3.1 Under the DPA, the ICO has a general legal obligation to:44 promote the following of good practice by data controllers and, in particular, so to perform his functions under this Act as to promote the observance of the requirements of this Act by data controllers.
p7, para 4.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-AlexanderOwens1.pdf 44 http://www.legislation.gov.uk/ukpga/1998/29/section/51
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The press organisations involved in the Motorman case were undoubtedly data controllers for these purposes and good practice can refer to standards over and above the strict legal requirements of the data protection regime. Therefore, even assuming that the ICO had considered that, in the case of the press, its own powers were too restricted or restrictive for formal regulatory action to be the best way to proceed, its duty to promote good practice would still have been engaged. Mr Thomas described his entire twin-track strategy to have been undertaken in furtherance of his duty to promote good practice but the duty was also relevant to the operational imperative. That imperative was to tackle the questions raised by the fact that, so far as the ICO had reason to believe, the Motorman material remained in the hands of the press in circumstances which, at the very least, raised specific and systemic questions of good practice, standards and ethics. 3.2 The first recourse of a regulator is not usually to formal proceedings. In those circumstances, it is more usual to make informal contact in order to follow up an apparent problem (which is any practice falling short of desirable standards), hear the other side of the case, and seek to engage in a detailed dialogue about the nature and extent of the problem and the steps which might be taken to address it satisfactorily. At the very least, the Motorman material revealed to the ICO that the press had engaged in questionable practice in relation to individuals information, that it remained in possession of that information in circumstances which, again at the very least, raised questions about their conformity with good practice, and that good practice would require some contemplation from the individuals point of view as to whether steps were needed to improve the situation. But the Inquiry saw no evidence that any of these matters, any informal approach to the press data controllers or any assessment of the immediate practical steps suggested by good practice, were actively contemplated let alone put into effect. Mr Thomas said that he did, indeed, have it in mind to write to the various journalists and editors involved, drawing attention to the fact that they were incredibly lucky not to have been prosecuted (or, it might have been added, not to have been made the subject of formal investigatory or regulatory action).45 Pressed as to why no attempt was in fact ever made to engage with the individual newspapers, his answer was that, in going to the PCC, he had dealt with them all collectively.46 Apart from the identified concern that this suggests a lack of understanding of the role and responsibilities of the PCC, it implies that these were mutually exclusive approaches. It also suggests that there was no imperative to deal with the problem in the short term and in a practical way: that is to say, to address the issue not just of the press ceasing to commission further unlawful trade in personal information but also of what it was doing with the information already in its possession as a result of that trade. As noted above, the PCC itself urged Mr Thomas to engage directly with the industry and, in any event, showed little appetite to take the responsibility that Mr Thomas wished to pass on. It is also significant that there seems to have been no attempt to engage directly with the press (even indirectly, through the PCC) in the run up to the publication of What Price Privacy?47 That report was of course conceived principally from the perspective of a policy decision to the effect that the introduction of custodial penalties for s55 was to be the principal means of impacting on the unlawful trade in personal data. Considered, however, from an operational point of view, the lack of engagement with the press or any part of it on either the text or the
3.3
3.4
p72, lines 2-11, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf 46 pp110-111, lines 23-4, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Morning-Hearing-9-December-2011.pdf 47 pp111-112, lines 14-7, Richard Thomas, ibid
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data tables is both striking and surprising. It afforded the industry no possibility of verifying the data (the consequences of which, in at least one case, are considered further below). It also missed what might very well have been the prime opportunity to discuss with the industry what practical lessons could be learned and what steps they ought to have taken or be taking not only to remedy any persistent problems, but also to secure good practice for the future. A not insignificant carrot might have been a willingness to include an account on that exchange in the report to Parliament, thereby demonstrating that the press were taking the issue seriously. 3.5 Mr Thomas, however, said that he simply relied on the publications of his reports to Parliament to engender awareness amongst proprietors and editors at the national level of the ICOs concerns.48 In relation to What Price Privacy? he reported:49 I would say that was promoting good practice, and sending it to a hundred organisations with specific personalised letters saying this is not acceptable I would say this is very much promoting good practice. 3.6 In reality, however, this was all rather late. It was three years after the event by which time the audit trail in relation to the Motorman material in the hands of the press was likely to have gone very cold indeed. Three aspects of the conduct of the ICO are difficult to understand. The first is that if it was possible to prepare a large individual awareness exercise, complete with personalised letters in order to draw attention to What Price Privacy?, and if that was seen as an effective way to discharge the duty of the ICO to promote good practice, there is no reason why similar attempts could not have been made at the time to contact the industry directly. Second, while making every allowance for the decision to approach the PCC as a form of collective engagement with the press, the ICO did not recommend specific good practice steps to be promulgated to the industry as well as general condemnation. Third, when it was becoming increasingly clear that the PCC was not going to act as an effective interlocutor with the industry on behalf of the ICOs operational concerns, even then, the ICO did not seek to communicate directly with the industry itself. Even after the publication of What Price Privacy? the process of preparing and issuing effective good practice guidance to the press was faltering and inconclusive. Of the document eventually produced, Mr Thomas said:50 It was a useful guidance note but I suppose I was a little concerned that it buried the section 55 warnings into a wider context of talking about the Data Protection Act and its application to the media more generally, and I think even now I would say that it was a shame it didnt just focus on section 55 in the way that our own note, which we produced, I think, in 2006 or 2007, what we call a good practice note, that was a very, very clear one and a half pager as to how the press should take seriously section 55. 3.8 In reality, the ICO did not direct the press towards the practical steps it needed to take, not least in the maintenance of proper audit trails in relation to its handling of personal information (especially, as Mr Thomas had noted, in the event of an intention to rely on the public interest as a defence to s55). Rather, the process had become absorbed into managing the defensive stance of the press in response to the s55 campaign. A part of that response was the alleged discomfort of the press with applying legal public interest tests, notwithstanding the obvious centrality of judgments on the public interest to the routine
3.7
p51, lines 10-12, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf 49 p27, lines 14-21, Richard Thomas, ibid 50 p14, lines 14-23, Richard Thomas, ibid
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standards and ethics issues with which the press is inevitably concerned on a day to day basis. Public interest judgements were also the daily bread and butter of the FOI regime which also fell within the ICOs regulatory remit and on which extensive and detailed guidance has been published. Rather than pursuing the idea that the PCC would guide the press on this matter operationally, along with the other possible lines of approach, it was eminently feasible for the ICO simply to grip the issue both efficiently and expeditiously. 3.9 Furthermore, the ICO was under a continuing legal obligation to promote good practice, including by considering the issue of guidance, either specific or general. It is not easy to understand why the ICO persisted for years in trying to force the hand of the PCC to issue guidance when it had statutory powers of its own to do so; moreover, these were statutory powers which it was under a legal obligation to keep under constant review. Having diagnosed a need for guidance, and in the absence of a satisfactory and timely response from the PCC, it could have propelled the process forward with a comprehensive draft of its own, if necessary in direct consultation with the industry. There is no evidence that it contemplated doing so. As noted above, one of the issues of contention between the ICO and the PCC over the course of its dialogue was the demand of the PCC for access to the detail of the Motorman material before it would consider itself able to take direct action on any matter with the press (this was Sir Christopher Meyers request for beef). The DPA includes a number of provisions inhibiting disclosure by the ICO of confidential material it has acquired in the exercise of its functions;51 this is a very standard feature of regulatory regimes. Those provisions would have inhibited the public disclosure of the Motorman material, and were an operative reason for the presentation of the material in the What Price Privacy? reports in summarised form only. Those provisions might also have rightly restrained the ICO from detailed disclosure to the PCC. But they would not have restrained discussion by the ICO of the relevant parts of the Motorman material with the individual press organisations (data controllers) concerned for the purposes of furthering their compliance with the legal or good practice requirements of the regime. At the point at which Mr Thomas declined to share the detail of the Motorman material with the PCC, he effectively acknowledged that detailed and specific discussions could only ever have taken place directly between the ICO and the individual press organisations. On his own account, Mr Thomas was emphatic about the lack of engagement directly by the ICO with the press. When giving evidence, he told the Inquiry that I dont think Ive ever had a conversation to this day with an editor52 (although when prompted he recalled that he had, of course, spoken to editors, including Mr Dacre, in the context of his interactions with the Editors Code Committee). But again, it was only the ICO that could have conversations with individual press organisations about their continued retention of the Motorman material; there was nobody else.
3.10
3.11
4. Engagement with victims

4.1 The Motorman material was evidence in the hands of the ICO that a very large number of people appeared to have been the victims of unlawful use of their personal information. Those individuals had rights and entitlements under the DPA, and in the civil law more generally, including rights in relation to confidence and privacy. The data protection regime, in common with very many other regulatory regimes, provides for two routes of law enforcement. These are the exercise of investigatory and enforcement powers by the regulator and the availability of rights of action by individuals for the enforcement of the law in their own cases.
http://www.legislation.gov.uk/ukpga/1998/29/section/59 p112, lines 11-12, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-9-December-2011.pdf

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4.2
One of the defining features of contravention of information privacy law is that, characteristically, the victim may not be aware that it has happened or, if aware, may have no means to find out how it happened, who was responsible, or indeed to move beyond the realms of speculation.53 This feature was both obvious and commonplace when consideration was directed to the Motorman material, and was equally a very real concern which was underlined in the evidence of a number of Core Participants who complain about press intrusion.54 The ignorance of victims of the nature, or even existence, of the wrong done to them is, indeed, a principal reason for the existence of a regulatory authority with investigative legal powers. The two approaches to law enforcement are not, of course, mutually exclusive. Christopher Graham expressed the connection by describing what he saw as a core element of the ICOs job: to arm the consumer, to educate and empower the consumer to exercise their information rights and to help them to assert them.55 That role operates at both the general, educative level, and at the level of assisting individuals who have concerns, including for example by helping them to make subject access requests.56 Where the ICO comes upon evidence of unlawful activity of which the victim is not aware, it has some important operational choices to make. Matters to be taken into account will include the quality of the evidence, the nature and extent of the apparent breach, whether or not it is continuing, the practicalities of contacting victims, and so on. These were considerations which were brought to bear, for example, in the operation the ICO undertook in the wake of the loss by HMRC in late 2007 of discs containing large quantities of personal information relating to the recipients of child benefit. In part, at least, that was for the purposes of alerting the victims to the potential need to take security measures against the possibility of the information falling into the wrong hands and being used for fraudulent or other unlawful purposes in the future. No such exercise appears to have been contemplated in the Motorman case, a matter which was directly raised in the Inquiry by potentially affected Core Participants. As noted above, Mr Owens team did approach some 30 to 40 victims for the purposes of their criminal investigation, and obtained witness statements. But engaging victims on the footing of a criminal investigation is a specific and limited kind of exercise and there is no evidence that the ICO engaged even those victims it approached for any broader purpose. Aside from the primacy given to the criminal investigation at the time, Mr Thomas suggested that there were two principal reasons for failing to engage with the victims. The first was logistics, given the large number involved. The second was considerations of privacy, on the basis that alerting victims could raise questions about possible further invasions of their privacy, as might occur, for example, if third parties (including the victims family members) came to be aware of information about them which the victim had been at pains to conceal.57 Neither of these explanations fully accounts for the failure to take any operational hold of the situation affecting the Motorman victims, although both concerns are certainly important and relevant. The former is a strategic challenge of a sort which the ICO has addressed on other occasions. The latter is a matter of process, and of a nature which the ICO was wellplaced to address. Neither points to complete inaction; neither would be insuperable given case by case consideration.
4.3
4.4
4.5
4.6
This feature is noted and explained in Part F, Chapter 6 ibid 55 p15, lines 13-15, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-26-January-2012.pdf 56 p17, lines 14-23, Christopher Graham, ibid 57 pp1-2, lines 9-11, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf
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4.7
The consequences of the failure to alert the victims were much debated before the Inquiry. The ICO had placed considerable faith in the success of the political measures they took in response to Motorman to ensure that there was an effective stop to further victimisation for the future. It is, however, hard to avoid the conclusion that the position from the point of view of the victims was insufficiently taken into account, not merely operationally for the ICO, but also as a matter of respect for their rights and entitlements and so that they could properly consider their own law enforcement options, and take measures to deal with the risks of further victimisation to which they could be subjected. That conclusion was also part of Mr Owens reflections:58 We also had the unanswered outstanding question relating to the remaining thousands of people who had never been told they had been a victim of crime having had their car checked, their ex directory telephone number unlawfully obtained, their private lists of family and friends sold to the Press and so on. I also felt very strongly that the thousands of victims identified in Operation Motorman also had a right to know they had been victims.
4.8
The extent to which the perspective of the victims was overlooked may be connected with the fact that the seriousness of the wrongdoing suggested by the Motorman material led the ICO in two directions (prosecution and the campaign on s55) which were both in the criminal domain. Exclusive focus on the criminal aspects of what had been discovered, without consideration of the wider regulatory context, carried a potential (if not an inevitable) risk that the victims would be left out of the picture. That risk is evident in both the operational and political reaction of the ICO to Motorman. The obvious question arising from the failure to alert the victims has come to the fore in relation to all of the paths not taken by the ICO in response to Motorman: why, given the obvious operational magnitude and seriousness of this case, was action evidently given such a low priority? This is not a theoretical or historical question. The position of the victims was a contemporary issue for the Inquiry. While the prospects, in practical reality, of the ICO taking criminal or regulatory action in relation to Motorman may be regarded (absent further, fresher, evidence) as long since extinguished, individual victims expressed their concerns in terms of whether their involvement in Motorman might not have been part of a much wider context of their treatment at the hands of the press. There remained alive in their minds that question which Mr Owens said he had wanted to pursue: why did the press want their information? And the follow-up questions also arose, including what did they do with it and where was it now? This was the subject of a further ruling.59 Of all of the questions which arose before the Inquiry about the operational steps which the ICO could have taken in response to the Motorman material, this question of alerting the victims has clearly remained the most acute, notwithstanding the intervening years. For individuals, the question of what information a business holds about them, and what that business is doing with that information, is one of the core entitlements afforded by the data protection regime. The affected Core Participants indeed felt sufficiently strongly about this issue that they pressed the Inquiry itself to undertake a disclosure exercise in relation to the Motorman material. For reasons set out in a further ruling the Inquiry concluded that that
4.9
4.10
pp11-14, paras 4.17-5.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-ofAlexander-Owens1.pdf 59 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Ruling-In-Relation-to-Operation-MotormanEvidence-11-June-20123.pdf
58
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was not an appropriate focus of its own attention.60 But it clearly remains a live issue for at least some of the victims; and of course in referring to victims, only a very small proportion of those who were the subjects of material acquired by the press via Mr Whittamore, have had that fact confirmed to them to this day. 4.11 In the circumstances, the Inquiry considered it appropriate to seek the views of the current Information Commissioner, Mr Graham, on the position of the Motorman victims from the perspective of the present day. The relevant Core Participants are also understood to have approached him with a general inquiry. In his oral evidence, Mr Graham responded in this way:61 I had a letter last night, and no doubt this will be coming up later in the evidence, saying why have I not made contact with every individual whose name is mentioned in the Motorman file? And part of the answer to that is going to be I would have to take on a veritable army of extra people. Im also going to say I dont think its necessary, but this isnt practical. All regulators have to pick their battles, prioritise their resources, and I just need some evidence of there being a problem before I divert resources to do it. 4.12 Mr Graham was not here necessarily disputing that there was evidence of a problem at the time of the discovery of the Motorman material, but was questioning whether there was still a problem today. That line in his thinking, and the question of the prioritisation of operational resources, are considered more fully below. But Mr Graham also suggested that there were two further practical problems. In the first place, he reiterated Mr Thomass anxiety about occasioning further invasions of privacy:62 I think Richard Thomas put the point very well in his response to you on this matter, when he said: if, having established the identity of the individual and their address, we wrote to them to say simply, Your details appear in the Motorman file, we cant tell you why, that might be an even greater breach of privacy than the original offence, because there would be a suggestion that theres no smoke without fire. Other members of the family might see the letter and say, Hey, whats going on? and I couldnt tell them any more than a name appears in a file. The Inquiry is not persuaded that what is a perfectly fair concern about further invasions of privacy provides a reason for declining to contemplate alerting victims, nor that the risk of alerting third parties is one which could not, and cannot, reasonably be managed both through the means of communication and through the content. 4.14 Mr Graham advanced a second practical problem:63 The difficulty about simply contacting everybody lies in the nature of the dossiers themselves. Mr Jay, youve seen them. I dont know whether all the core participants are in that position, but these are notebooks, and sometimes the information contained in them is deeply obscure. I said in my witness statement that the individual who made
http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Ruling-In-Relation-to-Operation-MotormanEvidence-11-June-20123.pdf 61 p39, lines 12-21, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-26-January-2012.pdf 62 pp45-46, lines 19-4, Christopher Graham, ibid 63 pp44-46, lines 25-10, Christopher Graham, ibid
60
4.13
1048
the notes must have had a perfect understanding of what he was intending, but it isnt always clear. That partly explains why theres sometimes a discrepancy between the spreadsheets that weve compiled and the notebooks. If you said to me, You ought to notify everybody whose name appears in the Motorman files, Id be hard pressed to do that. It isnt just a question of resources, its it isnt immediately clear who is being referred to, because it isnt just celebrities, its all sorts of people who may or may not be part of a story concerning a celebrity or whatever it is; its just a name. Sometimes its just a surname.It would be a phenomenal undertaking. Just because theres a name, John Smith, I would then have to work out which John Smith. The example I gave to the Select Committee was Ziggy Stardust, thats a bit easier to do, but there are an awful lot of very anonymous names and it simply isnt practical. That may be a convincing explanation for the impossibility of contacting everyone involved in the Motorman material. It is not a convincing explanation for not contacting anyone. 4.15 There can be no doubt that a serious piece of work would be required for the ICO to undertake a wholesale review of the Motorman victims, and legitimate questions do arise about resources and priority. Mr Graham had his own suggestion about the way ahead:64 So far as the individuals are concerned, Im still very ready for subject access requests by those who may be concerned.if Hacked Off and their lawyers are representing particular individuals, then thats what were here for; subject access requests, off we go. Subject access requests allow individuals to exercise their entitlement under the data protection regime to know from any business whether it holds information about them and, if so, what. They are not a straightforward answer to the problem. Unless individuals are already aware that a given title holds their information, the right could be exercised only by a speculative correspondence across a range of newspapers and periodicals, at some inconvenience and expense to both the person requesting and the subject of the request. This therefore appears to be a paradigm case in which a statutory regulator could be expected actively to consider providing assistance. 4.16 There is, no doubt, a range of practical solutions to this issue which both the ICO and the industry could have offered to the Motorman victims at any point up to and including the present. One possible way forward would be for concerned individuals to be able to apply to the ICO seeking to obtain confirmation (in so far as the ICO is able to offer it) as to whether they can be identified among the Motorman victims and, if so, information as to the title or titles concerned and assistance, if necessary, in making a suitable request to those titles. If interest in exercising that right reached proportions beyond the capability of the ICO, then perhaps the press organisations could be directed or encouraged each to undertake its own victim contact exercise under the ICOs supervision.65 So far as the ICO is concerned, at any rate, this suggests a course of action within its easily accessible knowledge and, subject to reasonable prioritisation, within its capability. This could have discharged its general functions to satisfactory effect. There is no evidence that it was willing to turn its mind to any such possibility, either at the time or since.
4.17
pp44-46, lines 23-13, Christopher Graham, ibid The Core Participants (including press Core Participants) have had access to the Motorman material under strict conditions of confidentiality and only for the duration of the Inquiry. There is no reason that has been suggested, however, why the Information Commissioner should not engage with the press and facilitate some mechanism whereby this process could be put in place
65
64
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5. Conclusions and the questions raised by Operation Motorman

5.1 Operation Motorman was prima facie evidence of systemic and serious malpractice by the press in relation to the acquisition and use of personal information. It was also one of the biggest cases of deliberate and systemic data abuse of any sort to come to the attention of the ICO. In the view of the ICO itself the journalistic practices it disclosed on the face of it: (a) (b) (c) (d) (e) (f) (g) were widespread and systemic; were probably criminal; suggested extensive and continuing breaches of the data protection principles; suggested large-scale and continuing breach of individual rights; at the least raised serious questions about standards and proper practices by the press; were unlikely to be an isolated example; and had implications for the integrity of personal information, a number of public and private databases, and the data protection regime as a whole.
Additionally, it was apparent to the ICO that the industry was not (at any rate at the time) denying that there was a problem.66 5.2 This called for a commensurate response from the ICO which dealt with all aspects of the problem and included challenging the practices and safeguarding both the information and the position of the victims involved. It also presented a clear opportunity for a regulatory body to demonstrate publicly the importance and effectiveness of the data protection regime in safeguarding the public interest in information privacy. The ICO was the best-placed organisation to grasp the implications of the Motorman material as a whole and to take a decisive lead, working with other public authorities including the police and with the industry itself, to ensure that a comprehensive and effective response was made to the evidence that it disclosed of problems in the culture, practices and ethics of the press. From an operational point of view, the ICOs response to the Motorman material was not commensurate with the scale of the problem disclosed. The Information Commissioner ultimately considered that the problem was big enough for it to trouble Parliament and Government at the highest levels, including the Prime Minister. The contrast with the insufficiency of its operational response is all the more obvious. The ICO is principally an operational regulator, endowed with legal powers and functions to be exercised in the public interest. Its principal role is not to act as a political campaigning body but to discharge its regulatory functions at a practical level. In particular, from an operational perspective, it appears that: (a) there was an insufficiently strategic grasp of the operational issues and options facing the organisation as a result of the material for fully informed decisions to be taken, or for the results to be followed through; the senior management of the ICO in practice gave insufficient priority to the operational dimension of the Motorman material;
5.3
5.4
(b)
66
pp111-112, lines 20-7, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Morning-Hearing-9-December-2011.pdf; pp11-13, paras 30-38, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/12/First-Witness-Statement-of-Richard-Thomas-CBE.pdf
1050
(c)
the course of conduct of the criminal investigations was unsatisfactorily managed, with the result that opportunities were missed to address potential criminality in the culture, practices and ethics of the press; insufficient consideration was given to alternative operational strategies, both formal and informal, for addressing the matter; in particular, the failure to give serious contemplation to engaging directly with either the data controllers in the press or the data subject victims is difficult to reconcile with the general duties of the ICO or with a recognisably considered approach to weighing up its operational priorities.
(d) (e)
5.5
It also appears that there was insufficient connection between the operational work of the ICO on the Motorman case and the strategic or political choices made by the Information Commissioner to respond to the issue at a higher level, that is to say, by engaging in dialogue with the PCC and campaigning on s55. As a result, those choices were insufficiently wellinformed and effective, and not appropriately targeted at the issues about the culture, practices and ethics of the press disclosed by the Motorman material. In particular, while it was not unreasonable to think it worth exploring the contribution the PCC could make to addressing the problem presented by the Motorman material, the strategy lacked from the outset: (a) clearly-defined objectives and outcomes; putting a stop to the practice, condemnation and Code changes were propositions at too high a level of generality to be capable of generating a timetable or plan of action measurable in terms of identifiable changes in the culture, practices and ethics of the press; a clear, informed and realistic apprehension of the nature, role and functions of the PCC and the contribution it might be expected to make (which is a point that Mr Thomas accepted); it was not satisfactory for the ICO to seek to discharge its own functions to any extent through an organisation such as the PCC without being very clear about its ability to take on and deliver that charge satisfactorily, and there is insufficient evidence that this was properly researched; a detailed plan for how the ICOs own functions would have to be brought to bear to ensure that the two organisations contributions would work together to produce the desired regulatory outcome; a thought-through analysis of how the strategy of trying to engage the PCC on the one hand, and the political campaign on s55 on the other were likely to interact, particularly given the personalities involved, and plans for dealing with the potential (which might be thought obvious) for the objectives of each to conflict.
5.6
(b)
(c)
(d)
5.7
These problems were compounded by persistence in the dialogue with the PCC in a way which failed to be sufficiently focused and realistic, proportionate to its likely effect and effectiveness, failed to keep in view the ICOs own role and responsibilities. In particular, as it became apparent that the response of the PCC was falling short of what ICO hoped, opportunities were missed to reappraise the strategy which could have been replaced or supplemented by the direct exercise of its own powers and functions, including by way of issuing good practice guidance or otherwise engaging directly with the industry.
1051
5.8
Both Mr Thomas and, latterly, Mr Graham are to be commended for the extent to which they have robustly sought, in the face of sustained hostility and lobbying from the press, to make the case publicly for better standards and to encourage rational consideration of the merits of the argument for increasing the sentencing maxima for s55 offences. To the extent that the s55 campaign can be regarded as a response to the Motorman case (and I recognise that it had other motivations also), it is arguable that it was problematic in: (a) (b) the extent to which it drew the ICO into the contested political arena and away from its primary regulatory obligations under the DPA; the extent to which it focused exclusively on the criminal law as a potential solution, and its lack of practical engagement with the limitations on the effectiveness of such solutions; and not identifying the context, either within the wider role and functions of the ICO or in any plan for realising any benefits that it might have been capable of yielding.
(c) 5.9
In the light of the analysis of the response to the Motorman material, it is appropriate to conclude that ICO did not effectively grasp the full implications, and indeed opportunities, of the case. As a result: (a) (b) (c) (d) previous misconduct was inadequately brought to justice and was not otherwise addressed as a matter of law enforcement; the risk of continuing breaches of law and standards was not effectively addressed; the interests of the victims were inadequately protected; and an important opportunity was missed to address problems in the culture, practices and ethics of the press in relation to the acquisition and use of personal information, which could have had an impact beyond the facts of the Motorman case.
In the circumstances, a real question must remain as to whether these missed opportunities contributed, either at a general or a specific level, to later manifestations of disregard for the rights of others in relation to information privacy which were subsequently exhibited by certain parts of the press, of which phone hacking was the most serious. 5.10 I should make very clear that there is no evidence to suggest, as Mr Owens invited the Inquiry to do, that the political campaign and the publication of the What Price Privacy? reports were a deliberate attempt to deflect attention from the ICOs operational inactivity. To the extent that they drew public and political attention to the problem, they did themselves perform a function of acting as a warning to others in positions of authority to take action. To that extent, Mr Grahams description of the role of the ICO in the Motorman story (we are the good guys) may fairly be endorsed. The principal outstanding questions, therefore, to which the remainder of this Part of the Report is addressed, are these: (a) Is there any reason to think that there are still causes for concern about the culture, practices and ethics of the press in relation to personal information, whether as a matter of law or as a matter of good practice? To what extent do issues persist about the perception of the ICO that its role and powers are inadequate or inappropriate to address evidence of any such problems?
5.11
(b)
1052
(c) (d)
To what extent, on an objective analysis, are there genuine shortcomings in the legal framework, and are there any changes which could be made to improve the situation? Are there any other impediments to the ICO making a more effective contribution to supporting law enforcement and good practice in relation to the press which it is necessary or desirable to remove?
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Chapter 4 the ICO and the press tOday

1. Introduction
1.1 The current Information Commissioner, Christopher Graham, took over from Mr Thomas in the summer of 2009. In the context of this Inquiry, it is of interest that his previous career was in journalism, broadcasting and regulation (he was a former Director General of the Advertising Standards Authority), rather than in law. He told the Inquiry that the culture, practices and ethics of the press were not drawn to his attention on handover as an issue of top priority. He was, however, aware that commencement of the legislative changes to s55 was outstanding and he made a connection between legislative change and press conduct saying that there was:1 a sword of Damocles hanging over the press. If there was any repetition of the behaviour that Operation Motorman had uncovered that would be accessed pretty quickly. 1.3 In the event, he had what he described as a wake up call a few weeks after taking up his appointment when the story by Nick Davies about phone hacking was published in the Guardian. His principal focus thereafter was not, however, operational but political: he had to prepare for his appearance on 2 September 2009 before the Culture Media and Sport Select Committee2 which was then taking evidence specifically as a result of the emergence of the Goodman/Mulcaire case and the coverage in the Guardian, but linking it also with the history of Operation Motorman. This was therefore an opportunity for Mr Graham to take stock of the history of Motorman, the role of the ICO, and the signs from the emerging hacking scandal that the story of press abuse of personal information was taking a new direction. His evidence to the Select Committee was that: (a) (b) phone hacking was a matter for the police and the ICO had no involvement whatsoever; any operational steps the ICO could have taken in relation to Motorman (including criminal investigations into journalists) would have been too difficult practically and legally and were not a priority call on resources at the time; the priority of the ICO in relation to Motorman was to sound the alarm, to warn the industry, to talk to the PCC, to urge the provision of a custodial penalty and the latter remained the priority; there was little more that could now be done in relation to the Motorman material without more, not least because it was old and not straightforward to interpret; and he had no intention at this point of proactively reviewing the Motorman evidence, because it would serve little purpose and the ICO had many other priorities.
1.2
1.4
(c)
(d) (e) 1.5
The question of priorities was a matter of some concern to the Committee at the time. Mr Graham was pressed particularly hard on the position of the victims, some of whom were
p4, line 19-22, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-26-January-2012.pdf 2 http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/9090205.htm
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Chapter 4 | The ICO and the Press today
expressing anger at not having been notified by the ICO of their appearance in the Motorman material. Mr Graham indicated that he would treat approaches from individuals inquiring about their possible appearance in the Motorman material on a case by case basis. He was also pressed on whether the ICO had worked with the organisations, both public and private sector, whose information had been wrongly disclosed in the Motorman case; a certain amount of work had been done but various factors had limited the extent of the engagement. These included the increasing general insecurity of information of all sorts, the flourishing illegal trade in information procurement, and the risk that any investigation would itself present a risk of the further dissemination of the personal information in question 1.6 It is not necessary to consider Mr Grahams evidence to the Select Committee in detail, because the same ground was explored in the course of his evidence to the Inquiry. His general update to the Committee on the work of the ICO work with the press at that time is, however, interesting. He said:3 We started off by a general call to the industry which, indeed, was heeded to some extent in that the Editors Code Committee eventually amended clause 10 of the Code, made it much tougher, and we have done a lot of work with the PCC in training editors. We have done a couple of seminars, one in London and one in Scotland, to make sure that journalists understand that this is serious. I saw a copy of the Editors Code Handbook the other day and it makes it very clear that you mix with the Data Protection Act at your peril and you had better have a very solid public interest story very well documented, in order to do that. Chairman, the interesting question is why did not any of those titles that were listed in What Price Privacy Now? contact the Information Commissioners Office and say, This is terrible, 45 of our journalists apparently have been doing this thing which we utterly condemn, tell us who they are, and we then might have been able to talk turkey. Interestingly, of 305 journalists, and we listed the total in the document, we have not had a single inquiry from a journalist saying, Am I on that list? Was I doing something wrong? 1.7 The Inquiry has also had to consider the question of the lack of press interest in pursuing the Motorman evidence but it is also important to look at the position from the perspective of the ICO. Its own stocktake, at the end of 2009, was that it was aware that Mr Thomas political campaign had at best been only partially successful, and had also established a hostile response from the press. It knew that neither the ICO itself, nor evidently the press, had followed up the Motorman evidence operationally, either in relation to the particulars of the state and use of the information itself, the conduct of individual journalists, or its own practices. Finally, it was on notice of the emergence of the phone hacking scandal. Notwithstanding this assessment, the ICO had concluded that there was no imperative for it to engage further with the culture, practices and ethics of the press. In particular, Mr Graham expressed the view to the Select Committee in relation to the PCC that We do not have any formal relationship with them, but I just accept that they do press standards and we do data protection and, where those two things cross over, then we probably need to talk. The two things clearly do cross over. In concluding this Part of the Report, assessing the current state of the role and functions of the ICO, and making recommendations for the future, the focus returns to the key themes of the Motorman case, but viewed now from the contemporary perspective. Those themes are:
1.8
1.9
Q1807, Christopher Graham, http://www.publications.parliament.uk/pa/cm200910/cmselect/ cmcumeds/362/9090206.htm
1055
(a)
the extent to which there are problematic issues today which fall within the purview of the Information Commissioner and concern the culture, practices and ethics of the press in relation to personal information; the powers available to the ICO to tackle any such problematic issues, and whether they are sufficient to the task; and the governance, capability and priorities of the ICO and whether they too are sufficient and appropriate to the task.
(b) (c)
2. Personal information privacy and press practices

2.1 Mr Grahams evidence to the Inquiry was that he did not believe that the press was significantly involved in breaches of the Data Protection Act since the publication of the What Price Privacy? reports, and that therefore, by implication, they had learned the lessons of those reports. This evidence is at the heart of the Inquirys terms of reference, and, given the way in which the phone hacking scandal developed, is not entirely obvious. It thus requires close analysis. Mr Graham put the matter in this way:4 I can only speak of whats in my own knowledge, and I can only speak of those aspects of press conduct that fall within the responsibilities of my office, and thats primarily Section 55. I know that the Inquiry was triggered by concerns about hacking of phones and hacking of emails, these are criminal offences that dont come under the Information Commissioners office, but Section 55 certainly does. I cant prove a negative. All I can say is Ive seen no further evidence beyond what we published in 2006, and that of course was about behaviour before when Mr Whittamores office was raided, and much of it related to activity between 1999 and 2003. I simply offer a view that this is an issue of such high salience, many investigative journalists working in the area, great rivalry between newspaper groups, lots of campaigners, that if there was evidence of further breaches of Section 55 by the press, it would have been drawn to my attention, and it hasnt been.
2.2
2.3
The latter point was one on which he expanded:5 theres been so much feverish activity over the past two years in relation to this with the various newspaper groups, with the journalists, with the books written on the subject, with the campaigning groups. If the best that critics can do is to turn up further evidence of what was going on between 1999 and 2003, it doesnt amount to much.
2.4
The questions raised by this evidence were many, and included: (a) why s55 (the criminal offence of unlawfully obtaining information) was being used as the benchmark for contravention of the regime rather than the wider scheme of principles and rights created by the regime; why Mr Graham would have expected investigative journalists or other campaigners to have been likely to excavate issues about the press and personal information which the ICO, charged with legal responsibilities in that respect, was not itself minded to pursue;
(b)
pp6-7, lines 10-3, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-26-January-2012.pdf 5 p27, lines 6-12, Christopher Graham, ibid
1056
(c)
why the ICO did not appear to consider that the phone hacking scandal itself and the wider issues of the culture, practices and ethics of the press before the Inquiry were a cause of acute concern within its own sphere; why the ICO was able to conclude that the Motorman evidence was of no continuing interest or relevance in relation to the data protection regime; and if the ICO was unaware of any problems in relation to the press, to what extent that was a reasonable conclusion based on due diligence.
(d) (e) 2.5
The due diligence point had particularly exercised Tom Watson MP in putting the following questions to Mr Graham (and his ICO colleague Mr Clancy) on behalf of the Select Committee:6 Q. What I am trying to do is ascertain responsibility in the system for getting this right. Are you convinced that these practices have now ended in newsrooms up and down the country? A: I am not in a position to know. Q. What I am trying to understand is that the decision you took, which, by the way, I think was the right decision, to blow this open, bring it into the public domain and try and effect massive change in the way journalists run about their work, I can understand why in a resource-sensitive area that is what you did, but what I cannot understand is why you have not gone back to see whether that has been successful or not or what gauge of success there is. A: How can we measure it? Do we go to editors and say, Have you come across any examples of journalists that have stepped over the line? Q. Is there anyone in this country who would know whether these practices are still going on other than editors and journalists in the newsrooms? A: Well, editors and journalists must know; it is a self-regulatory system. Q. So, when they tell us that they think that they have thoroughly investigated the matter and they have put it right, do you think they could possibly have done that if they do not know the list of journalists that you have got on your files? A: I think there might be information which would identify some of those journalists because some of the invoices quite clearly indicate that there have been blags in relation to particular stories and invoice numbers. Surely, their records should be able to cross-reference that to a particular journalist, and sometimes the invoices cross-reference the stories, so editors could examine their business and perhaps identify which journalists were or were not. Q: I think you could perhaps be a little proactive just to ensure that they have certainly done that or that they certainly have the information about the people who were at it? A: I understand what the Committee is saying, but you are not dealing with a regulator who is not proactive; we are proactive on a very wide front. There are lots of ways we could spend our time.
2.6
The due diligence point itself resolved itself into a number of sub-issues relating to the question of specific follow-up to Motorman; the strategic follow-up to Mr Thomass political campaign, the response to the phone hacking scandal, and the position of the ICO in relation to the press today. These will be discussed in turn.
Q1844-Q1851, Christopher Graham, http://www.publications.parliament.uk/pa/cm200910/cmselect/ cmcumeds/362/9090208.htm
1057
3. Following up Operation Motorman

3.1 As is frequently repeated, Operation Motorman was the single biggest case of deliberate and systemic interference with personal information with which the ICO had had to deal since its inception. The ICO had taken no operational measures in respect of the case since handing over the Whittamore prosecution to the CPS. There had been modest progress in issuing general guidance to the industry after years of discussion with the PCC. A custodial penalty for s55 offences had been provisionally introduced but not activated. This fell short of the steps Mr Thomas had wanted to see in order to put a stop to Motorman-type practices in the press for the future. The ICO remained very concerned about the evidence it continued to encounter of an extensive illegal market in personal information beyond the activities of the press. It had no reason to believe that private investigators similar to Mr Whittamore were not operating in the market. It is therefore necessary to consider whether there was (or should have been) a question mark in the mind of the ICO as to whether or not the objective of putting a stop to the engagement by the press in the illegal market in personal information had in fact been achieved. That general question might resolve itself into a number of specific questions. Firstly, what had happened to the information which the press had acquired prima facie in breach of the data protection regime from Mr Whittamore? Secondly, what effect had the What Price Privacy? reports and the guidance had on the industry? Finally, what steps had the newspaper titles involved taken (particularly in relation to the journalists who had been identified as customers of Mr Whittamore) to eliminate this sort of conduct from their culture, practices and ethics? On the follow-up to the question of press conduct in relation to blagging and related activities, Mr Graham confirmed to the Inquiry the position he had taken in front of the Select Committee. The ICO had made no active investigations of any nature in relation to the Motorman material itself. No material had been brought to its attention suggesting that there was any problem. In the absence of that, it was not its role to pursue enquiries. It had other current priorities.7 There was also, in his view, no case for a proactive approach to the victims. But he did say that so far as the individuals are concerned, Im still very ready for subject access requests by those who may be concerned.8
3.2
3.3
3.4
4. Following up the political campaign

4.1 Before the Select Committee, Mr Graham appeared to be continuing to connect the s55 campaign with the issue of press misconduct. This exchange with Mr Watson was interesting in that context:9 Q. But the evidence you have in front of you shows that there was law-breaking on an industrial scale from the newsrooms of some of the major newspapers in the United Kingdom.
pp8, lines 13-19, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-26-January-2012.pdf 8 p44, lines 23-25, Christopher Graham, ibid 9 Q1843 and Q1859, http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/9090208.htm
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A. I am afraid I am going to become repetitive. You simply cannot run regulatory bodies on the basis that you go chasing after every detail that a particular investigative journalist decides should be the agenda for the day when you have got other very big and important questions. I am not pleading poverty here, I am just saying that you can only do what you can do. We thought, possibly naively, that, by telling Parliament about this back in 2006 and calling for the custodial sentence, we could close the thing down. I think they still can, but it is taking too long. 4.2 As noted above, the ICO has continued to press for the activation of the custodial penalties for s55 offences, but no longer apparently with any direct focus on making an impact on the press. Although not directly a matter for the Inquiry, no account has been offered of how the case for the activation of those penalties has been affected by the more recent availability of civil penalties. In any event, however, the case for the activation of the s55 penalties in so far as it has a bearing on the matters before the Inquiry is considered on its own merits below. If the ICO has yet to realise the benefits of the s55 campaign (and there remains no evidence of any active planning within the office for doing so the effect still appears to be considered to be self-activating), it seems to be continuing to reap the dividend of general press hostility. That too requires consideration.
4.3
5. Phone hacking and the ICO

5.1 The What Price Privacy Now? follow-up report to Parliament noted the arrest and charging of Clive Goodman and Glenn Mulcaire in these terms:10 the circumstances appear to have parallels with the Section 55 offence and to reinforce the evidence gathered during Operation Motorman. In terms of pure personal information, the parallels between phone hacking and the Motorman activities are very clear. Shorn of the labels provided by the criminal law, both come down to the press employing unscrupulous external agents to obtain confidential personal information about other people. Further, that information is provided without their knowledge or consent and obtained by unlawful means whether by deceit, corruption, or the exploitation of technology. In respect of any individual piece of information, the journalists may or may not have had good reasons or formal defences for doing so. But prima facie these were the sort of invasive practices from which the data protection regime (along with its principles and rights) was designed to protect people. 5.2 There were on the face of it two reasons why the ICO might have taken a keen interest in the Goodman/Mulcaire developments In the first place, there was the indication that even in the post-Motorman environment, sections of the press were still involved in the unlawful trade in personal information. This was a clear warning signal in its own right that all might not be well in the approach and practice of the press regarding personal information, and raised a question mark against the efficacy of the strategy of the ICO for responding to Motorman. In the second place, there was the concern whether there could be any direct relationship between Motorman and Goodman/Mulcaire. This was the question which had occurred to Mr Owens:11 was it possible that the private phone numbers obtained by the press via
5.3
pp8-9, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-2.pdf pp40-41, lines 12-3, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Transcript-of-Afternoon-Hearing-30-November-2011.pdf; pp13-14, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Witness-Statement-of-Alexander-Owens1.pdf
11
10
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Mr Whittamore (not just the ex-directory numbers of the targets but the multiplicity of friends and family numbers), had been used to hack their phones? Were these precisely the private lines most likely to have been used by the targets for the purposes of confidential conversations, texts or voicemails? Mr Owens told the Inquiry that he took these questions and thoughts to Nick Davies of the Guardian. He also told the Inquiry that there seemed to be considerable overlap between the target names in the Motorman material and in the Mulcaire material. 5.4 If the connection was made in the mind of the ICO, whether at either the general or the specific levels, the Inquiry had no evidence of it beyond the reference in What Price Privacy Now? Mr Thomas told the Inquiry, somewhat obliquely, that notwithstanding the connection made in its own report, the ICO thought that the Goodman-Mulcaire case appeared to be a completely separate group.12 For his part, Mr Graham maintained in his evidence to the Inquiry the position he had taken in front of the Select Committee two years previously, namely that hacking and blagging were separate activities and that the ICO had no formal role in relation to the former because it had no prosecution or criminal investigation powers in relation to hacking, which was a police matter.13 He had put it bluntly to the Select Committee:14 We were not involved, so far as I know and I cannot think of any reason why we would be, in the most recent PCC investigation which was into the Goodman case which, I will repeat, was about hacking and not about blagging, so I would have been surprised if they had come to us and, if they had, I would have had to say, Cant help you, chum. 5.5 Counsel to the Inquiry pressed Mr Graham on the broader question; the newspaper industry had claimed, and the ICO appear to have accepted that claim, that after the ICOs 2006 reports, it had cleaned up its act. How could we know that was true, given that we did know it hadnt cleaned up its act in relation to phone hacking? Mr Grahams answer was that they were different things.
The ICOs current stance

5.6
H
5.7
Mr Grahams position that the ICO had no particular reason to take an interest in the press was challenged in the course of his oral evidence to the Inquiry. His response was that it was a matter for the politicians, the PCC or indeed for the Inquiry itself to find out whether there was a problem with the press approach to personal information.15 Furthermore, the ICO had many other current priorities.16 Mr Graham explained that he had no present intention of using his powers, or taking any other step formally or informally, to consider the culture, practices and ethics of the press in relation to personal information. Put to him that he had positive responsibilities to promote compliance and good practice, that he had appropriate investigatory powers to take proactive steps to consider the position of the press in this regard, and that it would not on the face of it involve any great exercise to do so, he remained clear that he had other competing demands
p50, lines 10-12, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf 13 pp22-23, lines 23-6, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-26-January-2012.pdf 14 Q1884, http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/9090210.htm 15 pp24-26, lines 12-4, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-26-January-2012.pdf 16 pp26-27, 34, 38, 40-41, lines 21-12, 10-15, 3-12, 17-1, Christopher Graham, ibid
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on his time. He did conclude, however, that should the Inquiry recommend that he consider deploying his resources in this way, that view would be something the ICO would have to take very seriously.17 I return to this. 5.8 As an independent statutory regulator, the ICO has a prerogative to set its own priorities within the overall scheme of the powers and duties entrusted to it by Parliament. For the behaviour of the press to have no part in those priorities is not, on the face of it however, easy to understand. The ICO was created to have custody of the issue of the law and practice of information privacy as articulated in the data protection regime. This Inquiry was established to address arguably the greatest crisis in public confidence in information privacy since the creation of the data protection regime. A great deal of the evidence received by the Inquiry about press misconduct related to personal information privacy (including inaccuracy). The persistence of the ICO, even in the face of the commissioning of the Inquiry and the evidence received by it, in seeking to recuse itself from any proactive engagement in addressing the crisis in public confidence was troubling. Even allowing for the inevitably particular perspective that the Inquiry has, I do not find it easy to accept the proposition that the lack of priority which the ICO accorded to the press issue is obviously reconcilable with its overall public responsibilities. Before reaching a final conclusion on that point, however, it is necessary to reflect on whether there were in fact other, possibly structural, explanations for its unwillingness to put itself forward as a significant part of the answer to the concerns before the Inquiry.
5.9
17
pp40-41, lines 23-1, Christopher Graham, ibid
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Chapter 5 Issues about the LegaL Framework

1. the current views of the ICo
1.1 The account that Mr Graham himself provided of the role, functions and powers of the ICO drew attention to the way in which they had more recently developed:1 The Information Commissioners role in regulating the use of personal data has evolved over the years. The role was originally intended primarily as an educator, ensuring data protection compliance by promoting good practice. Significant enforcement powers of the Commissioner, such as civil monetary penalties, have been introduced by amendment over the last few years, partly in response to high profile data losses. Section 51 [of the Data Protection Act 1998] sets out the general functions of the Information Commissioner. These are generally about promoting good practice rather than punishing poor practice. This educator function is still central to how I approach my role as Information Commissioner. 1.2 The power to impose civil monetary penalties of up to half a million pounds was introduced in April 2010. Mr Graham described it as:2 beginning to have a very salutary effect, both on public authorities and on commercial companies. They realise that the Information Commissioner has teeth. 1.3 He also explained his view that the way in which the Data Protection Act (DPA) bore on the press was complex; it was not easy to explain in clear and simple terms to individuals what their rights were, what the role of the ICO was in enforcing those rights, and what its relationship was to other organisations with functions in the area of law enforcement and good practice. This, in his view, meant that individuals sometimes expected more of the DPA than it was capable of doing in this area.3 That might be thought likely to suggest two consequences in particular. These are an increased emphasis on the explanatory and educational role of the ICO which Mr Graham had previously emphasised, and an increased burden on the ICO itself to give a clear lead in relation to compliance and good practice by the press, since individuals were evidently relatively less well placed to proactively enforce their own rights. The conclusion reached by Mr Graham was different. He put it that, had Parliament intended to give the Information Commissioner a significant role in overseeing the use of personal information for journalistic purposes, it would have provided him with a very different and much simpler legal framework within which to do so.4 He was clear that the ICO was never intended to play a major role in the regulation of the press and that while the data protection regime was designed to protect information privacy it was not intended to impinge on the use of personal information for the purposes of journalism. The enforcement role of the ICO in this context was intended to be very limited; there was to be no challenge available
H
1.4
p5, para 2.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ChristopherGraham.pdf 2 p18, lines 2-5, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-26-January-2012.pdf 3 p26, para 6.10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ChristopherGraham.pdf 4 p14, para 3.21, ibid
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Chapter 5 | Issues About the Legal Framework
on data protection grounds to the use of personal information for journalism, and certainly none prior to publication. The principal effect of the DPA on journalism therefore was in the application of the criminal offence created by s55.5 1.5 However, Mr Grahams more detailed consideration of the scheme of the DPA in relation to the press necessarily qualifies that very general proposition.6 In this, he set out the significant restrictions placed by the exemption provisions of s32 on the enforcement powers of the ICO in relation to journalists use of private information, concluding that therefore the Act largely leaves it to individuals to pursue court action after publication if they want to assert their rights: this is, of course, a problem if the legislation makes it hard for them to understand what those rights are. He also drew attention to the fact that the exemption is made to turn on the reasonable belief of the journalist that publication would be in the public interest. In considering whether a journalists belief about the public interest is reasonable, the DPA provides that regard may be had to his or her compliance with any relevant Code which has been designated for that purpose by the Secretary of State: the Codes so far designated are the PCC Editors Code, the Ofcom Broadcasting Code and the BBC Producers Guidelines. It was Mr Grahams view that the role given to journalists reasonable belief in the public interest meant that:7 it is not the Information Commissioners judgment about where the public interest lies or whether the provisions of the Act are compatible with journalism that counts and he has limited power to investigate or challenge the [journalist] data controllers opinion. 1.8 He did accept, however, that the Information Commissioner has powers, albeit specific and limited, to challenge whether the press exemption is being properly relied on. They are specific and limited because the DPA inserts a lot of procedural hurdles to their use, including the restriction that action cannot generally be taken unless the ICO is invited to do so by an individual or a court (irrespective of the fact that individuals may not be well-placed to issue such an invitation). But the powers do confer a function on the ICO of, in effect, policing the boundary between proper and improper claims on the journalism exemption:8 In essence the investigative and enforcement powers at the Information Commissioners disposal exist to enable me to ascertain whether personal data are being processed for purposes other than journalism and to act in relation to those other purposes, rather than enabling me to regulate the actual processing of personal data for journalistic purposes. 1.9 To the extent, therefore, that there is any issue that journalists were, for example, seeking and using personal information for a range of unethical purposes other than with a view to publication, a regulatory question does arise. An example might be to threaten publication for collateral purposes or otherwise to put pressure on individuals to act or refrain from acting in certain ways. That, he recognised, would be expected directly to engage the functions of the ICO.
1.6
1.7
5 6 7 8
pp22-24, paras 6.1-6.7, ibid pp6-16, para 3.3-3.26, ibid p9, para 3.10, ibid p13, para 3.20, ibid
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1.10
Mr Graham also acknowledged that ss32 and 55 did not exhaust the application of the DPA to the press. Quite apart from specific provisions (for example, the express provision that individuals have enhanced rights to damages for breaches of the legal requirements of the regime by the press),9 the general duty of the ICO to promote compliance and good practice applies in relation to the press. About that general duty, Mr Graham observed:10 I also have a duty under section 51 of the Act to issue guidance and promote good practice. This duty is not specific to the press, journalism or other special purposes. I am aware that during my predecessors time in office significant efforts were made to provide advice to the PCC in relation to guidance we were encouraging the PCC to produce for journalists, focusing on the section 55 offence. So far as I am aware, the PCC did not go any further than producing general, high level guidance on journalism and the Act at the time and we have not received any further approaches to discuss such guidance during my time in office. Of course, the general duty to promote compliance and good practice, and the power to issue guidance, is free-standing and not dependent on the receipt of an approach.
1.11
Mr Grahams perspective on the role of the ICO in relation to the press also included an important acknowledgement that the correct approach to its more specific regulatory functions had to be on a case by case basis and not on the basis of generalised assumptions about the exclusion of journalism from the purview of the regime. What Mr Graham said in this respect is set out in full here because I am content to adopt it for the purposes of this Report as an accurate and succinct summary of the legal and practical position, and one on the basis of which the outstanding questions about the detail of the regime in its application to the press should be considered:11 The fact that there is a public interest in a free press being able to go about its business is reflected in the treatment of the special purposes under the Act. However, it cannot be the case that any and every activity carried out in the name of journalism should be regarded as exempt from the provisions of the Act. Indeed, I do not believe that that extreme position is seriously advanced by any significant strand of opinion within the journalistic profession. There will, in certain circumstances, always need to be a judgment around the public interest in particular stories. This point is explicitly provided for in the various journalistic codes, for example the PCC Editors Code, Ofcom Code, BBC Producers Guidelines, and so on. This is also the position reflected in the recitals to the Directive itself. The balance to be struck between Article 8 and Article 10 of the Human Rights Act 1998 has to be considered on a case by case basis. The inevitable tension between the right to privacy and freedom of expression demands that the issues at stake in each situation are properly evaluated. I observe in passing that making judgments on where the balance of the public interest lies on the facts of each case is something that the information Commissioner is called upon to do under both the Act and the FOIA.
1.12
The last point is particularly significant. Although it is the journalists honest belief that he or she is working towards a publication in the public interest that counts, a challenge as to whether that belief is a reasonable one in all the circumstances is a matter for the Information Commissioner to consider on a case by case basis, and a matter on which the ICO has a general measure of experience and expertise.
http://www.legislation.gov.uk/ukpga/1998/29/section/13 p15, para 3.26, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ChristopherGraham.pdf 11 p25, para 6.8, ibid

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1.13
In my judgment, on the face of it, a combination of this kind of case by case approach to the ICOs law enforcement function in relation to the press, and the application to the press of the ICOs general duties to promote compliance and good practice, do add up to a significant potential role in guaranteeing public confidence in the culture, practices and ethics of the press in relation to personal information. However, the Inquiry saw little evidence of the realisation of that potential, or, in practice, of that role having been fulfilled. It was particularly hard to reconcile this potential with Mr Grahams resistance to the suggestion that the ICO should be actively making a connection between its role and functions and the activities of the press in relation to personal information privacy. In looking for any possible explanation for that within the legal framework itself, the question which has to be considered is whether there are features of the current data protection regime in relation to the press (including perhaps the needless complexity cited by the Information Commissioner himself) which were themselves inhibiting that role and which are capable of improvement.
1.14
2. A different perspective on the legal framework

2.1 The Inquiry was greatly assisted by the evidence of Philip Coppel QC who reflected on the history and substance of the provisions of the DPA with a particular bearing on journalism.12 By way of introduction, Mr Coppel pointed out that the predecessor legislation to the DPA, that is to say the Data Protection Act 1984 (which was not the product of a European Directive), had no exemption provisions for the press equivalent to those in the modern legislation. It was the EU Data Protection Directive of 199513 which required Member States to introduce measures into domestic law to: provide for exemptions or derogations for processing personal data carried out solely for journalistic purposes only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression 2.2 As Mr Coppel explained, in this way the Directive itself represents the balance that has been struck in relation to personal information privacy, between the individual right to privacy and the individual right to freedom of expression found, respectively, in Article 8 and Article 10 of the European Convention on Human Rights (now incorporated into UK law by the Human Rights Act 1998). Mr Coppel explained that the Data Protection Act 1998 in turn gives effect to the required balance in three main ways:14 (1) Through the s32 exemption. This relieves a data controller from all obligations under the DPA to an individual (and correspondingly removes protection conferred by the DPA on an individual 37-45 above) where the data controller is processing that individuals data only for purposes of journalism, for artistic purposes or for literary purposes, and then only provided that three conditions are satisfied.
http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Philip-Coppel-QC-redacted.pdf; without reproducing it in full here, his general introduction to the history and substance of the Act is a commendably lucid and concise overview which should recommend itself to the general reader and which I am pleased to be able to adopt for the purposes of this Report: see pp2-12. This was also covered in his oral evidence: pp1-20, Philip Coppel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-Morning-Hearing-17-July-2012.pdf 13 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data 14 pp12-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Philip-Coppel-QCredacted.pdf
12
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The three conditions that must be satisfied in order for personal information processed for the special purposes to enjoy the s 32 exemption are: i. the processing is being undertaken with a view to the publication by any person of journalistic, literary or artistic material; ii. the data controller reasonably believes that, having regard to the special importance of the public interest in freedom of expression, publication would be in the public interest; and
iii. the data controller reasonably believes that, in all the circumstances, compliance with the data subjects rights is incompatible with the special purposes. (2) By the procedural relief conferred by s 32(4)-(5). Proceedings against a data controller must be stayed where the data controller claims that the data are being processed only for the special purposes and with a view to publishing by any person of journalistic etc material. The stay remains in place until the Commissioner has made a determination under s 45 that the data is not being so processed. (3) By creating a special enforcement regime (see 54-55 above), which largely displaces the ordinary enforcement regime.
Civil law enforcement: the exemptions in s32 of the Data Protection Act
Legal analysis and suggestions for reform 2.4 The first thing to note about s32, as Mr Coppel explained, is the extent to which it disapplies the protection for individuals which is effected by the Act itself.15 Mr Coppels analysis of s32 began by highlighting the notable features of the exemption:16 (1) It exempts the data controller from compliance with the great majority of obligations under the DPA owed to a data subject , rather than just the limited group of obligations termed the subject information provisions or the nondisclosure provisions. This includes compliance with the data protection principles. (2) The processing by the data controller must be both:
only for the special purposes; and with a view to the publication by any person (i.e. not just the data controller) of any journalistic, literary or artistic material (i.e. it need not be the data being processed nor need it be related to the data being processed). (3) The second and third limbs needed to engage the exemption turn on the reasonable belief of the data controller, rather than on fact. The only matter identified by the section as inform that belief when assessing its reasonableness are various press codes of conduct, prepared by the press. 2.5 Mr Coppel described the legislative and caselaw history of the s32 provision; this is important context and is therefore set out as follows in full: Parliamentary history of s.32 exemption
p24, lines 8-10, Philip Coppel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-17-July-2012.pdf 16 pp13-16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Philip-Coppel-QCredacted.pdf
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The s 32 exemption originated as clause 31 in the Data Protection Bill. In giving the Bill its second reading speech in the House of Lords, Lord Williams of Mostyn recorded the paramountcy which the clause was intended to give to freedom of expression: The Government believe that both privacy and freedom of expression are important rights and that the directive is not intended to alter the balance... This view was endorsed by Lord Wakeham, chairman of the Press Complaints Commission, who commended the Bill for: ...steer[ing] a sensible path which avoids the perils of a privacy law and achieves the crucial balancing act - of privacy and freedom of expression - in a clever and constructive way....The Data Protection Bill does not introduce a back-door privacy regime. The Human Rights Bill does. The Data Protection Bill safeguards the position of effective self-regulation. The Human Rights Bill may end up undermining it. The Solicitor-General (Lord Falconer of Thoroton) then endorsed Lord Wakehams view: No one could have expressed the arguments in favour [of cl 31] more eloquently. Disquiet was expressed in the House by others: that, as a result of cl 31, the Bill failed to protect privacy, that cl 31 was too wide and significantly undermined the function of the legislation, and that the notion of the public interest was too wide and vague a basis upon which to disapply the protection conferred by the Bill. Amendments were unsuccessfully introduced to address these misgivings. In supporting the amendments, Lord Lester of Herne Hill warned at length that, as drafted and because of cl 31, the DPA failed to implement the Directive and authorised interference by the press with the right to privacy in breach of Art 8 of the ECHR. The authorities Judicial pronouncements have acknowledged that the DPA is concerned with the protection of an individuals ECHR rights to privacy. The principal judicial authority on the s 32 exemption is the Court of Appeals judgment in Campbell v MGN Ltd. The claimant had claimed against a newspaper for its having published articles which disclosed details of the therapy the claimant was receiving for her drug addiction. These included covertly taken photographs of her leaving a therapy group meeting. The claimant alleged that these amounted to a breach of confidence (based on her right to privacy under ECHR arts 8 and 10) and a breach of the data protection principles (entitling her to claim a breach of the s 4(4) DPA statutory duty). In the High Court, judgment was entered for the claimant on both claims. In relation to the DPA claim, the newspaper agreed that publishing the articles it had processed sensitive personal data relating to the claimant. The court held:
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that the published information (i.e. the nature and details of her therapy) constituted sensitive personal data relating to the claimant; that that was not lawful since it constituted a breach of confidence; that that processing was not fair as the information was acquired surreptitiously; that that processing did not satisfy any of the conditions in Schedule 2; that that processing did not satisfy any of the conditions in Schedule 3; and that the exemption in s 32 only applied to processing out with a view to publication and not to the processing involved in the publication itself. The court assessed damages at 2,500 and aggravated damages at 1,000. The Court of Appeal allowed the newspapers appeal on both the confidentiality claim and the DPA claim. The Court of Appeal accepted that processing included publication in print. However, the Court, reversing the High Court, extended the duration of s 32 exemption to cover processing on and after publication. This division between processing before and after publication had limited s 32s disapplication of the DPAs protection up until, but not including, the most invasive activity - publication. In construing the section to give press freedom paramountcy throughout and with no opportunity to balance the individuals interest in maintaining privacy, the judgment renders the DPA unlikely to be compliant with the Directive. The claimant appealed to the House of Lords. The claimant put the breach of confidence claim at the forefront of the appeal, with the parties agreeing that the DPA claim stands or falls with the outcome of the main claim and that it add[ed] nothing to the claim for breach of confidence. In this way, protection of privacy in personal information came to be secured through the adaptation of the action for breach of confidence. In so doing, the House of Lords absorbed into the action the competition between freedom of expression as protected by Art 10 and respect for an individuals privacy as protected by Art 8 the very balancing exercise which the Directive articulates and which the DPA is supposed to implement. On one analysis, the House of Lords judgment appears to leave untouched the Court of Appeals treatment of the DPA. This would be unfortunate. The misgivings which had been expressed in Parliament during the passage of the Bill (see above) materialised with the Court of Appeals judgment. The better analysis is that, given the parties agreement that the DPA claim stood or fell with the breach of confidence claim, the latters success means that the DPA claim enjoyed equal, if unspoken, success in the House of Lords. Personal privacy protection since Campbell v MGN The practical effect of the Campbell litigation has been that breach of privacy claims are now principally brought under the HRA, rather than under the DPA. This is borne out by the treatment of privacy in the main media law practitioner text, which recognises that the DPA:
contains the most comprehensive privacy provisions now affecting the media
but goes on to comment that misuse of private information (i.e. the evolved breach of confidence action): ...will be of most relevance in the majority of privacy cases involving the media
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and that: ..the other [action], much less significant in practice, is reliance on statutory rights such as those afforded by the Data Protection Act 1998. The explanation offered for this is that: Data protection law is technical and unfamiliar to most judges. Claims under this legislation will rarely offer tangible advantages over a claim for breach of confidence or misuse of private information. Given the paucity of current authority on how the Data Protection Act 1998 is to be interpreted and applied, applications for summary judgment on such claims are for the moment at least, unlikely to find favour. Given that the stated objective of the Directive was to protect personal privacy in information in a way which reconciled Arts 8 and 10 of the ECHR, this practical result suggests a shortfall in the implementation of the Directive. 2.6 Mr Coppel concluded by summarising the current position with the following propositions:17 (a) The DPA provides a code to protect the privacy of an individuals personal information, in whatever form recorded other than in ad hoc manual records. (b) The protection required by the Directive and provided by the DPA begins from the moment a person handling personal information acquires it and only ends once that person no longer holds it. (c) The Directive to which the DPA is intended to give effect permits Member States to relieve the press of obligations otherwise applicable to the processing of personal information where that it required to reconcile the ECHR right of privacy with the ECHR right to freedom of expression. (d) Freed of judge-made authority, the DPA provides an individual with a measure of protection against press invasions of personal information privacy, but, because the s 32 exemption does not provide for any balancing of the fundamental right to privacy against the fundamental right to freedom of expression, the measure of protection is less than that provided under Art 8 of the ECHR. (e) The DPA, in articulating: i. ii. iii. iv. degrees of sensitivity of personal information; the uses of that information against which protection is provided; the purposes for which those uses will be relieved of obligations securing the protection, and in adjusting the protection according the sensitivity of the information, offers a sophistication and predictability which is unmatched by the jurisprudence on ECHR-based privacy claims. (f) In reported practice, press invasions of an individuals personal information privacy have mostly been remedied through ECHR-based privacy claims. (g) Judge-made law has substantially reduced the efficacy of the DPA as a means of remedying press invasions of an individuals personal information privacy, possibly to the point that the DPA, so construed, no longer gives full effect to the Directive.
p17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Philip-Coppel-QC-redacted. pdf
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2.7
The result, in Mr Coppels view, is that where journalism is concerned:18 undoubtedly, once youre in section 32 territory, then the protection which is given to an individuals privacy almost entirely falls away. All you have to do is touch section 32 in some way, shape or form and the contest which the Act is supposed to embody between the right of expression, freedom of [expression], and an individuals personal privacy has all been tilted one way.
2.8
In other words, the journalist is made arbiter of the balance, and the balance in turn falls to be made on the basis of matters exclusively within the knowledge of the journalist, including matters inaccessible because of the extensive protection provided for journalists sources. He goes on to argue that s32:19 does not recognise any right to privacy. Its there, its sole objective is to cut away at the right of privacy, and at the end of it, certainly after the decisions of the court, there is nothing left of that right.
2.9
In practical terms, the argument goes, the approach of the courts to the substantive law, coupled with the procedural inhibitions provided in other parts of the DPA (considered below) together with the very low level of damages which the courts have awarded have, between them, atrophied the principles and individual rights in their practical application to the press. As a matter of law, there is more than one way to reflect on the tenor of Mr Coppels arguments. Put at its highest, his case would be that on the current state of the UK authorities, s32 fails to implement the Directive from which it derives, and is inconsistent with the relevant parts of the ECHR to which it is intended to give effect, because the relationship between privacy and expression rights has got out of balance. A proper balance is a fundamental obligation. The UK is therefore positively required to change the law to restore the balance. That is indeed Mr Coppels own contention: that UK data protection law currently fails to implement our obligations, and that Lord Lesters concerns had proved to be prescient.20 Without going so far as that, even if the current balance were within the spectrum permitted by our international obligations, the argument could be expressed in terms that it is at an extreme end of that spectrum, and the UK can as a matter of law, and should as a matter of policy, restore a more even-handed approach, not least given the asymmetry of risks and harms as between the individual and the press. Put at its very lowest, the point could be made that the effect of the development of the case law has been to push personal privacy law in media cases out of the data protection regime and into the more open seas of the Human Rights Act. This has happened for no better reason than the slowness of the legal profession to assimilate data protection law and, in the case of the judiciary, its greater familiarity with (and, he suggests, perhaps a preference for) the latitude afforded by the human rights regime over the specificity of data protection.21 But this, the argument goes, is undesirable because the data protection regime is much more predictable, detailed and sophisticated in the way it protects and balances rights, and significantly reduces the risks, uncertainties and expense of litigation concomitant on more open-textured law dependent on a courts discretion.22 Where the law has provided specific
2.10
2.11
H
2.12
pp24-25, lines 24-7, Philip Coppel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-17-July-2012.pdf 19 p29, lines 3-7, Philip Coppel, ibid 20 pp29-30, lines 21-7, Philip Coppel, ibid 21 pp36-37, lines 25-7, Philip Coppel, ibid 22 p39, lines 3-22, Philip Coppel, ibid
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answers, the fine-nibbed pen should be grasped and not the broad brush. The balancing of competing rights in a free democracy is a highly sophisticated exercise; appropriate tools have been provided for the job and should be used. 2.13 Mr Coppel suggested that the opportunity should be taken to redraft s32 in order better to reflect the balance between freedom of expression and the protection of privacy envisaged both in the Directive and in the ECHR. He suggested two changes in particular. The first is to modify the test for reliance on s32 so that it will be available only where: (a) the acquisition or use of the information is necessary for publication rather than simply being in fact undertaken with a view to publication; (b) there is a reasonable belief that publication would be in the public interest, with no special weighting of the balance between the public interest in freedom of information and in privacy; and (c) objectively, that the likely interference with privacy is outweighed by the public interest in freedom of information. 2.14 The second change is to amend s32 so that it gives exemption from fewer rights and principles, and in particular no longer allows for exemption from: (a) the requirement to obtain and use information in accordance with statute law; (b) the requirement to obtain the information only for specific purposes and not to use it in any way incompatible with those purposes; (c) the requirement for information to be accurate and up to date; (d) the rights of individuals under the Act; and (e) restrictions on exporting the information. 2.15 Mr Coppel provided the Inquiry with an illustrative revised version of s32 to indicate the sort of changes which would need to be made.23 I should make it clear at once that I do not express any view on the drafting suggestions that Mr Coppel makes, nor is it appropriate for this Report to frame recommendations in the form of draft legislation. For that reason, the Reports consideration is strictly limited to the policy objectives underlying Mr Coppels suggestions which are not simply to be inferred from the drafting but as explained by Mr Coppel in his evidence; it would of course be a matter for Parliamentary Counsel in due course to reflect on how any policy recommendations of this nature would best be captured in drafting terms. Considered purely in terms of what it might be desirable to achieve in terms of outcomes by any changes in the law, the underlying rationale of Mr Coppels analysis and conclusions can be stated relatively simply. Firstly, it is to express more clearly the even-handed approach required by human rights law to the balance between individual civil liberties on the one hand, and the public interest in the liberties of the press on the other. Secondly, it is to improve the prospects of law enforcement and the restoration of that balance where the press goes too far in transgressing individual civil liberties. The suggested reforms would seek to achieve these objectives by focusing the mind of the journalist much more explicitly on the balanced judgment he or she has to make in the first place, with a reminder that the journalist is not above the law, and cannot be the sole arbiter
2.16
2.17
23
http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Philip-Coppel-QC-redacted.pdf
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in the end of whether the public has been well-served by his or her actions. In other words, the changes are designed to promote conscious awareness in journalism and accountability to the public. Furthermore, they are intended to do so without imposing any burdens on honest and reasonably conscientious journalism24 beyond what is practicable and workable as a matter of day to day practice. The question is whether these intentions, from which it is hard to dissent, were indeed likely to be achievable along the lines Mr Coppel was proposing. News Internationals objections to Mr Coppels proposals 2.18 News International (NI) made submissions to the Inquiry to the effect that what Mr Coppel suggested was misconceived.25 This part of the Report considers these objections in turn. (a) The fundamental objection 2.19 In the first place, NI raised what it described as a fundamental objection.26 This relates to the proposed narrowing of the exemption in s32 on the basis of its divergence from the broad interpretation given to s32 by the Court of Appeal in Campbell v MGN Ltd.27 It was further argued that the effect of Campbell is that the existing provisions of s32, provided they are widely interpreted, strike the appropriate balance between Article 8 and Article 10. As a matter of law, I do not see that this concern constitutes a fundamental objection to the policy. Mr Coppels submission is precisely that Campbell, in its interpretation of s32, unduly widened an already excessively wide s32 as enacted in the DPA 1998. His argument is that the current s32 is framed in a way that effectively means journalism nearly always trumps privacy and therefore fails properly to implement the Directive. On that basis, the narrowing of the s32 exemption is better understood as returning s32 to its intended remit. It is of course open to Parliament to amend the wording of the exemption in s32 irrespective of the terms of the judgment of the Court of Appeal in Campbell, provided that any amended s32 does not conflict with the underlying Directive to which it is intended to give effect, nor is incompatible with Article 10 or other provisions of EU law. The issue is not whether the policy of the proposed amendments conflict with Campbell, but whether they are necessarily incompatible with Article 10. It is not apparent to me that there is a necessary incompatibility, or that s32 as currently drafted is the least generous formulation from journalisms point of view which is conceivably consistent with the ECHR if, indeed, it is consistent at all. Article 10 is a qualified right, inherently requiring a balance with other rights (including the right to privacy). I do not consider that Campbell can be read in the way that NI appears to contend, namely that a wide interpretation of s32 is necessarily required to give effect to Article 10 and that any narrowing of the scope of s32(1) is necessarily incompatible with Article 10. It must be remembered that the wide construction in Campbell concerned the temporal element of the exemption, i.e. whether it was confined to pre-publication activity or included publication itself. Campbell itself is entirely silent on the need to strike a balance between privacy and Article 10.
2.20
2.21
On the application of s32 to new media journalism, see para 99, Tugendhat J, The Law Society & Ors v Kordowski [2011] EWHC 3185 25 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/08/News-International-Addendum-to-Privacy-LawSubmission.pdf 26 page 4-5, ibid 27 [2003] QB 633
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(b) The objection to a necessity test 2.22 It is argued by NI that the proposed replacement of the test of processing undertaken with a view to publication, with a test of processing necessary for the publication would be inconsistent with authority and unworkable in practice. NI makes the point that it is selfevident that for the s32 exemption to work it must cover, as it does at present, the processing of information which a journalist or editor ultimately decides to leave out of a published article.28 This point was, in fact, squarely addressed by Mr Coppel in oral evidence to the Inquiry.29 The exchange between Counsel to the Inquiry and Mr Coppel went like this: Q. Can we just look at a paradigm case of investigative journalism, that theres a lot of preparatory work before publication. If the journalist can show that all the work is necessary for the publication, then he or she is protected both in relation to the preparatory work and to the publication itself. A. Correct. Q. Is that the correct analysis? A. It recognises that particularly for investigative journalism, in which there may be a long trail leading up to the publication itself and some of those sub-trails may turn out to be fruitless in themselves but are nevertheless necessary in order to explore all the avenues to produce the article itself. That will be captured by my proposed 32(1) paragraph (a). 2.23 The policy intention here would be to tighten the nexus, or causal link, which the legislation requires between the acquisition and handling of the personal information and the ultimate publication but certainly not to the (obviously unworkable) extent that the exemption would apply only to material actually published. The idea would be to protect bona fide research or investigatory work without which publication could not happen, and that would have to apply from the point of view of the work at the time and not with hindsight. But it would not protect dealing in personal information unless it was properly necessary for research and publication. I do not see that that policy aim is either legally repugnant or necessarily unachievable in law and practice. As currently drafted, s32 of the Act requires the Court (or Commissioner) to consider whether the processing is undertaken with a view to publication, and that requires the Court (or the Commissioner) to consider the link between the processing and its ultimate purpose and the publication. Exactly the same conceptual process would be required under Mr Coppels proposals, but more would be being asked of the journalist to demonstrate the necessary link. (c) Replacing the requirement in s32(1)(b) to have particular regard to the special importance of the public interest in the freedom of expression with a more neutral balance, and an explicit balancing test 2.24 The NI submission30 suggests that this would be inconsistent both with Article 10 and s12(4) of the Human Rights Act. Dealing with the latter point first, I do not think that there is any arguable technical inconsistency with s12(4), which is essentially a procedural mechanism,
page 5-6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/08/News-International-Addendum-toPrivacy-Law-Submission.pdf 29 pp43-44, lines 16-7, Philip Coppel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-17-July-2012.pdf 30 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/08/News-International-Addendum-to-Privacy-LawSubmission.pdf
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directing a court when proceedings before it concern journalistic material to have particular regard to the importance of freedom of expression. In the event that a DPA claim engaging s12(4) were before the court, it would operate as a free standing provision and there is no need for the further incorporation of an equivalent provision in s32 in order to give effect to it. Where there are no proceedings before a court, for example where a journalist is considering whether s32 is met, s12(4) has no direct application. 2.25 It may be asked whether the recognition given in s12(4) to the importance of freedom of expression is not a reflection of the more fundamental point in the NI submission, namely that as a matter of ECHR law there is in fact special importance attached to freedom of expression, and beyond that to a lack of constraint on journalism, to which the removal of the formulation in s32 is repugnant. Undoubtedly, there is a very special public interest in freedom of expression, as formulated in Article 10. But it certainly puts the argument very high to say that the existing language of s32 is a minimum imperative required by the ECHR. Indeed, as is apparent, during the passage of the Data Protection Bill, some anxiety was expressed by expert opinion in Parliament to the effect that the pull it exerted on the scales balancing the public interest in freedom of expression as against other public interests (including privacy) was itself not compatible with the language of the Convention. I do not consider, as the NI submission seems to suggest, that the current drafting of s32 can be held up as the only and immutable expression of the balance between personal information privacy and the value in a free society of journalistic (or artistic or literary) endeavour. An expression of that balance in UK data protection law, which occupies a more central zone of the margin of appreciation, and which is expressed in language more close to that of Articles 8 and 10 themselves and which encourages those exercising precious freedoms to be mindful in doing so of other peoples precious freedoms is something which it seems to me to be both possible and desirable to achieve. None of the provisions of s32 at present contains any explicit recognition of the wider context of public interest within which journalism must fairly operate. Mr Coppels suggestion of introducing an explicit balancing test seems to me to be both truer to the letter and spirit of the Convention, and an important and necessary encouragement to mindfulness where journalism handles, as it often must, private information. (d) Taking individual subject access rights out of the automatic exemption provision 2.27 The NI submission describes this as perhaps the most worrying of Mr Coppels proposals.31 The right of individuals to know what information is held about them is of course at the heart of the data protection regime, and a very fundamental privacy entitlement in its own right. But its application in the modern world of journalism would be a change of some significance, and it is right that the idea should be considered with great care. The NI submission makes a number of points about the idea, some of which certainly need to be taken very seriously. It is, for example, argued that it would seriously undermine the protection of sources. Journalists sources enjoy a considerable degree of legal protection, not least under Article 10 of the Convention.32 Any change to that protection would have to be considered most carefully, and in its own right rather than simply as the by-product of another policy. Sources (although not in a way specifically addressed to journalism) are, however, given considerable general protection by the data protection regime. That is because where access to ones own data would necessarily involve the disclosure of information about a third party (including a
2.26
2.28
31 32
page 6-8, ibid Appendix 4
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source), the privacy entitlements of that third party have to be respected as well as ones own. In conferring the right of access to ones own information, s7 of the existing DPA, therefore, makes this further specific provision: (4) Where a data controller cannot comply with the request without disclosing information relating to another individual who can be identified from that information, he is not obliged to comply with the request unless (a) the other individual has consented to the disclosure of the information to the person making the request, or (b) it is reasonable in all the circumstances to comply with the request without the consent of the other individual. (5) In subsection (4) the reference to information relating to another individual includes a reference to information identifying that individual as the source of the information sought by the request; and that subsection is not to be construed as excusing a data controller from communicating so much of the information sought by the request as can be communicated without disclosing the identity of the other individual concerned, whether by the omission of names or other identifying particulars or otherwise. (6) In determining for the purposes of subsection (4)(b) whether it is reasonable in all the circumstances to comply with the request without the consent of the other individual concerned, regard shall be had, in particular, to (a any duty of confidentiality owed to the other individual, (b) any steps taken by the data controller with a view to seeking the consent of the other individual, (c) whether the other individual is capable of giving consent, and (d) any express refusal of consent by the other individual. 2.29 It is an important, if technical, point to note that the subject access right is a compound right, including not just a right of access to the information, but a right to know whether information is held at all about one. So if even to confirm whether information is held would disclose a source, s7 makes provision for an answer which will neither confirm nor deny it. I do not express a concluded view as to whether the existing provisions of the DPA are a complete answer to the challenge that introducing at least the possibility of a right of subject access has to be reconciled with the need to protect journalists sources. I simply observe that it is not apparent to me that the importance of protecting journalists sources cannot be captured in suitable amendment to these provisions, should any be needed. The more fundamental point is that there does not seem to me to be an argument from first principles that the protection of journalists sources necessitates a complete and blanket dis-application of the subject access right in all circumstances. And if it is not necessary to disapply a fundamental privacy right in all circumstances, it is necessary not to. It is further argued by NI that there are other reasons why it would be necessary to take a blanket approach to this right in the world of journalism. These are: (a) the need for legitimate investigative journalism to be able to operate covertly, and over a period of time, without the object of the investigations being able to find out that the press are interested in them;
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(b) the burden on newspapers resources, particularly given the motivation of individuals to find out what is being held about them at regular intervals; (c) it would spell the end of the exclusive if individuals could get hold of a possible story and provide it on their own terms to another newspaper or indeed take to the internet with their own pre-emptive version; and (d) that it fails to respect the balance required between Article 10 and 8 more generally. 2.32 Care must be taken in this context to avoid rhetorical elision between matters of commercial convenience or profit, on the one hand, and a challenge to the current business model of the newspapers so fundamental as to amount to an abridgement of free speech, on the other. With the first of the four points noted above, it is possible to readily to agree. With the second and third, there are issues of degree. With the third in particular in relation to the question of exclusive stories, the business model may well be under rather more acute threat from the internet generally and the highly ephemeral nature of exclusivity once any publication takes place, than from any legislative change relating to the entitlement of individuals to know whether information is held about them. Similarly, the issue is to a degree less concerned with the exercise of freedom of expression than with the abridgement of the rights of others to receive and impart information. In reality, the key question, therefore, is the fourth, of which the first is an aspect. Does a fair balance between Articles 10 and 8 prohibit any possibility of subject access to journalistic material in all circumstances? I am not persuaded that it does. It is evident that a fair balance would require an entitlement for a subject access request to be refused to any degree where to comply with it would compromise the protections envisaged by Article 10. But I am inclined to think that this could properly be done on a case by case basis rather than by wholesale ouster of the right. This point needs to be borne in mind: a significant aspect of the importance of the subject access right lies in the ability it gives individuals to test for themselves whether their information is being dealt with lawfully and in accordance with the data protection regime (including, of course, whether the information is accurate). That includes being able to test whether any exemptions are being properly claimed (although not to the extent that properly claimed exemptions are themselves thereby compromised). The complete exclusion of subject access from all journalistic activity removes a principal check on its lawfulness. Who then is to perform that function? The obvious answer would be the Information Commissioner, but that answer in itself takes us to a second area which Mr Coppel has identified as problematic.
2.33
Civil law enforcement: journalism, access to justice and the powers of the Information Commissioner
2.34 As well as the substantive exemptions provided by s32, the DPA creates a number of special procedural provisions which apply whenever it is claimed that personal information is being acquired or used for journalism. Their effects are both very significant for the purposes of the Inquiry and also very complicated. Their very complexity adds to their impact. It is necessary to engage with and unravel the detail of these provisions in order properly to understand and address their effect.
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The relevant provisions are identified in this way by Mr Coppel:33 Once a data controller claims that the personal data are being processed for a special purpose (i.e. journalism, artistic or literary purposes) or with a view to the publication by any person of any journalistic, literary or artistic material: (a) the Commissioner cannot ordinarily serve an enforcement notice or an information notice (s 46); and (b) where a person has brought a claim under the DPA seeking a remedy for breach of any of the data subjects rights (see 37-45 above), the Court must stay the proceedings until there has been a determination under s 45 of the data controllers claim (s 32(4)). Where the proceedings are so stayed or the Commissioner has received a s 42 request for assessment, he may serve a special information notice (s 44). The object of the notice is to enable the Commissioner to carry out the s 45 determination. A data controller has a right of appeal against a special information notice (s 48). Under s 45(1), where it appears to the Commissioner that the personal data are not being processed only for a special purpose or are not being processed with a view to the publication by any person of any journalistic, literary or artistic material, the Commissioner may make a determination to that effect. A data controller has a right of appeal against the determination. Once the determination takes effect, the Commissioner may serve an information notice. And, if a court gives leave, the Commissioner may serve an enforcement notice. If the Commissioner decides otherwise, proceedings for breach of the DPA may be stayed indefinitely
2.36
Broadly speaking then, the Information Commissioner cannot exercise his regulatory powers in relation to the press (and a court cannot decide an action brought by an individual for breach by the press of the rights contained within the data protection regime) unless the Information Commissioner has first made a formal determination that the newspaper is not, in relation to given personal information, using it wholly for the purposes of journalism. The only power he can use to help him make that determination is the power to issue a special information notice for the purpose. And he cannot issue one of those unless either litigation is already on foot or he receives a specific request from a complainant. Where he does issue a special information notice, the newspaper can appeal it. And if he does finally make a determination the newspaper can appeal that too. Any enforcement steps he is then able to take, whether investigative or compliance, each brings its own appeal rights. Mr Coppel explained some of the cumulative practical impact of these provisions:34 It results in a disapplication of the power to serve an enforcement notice thats the first important thing that it does and then secondly, where an individual has brought a claim, a section 4(4) claim for breach of statutory duty through the DPA, then the court must stay those proceedings until there has been a determination under section 45, and section 45 is a special procedure relating to the so-called special purposes, ie journalism, literature and art, to see whether in fact that is the case. In practice, what happens is that it becomes so convoluted the individual disgruntled has commenced proceedings under section 4(4). If they if the point is taken that
2.37
pp11-12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Philip-Coppel-QCredacted.pdf 34 pp20-21, lines 24-25, Philip Coppel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-17-July-2012.pdf
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these are special purposes, then a satellite set of proceedings is effectively launched, namely the section 45 one. That, if one ever gets to the end of it, reaches its end, it might come up with a conclusion. If the conclusion is in favour of the individual, then they resume their claim, by which time, of course, matters have marched on significantly and it may be of cold comfort, any such relief [they may quite possibly have lost interest in living by then] and particularly if one realises that at the end of it all one is going to get like, for example, Catherine Zeta Jones, 50, one can well understand why interest might be a little bit diminished. 2.38 During the course of the Inquiry, it has frequently been asserted that most or all of the evident problems with the culture, practices and ethics of the press would be solved if the existing law were to be properly enforced. Where press compliance with the legal requirements of the data protection regime is concerned, enforcing the civil law is a two-stage process. It must first ensure that the boundary between exempt and non-exempt activity in relation to dealings in personal information is properly observed by the press, and this is a point which applies wherever that boundary is drawn by the substantive law. Secondly, it must also ensure proper compliance with the regime where exemptions do not apply. Law enforcement in these respects takes place in two different ways. First, it is by individuals bringing cases in the courts, and, secondly, by the exercise of his powers by the Information Commissioner. Both as regards litigation procedure on the one hand and as regards the assertion of the powers of public authorities on the other, there are already significant inhibitions in the general law which impact on the possibility of proper law enforcement in respect of the press because of the balance which must be struck between the public interest in law enforcement and the public interest in the protection of journalists sources. The additional procedural thicket which the DPA erects in the way of anyone attempting to find out whether the press is complying with the law, that is to say whether their activities are genuinely covered by exemptions and if not whether they are complying with what is legally required of them, is for practical purposes near-insuperable. The press, so this analysis goes, is effectively beyond the reach of law enforcement. In that regard, the legal regime can be and is disregarded for any practical purposes. Whether what the press are doing with peoples information is or is not specifically exempted from the regime hardly matters in practice since the question is effectively prevented from arising. Mr Coppel suggested that this aspect of the problem should be addressed in two ways, that is to say by removing the elaborate tangle of red tape which stops the Information Commissioner doing his job in relation to the press, and by providing more straightforward access to justice for individuals. Powers of the Information Commissioner 2.41 Here, Mr Coppels proposal is very straightforward: the DPA should be amended to repeal the entirety of the complex special regime limiting the Information Commissioners powers in relation to the press. Specifically, he recommends:35 removing the provisions for special information notices (s 44), special purpose determinations (s 45) and special purposes restrictions (s 46), thereby aligning the DPAs enforcement procedures as they apply to the press with those that apply to others, i.e. the ordinary provisions for enforcement (s 40), assessment (s 42) and information notices (s 43).
p18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Philip-Coppel-QC-redacted. pdf
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These provisions of the DPA are highly redolent of a policy context in which the self-interest of the press was a powerful advocate, rather than one in which law enforcement was an active concern. Given the specificity and elaborate nature of the provision made for testing the compliance of the press with the law, however, this much can be said: it cannot have been the intention of the legislation that the compliance of the press with the law should, in reality, be incapable of being tested in practice. No doubt concerns were vocally expressed that legitimate journalism should be able to go about its business without interference or chill from overzealous regulators or nuisance litigation. But there is no policy intention on the face of the legislation that it should be impossible, in the usual ways, to establish whether the journalism was in fact legitimate in the first place. Such an intention would have been very simple to express legislatively although it would, of course, have been incompatible with the spirit and letter of the Directive. However wide the boundaries of an exemption are set, those boundaries have to be given some real meaning. Making those boundaries inaccessible, and the question on which side of them any activity falls effectively incapable of being answered, strips those boundaries of meaning. The risks of applying the ordinary regime of information and enforcement notices to the press are capable of being overstated. An information notice could not be issued unless the Commissioner reasonably required any information for the purposes of determining whether the press were complying with the law. Similarly, an enforcement notice could not be issued unless the Commissioner was satisfied that the press had contravened or was contravening the law. In each case, the Commissioner would have to bear in mind any genuine risk to freedom of expression. Each measure, if deployed, has an appeal mechanism through which its compatibility with freedom of expression could readily be tested, case by case. It is not my view that the mere existence of the possibility of law enforcement measures of this sort would itself be an improper inhibition to journalistic activity, nor that the press would be slow to understand and make use of the sort of procedural safeguards which the standard data protection regime provides. None of this is of course intended to give any encouragement to the idea of over-zealous reliance by the ICO on formal powers. As successive Information Commissioners have repeatedly emphasised, in general, the first recourse of a regulator with concerns about compliance should always be to seek to resolve matters informally and cooperatively. But it has not been my perspective that over-zealous recourse to formal powers has been a major concern about the way in which the ICO has engaged with the press and there are, in any event, plenty of inhibitions in law and practice to any such tendency. On the contrary, it appears that the most pressing concern is the need to address the extent to which the ICO is shy about performing its proper role in relation to the press as a member of its field of regulation, not least by addressing the evident cultural inhibitions to doing so created by the DPAs complicated procedural regime. If the ICO has entertained a view that it is somehow unable to apply the law to the press, that it is not really supposed to do so, the process provisions are likely to have been a significant encouragement to that view, however overstated that view may be. From the point of view of legitimate journalism, it is right that the ICO should not interfere or over-regulate. It is also right that journalism should be judged primarily by what it prints rather than be held to account at the newsgathering stage. A theme of this part of the Report, however, is that this does not mean that blanket exclusion from regular law enforcement measures is the only, or a very sensible, response. It is my conclusion that it is a part of the culture, practices and ethics of some sections of the press that there is a sense of comparative impunity and, in the main, of being beyond the reach of the law. This has not been in the public interest, and needs to be rebalanced by a greater sense of awareness of the law and what is
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2.44
2.45
the continuum between the constraints of the law and aspiration towards good practice. The existing procedural provisions of the DPA in relation to the press appear to be an unnecessary and unwelcome inhibition to making progress towards that goal. Access to justice 2.46 In general, the DPA provides36 for individuals who suffer damage as a result of breach of the legal requirements of the regime to be entitled to financial compensation from the person or organisation responsible. It is a defence in such proceedings for the latter to show they had taken reasonable care to try to act in a way that is compliant with the law. If any individual has suffered damage, compensation is also payable for distress. Where, however, the contravention relates to acquiring or using personal for the purposes of journalism, literature or art, compensation is payable for distress alone, without the need to prove physical damage. This is in recognition of the fact that the unlawful widespread public dissemination of someones personal information is capable of having a distressing impact in its own right; this is the impact about which very many of the witnesses before the Inquiry have eloquently spoken. In practice, however, the way that the courts have interpreted this entitlement to compensation has been very limiting indeed. As a result, claims are rarely successful, and even when successful have resulted in very small awards.37 At its root the problem is that the courts have been reluctant to award compensation for anything other than measurable financial loss caused by the breach of the regime. Nothing, in other words, is awarded for the distress in its own right, but only if it has occasioned economic loss. But by its nature, the subject matter of the regime, that is to say privacy, is unlikely to produce circumstances in which breach straightforwardly causes pecuniary loss. The harm done is the invasion of privacy itself.38 In other areas of the civil law, the courts have solved this problem by evolving a tariff of compensation to be paid for non-pecuniary loss. The best example is in relation to compensation for pain, suffering and loss of amenity in personal injury case. A more recent (and perhaps more relevant) illustration is the award of damages for breach of contract where holidaymakers have been let down by travel companies or holiday operators. The whole point of the contract was the pleasure of a holiday with the result that compensation will be payable for the disappointment. On the face of it, the inability of victims of data protection breaches to obtain compensation for distress in its own right is an anomaly for a regime whose principal purpose is to safeguard individuals from unlawful intrusion into their private lives. The practical problem facing any attempt to address that lacuna, however, would be how to put a price on privacy in the way that the courts have evolved tariffs of compensation in other areas of immeasurable psychological or emotional harm. It must immediately be acknowledged that this is an issue which is relevant to activities in relation to private information which go beyond journalism, and beyond public dissemination of information in breach of the data protection principles. Damages for non-pecuniary loss in
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2.48
H
2.49
2.50
http://www.legislation.gov.uk/ukpga/1998/29/section/13 pp15-17, lines 21-1, Philip Coppel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-17-July-2012.pdf; p9, para 42, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Submission-by-Philip-Coppel-QC-redacted.pdf 38 pp15-16, lines 25-6, Philip Coppel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-17-July-2012.pdf
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privacy cases is a potentially large subject in its own right, and one which has an extremely large and detailed context in the law of damages more generally.39 On the other hand, as indicated above, the DPA makes special provision for compensation for distress unlawfully caused by the press although this is a provision to which the courts have not in practice given substantive effect. 2.51 Mr Coppel tested the issue with the example of the medical records of an individual being published in a newspaper in breach of the DPA, that is to say, unfairly and without legitimate public interest justification.40 To that example might be added the example of the dissemination of intimate sexual details or nude photographs, again, for the purposes of the argument, unfairly and without legitimate public interest justification. Mr Coppel suggested: That, it seems to me, is a fundamental breach of what the Act is there to protect. Should the measure of recompense be simply how much money the individual may lose as a result and if none, should the individual be left to endure any amount of distress and personal devastation uncompensated? The DPA has been amended in recent years to make provision for the Information Commissioner to be able to impose monetary penalties, including in cases of this sort.41 But monetary penalties of course, while they may have a deterrent or punitive effect, still leave the victim uncompensated. Mr Coppels own suggested solution has two elements. First, the Information Commissioner should be empowered to set a tariff of financial solace for breaches of the data protection principles, referable to the duration, extent, gravity and profitability of their contravention, such amounts to be in addition to amounts for damage and distress resulting from the contravention and to be followed by the Commissioner and the Courts. Secondly, a wronged individual should be provided with the choice of an alternative system to claim the tariff only, with no provision for damages, legal costs or fees, such a system to be administered by the Information Commissioner.42 Within Mr Coppels analysis and conclusions, there are proposals that are specifically directed to the law relating to data protection; others have far wider ramifications into the law of damages. As for the proposed way forward in relation to the DPA, I accept that, at their heart, they reflect a recognition that changes need to be made in order to provide a response to the demand repeatedly expressed for the law to be properly enforced in relation to press misconduct and for individuals to have proper access to ways in which they can enforce their rights. More specifically, in relation to the special enforcement regime provided in the 1998 Act in relation to the press, there are good grounds to conclude that it has had an unintended and damaging effect on the ability of the ICO to perform its functions. Exceptionally complex and largely unworkable in practice, it appears to have had a chilling effect on reasonable law enforcement and, equally, to have a high risk of impacting unfairly on individuals. In my judgment, Mr Coppels view is correct: its removal would promote the overall public interest and a balanced improvement in the culture, practices and ethics of the press in its approach to personal information.
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This debate might be influenced by the level of damages being agreed in the phone hacking litigation being brought against News Group Newspapers Ltd in relation to the News of the World 40 p48, lines 1-18, Philip Coppel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-ofMorning-Hearing-17-July-2012.pdf 41 ss55A-E, http://www.legislation.gov.uk/ukpga/1998 42 p18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Philip-Coppel-QC-redacted. pdf
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In reaching that conclusion, I am very conscious of the need to ensure that legitimate journalism is not unduly impeded by attempts at pre-publication law enforcement on the one hand, albeit at the same time that individual liberties are not unduly stripped of their content by being rendered wholly unenforceable before publication (and then to be defeated by the act of publication) on the other. It is my provisional view that this difficult, but essential balance, is one which can and must be performed on a case by case basis by the ICO in considering the exercise of its powers, and that it is not one for which it is necessary or appropriate to attempt to make further provision by law. If, however, it were thought desirable to do so, it would perhaps be possible to preserve expressly in the Act the principle that, in considering the exercise of any powers in relation to the press or other publishers, the ICO should have special regard to the obligation in law to balance the public interest in freedom of expression alongside the public interest in upholding the data protection regime. Built into this balancing exercise should be a requirement on the ICO, when considering the exercise of any of its powers, to have regard to the fact of membership of an accredited press regulator by the relevant title: this should be capable of establishing the proposition that the title subscribes to recognised and approved standards of conduct which are, themselves, enforceable. The proposals for adjusting the boundaries and operation of the press exemption in s32 is a more difficult exercise. Although I am minded to the view that there is, indeed, an issue about compatibility, I do not consider that it is necessary for me to resolve whether there is any incompatibility between the provision as interpreted by UK courts and the UKs European and international obligations. What I am, however, clear about is that there is room within the latitude afforded by those obligations for a fairer, more even-handed balance, and that improvement in that respect is, both as a matter of both law and policy, desirable. I therefore recommend that the policy represented by the suggested revisions to section 32 of the DPA should be given effect to by suitable amendment to the Act. In doing so, I consider that particular attention should be addressed to one area where further refinement of that policy seems to me to be desirable. The removal of the blanket exemption from the fundamental right of subject access currently provided by s32 seems to me to be right for the reasons considered above. But there are special considerations relating to the exercise of a right of this nature in relation to the press to which careful attention needs to be paid. It remains necessary for the right to be balanced against the special protections afforded by the law to journalists sources. That protection is not absolute as the law stands, but it is extensive. On the face of it, the existing general limitations on the subject access right which are designed to safeguard third party information do appear generally apt to follow the existing (important) protection for journalists sources. If it were thought that there was any doubt about the matter, however, that doubt should be resolved by a provision to the effect that the right of subject access is not intended to displace the general law on the inaccessibility of journalists sources. Turning to the question of damages, I do not consider that it is appropriate for the Information Commissioner to be setting a tariff of financial solace for breaches of data protection or why this should be different from damages for distress (which might themselves be linked to damages for breach of other privacy rights). The proper place for the assessment of damages (or non pecuniary compensation) is allied to the consideration of damages across this area of the law. I return to this topic when dealing with the civil law.43
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In making these recommendations, I accept that the current state of the legal framework in relation to the ICOs civil law enforcement powers goes some way to explain the indications of reluctance by the ICO to take an active, or any significant, interest in the formal exercise of their regulatory functions in relation to the press. I do not, however, accept that as a complete explanation. In reality, there is a lack of evidence that the ICO has, over the years: (a) (b) regarded the symptoms of deficiencies in the culture, practices and ethics of the press in relation to personal information as a serious operational priority; shown a will to test in practice the powers and procedures conferred by law specifically for the purposes of ensuring compliance with the legal obligations of the regime by the press however attenuated those obligations and however difficult those procedures; or drawn attention politically to any perceived shortcomings in the legal framework in this respect.
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This raises questions about a possibly deeper reluctance to accept an active role in relation to the press. Neither do I accept that other operational priorities must be accepted without more as an explanation for ICO inactivity in an area which the very existence of this Inquiry demonstrates to be a matter of acute public concern. 2.63 While recommending changes to the law, I do not intend to encourage the idea that the ICO should continue to take no steps to address the culture, practices and ethics of the press in the meantime. I therefore additionally recommend that the ICO should take immediate steps to prepare, adopt and publish a policy on the exercise of its formal regulatory functions in order to ensure that the press complies with the legal requirements of the data protection regime. I explain elsewhere, it is also my recommendation that in future such a policy should expressly provide that membership of an effective and independent self-organised system of standards regulation should be able to be taken into account by the ICO in contemplating the exercise of those functions. I further recommend that the ICO take immediate steps to publish advice aimed at individuals concerned that they are or may have been victims of unlawful use of their personal information by the press. That might, for example, take the form suggested above, of enabling individuals, on application to the ICO, to obtain confirmation in so far as the office is able to offer it of whether they can be identified among the Motorman victims, and if so in relation to which title or titles, and to obtain assistance if necessary in making a suitable request to those titles. It might also take the form of engaging with victims representative organisations to those ends.
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Promoting good practice: journalism and ss51-52 DPA

2.65 In considering the role of the ICO in relation to the conduct of the press in connection with the handling of personal information, it is sensible to start with ss51-52 of the DPA.44 These are among the simpler and more straightforward aspects of the application of the data protection regime to the press and it has not been suggested that the provisions should not be taken at other than face value. In short, they provide that: (a) the ICO has a positive duty to promote the following of good practice in relation to the handling of personal information by the press, no less than in the case of any other business;
44
http://www.legislation.gov.uk/ukpga/1998/29/section/51; http://www.legislation.gov.uk/ukpga/1998/29/section/52
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the ICO also has a positive duty to promote the observance of the legal requirements of the DPA by the press, in so far as they apply; the powers of the ICO in relation to the dissemination of public information and industry guidance apply in the context of the press industry; the powers of the ICO to encourage sections of industry to develop and apply codes of good practice in the handling of personal information apply to the press sector; the duty of the ICO to make an annual report to Parliament on the exercise of its functions includes a power to cover press aspects in that report; and the power of the ICO to make special reports to Parliament includes the ability to make special reports about the intersection between the data protection regime in practice, and the culture, practices and ethics of the press in relation to personal information (which provision provided the basis for the laying of the What Price Privacy? Reports).
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As a matter of ordinary public law, the exercise of any of these powers has to be kept under review, considered within the overall framework and purposes of the data protection regime as a whole, and both reasonable and proportionate in all the circumstances. On the face of it, relevant considerations in that context would include matters such as the extent of objective evidence of poor practice along with the nature and seriousness of that poor practice and levels of public concern. Evidence of widespread ignorance of the requirements of law and good practice (whether on the part of industry or individual) would be particularly relevant, especially if that ignorance were related to the genuine complexity of those requirements. As an expert regulator, the ICO would then be in a unique position to address the problem with explanation, education and support. Of course, the exercise of any of these powers in relation to the press would also have to take into account the wider legal context, including respecting in full the balance to be struck both in law and in policy between the liberties of the individual and the vital requirements of a free press. That wider context would certainly affect the manner in which the powers were exercised, and the content of any guidance, codes, reports and so on. But it does not on the face of it appear to constitute a limitation on the existence or potential value of these powers in relation to the press. For my part, I do not see any defect in these provisions which could limit their ability to contribute to the promotion of good standards of behaviour in the press in the handling of private information: none has been overtly suggested. There has been no suggestion, for example, that throughout the period in which Mr Thomas was trying to encourage the PCC to promote good practice in the industry, including by means of its own Codes and guidance, he was in any way inhibited as a matter of law by the legislation governing the ICO from acting in those areas or fulfilling those requirements himself. If there were any real doubt in the matter, legislation could put its application to the press beyond doubt. Indeed, it would also be possible to introduce new positive duties in relation to the press, for example to insert positive duties into the legislation as follows: (a) into s1(3) for the ICO, in consultation with the industry and the public, to exercise the power to issue comprehensive guidance to the press on good practice in the handling of personal information; into s51(2) to exercise the power to issue comprehensive guidance to the public on their individual rights in relation to the obtaining and use by the press of their information, and how to exercise them; and
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into s52 to include in the ICOs annual report to Parliament an account of its perspective on press compliance with law and good practice in the handling of personal information and to draw special attention to any concerns.
Having said that, I should make it clear that I do not see any reason to doubt that the ICO could exercise his powers in these ways as the law presently stands. 2.70 I do not accept that there is any reason in law to explain the failure of the ICO to use these powers by taking active steps to address the need for improvement in the standards of the practices of the press in relation to the handling of personal information. Successive Commissioners have emphasised that this drive for good practice function is the cornerstone of the entire regulatory regime. Unfortunately, evidence to justify serious concern about the standards of the press in this respect has been available and well publicised: an informed, well-targeted, proactive and engaged approach to the problem might have made a real difference. It is a matter of regret to record that the failure by the ICO to address this issue must be regarded as a regulatory opportunity missed. In those circumstances, I recommend that, in discharge of its functions and duties to promote good practice in areas of public concern, the ICO should take immediate steps, in consultation with the press, to prepare and issue comprehensive good practice guidelines and advice. This should include the articulation of principles and standards dealing with the acquisition and use of personal information. I hope and anticipate that the press will actively cooperate in the preparation and implementation of such guidelines and advice, not least so as to ensure that its Article 10 rights are fully recognised and reflected in the work. In those circumstances I would expect the guidelines and advice to be prepared and implemented no later than six months from the date of this Report. I also recommend that the ICO take steps to prepare and issue comprehensive guidance to the public on their individual rights in relation to the obtaining and use by the press of their information, and how to exercise them. To demonstrate the effect of this guidance, the ICO should include regular updates on the practices of the press in relation to handling of personal information in its annual reports to Parliament.
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Criminal Law: the sentence for breach of s55 DPA

2.73 The history of the campaign started by Mr Thomas to amend s55 DPA to introduce the possibility of custodial penalties on conviction (by providing a statutory maximum of two years imprisonment) has been set out. The position is that the Criminal Justice and Immigration Act 2008 introduced that amendment, but the changes had not been brought into force. A statutory instrument, to be laid before Parliament by the Government, is required. As a matter of principle, the existence of uncommenced legislation on the statute books is potentially problematic. The power of the Secretary of State to commence legislation must, by law, be kept under review, so it always remains a live issue. As described elsewhere,45 the legislative process by which the maximum penalty was increased and the defence to the substantive offence available to journalists broadened, with both changes left uncommenced, was strongly indicative of a political compromise, designed as much as anything to quieten two opposing campaigning voices rather than as a response to a thought through policy analysis for which there was genuine empirical evidence. It is not surprising to find that the delicate balance of the compromise has not proved something which succeeding Secretaries of State for Justice have been in a hurry to revisit.
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Recent history of the ICOs s55 campaign 2.75 In October 2009, the Government published a consultation paper in seeking views on the commencement of both parts of the changes.46 Responses were sought by January 2010, with a view to assessing the possibility of activating the changes in the April of that year, at the same time as it was proposed to confer on the ICO enhanced powers in relation to civil penalties. It does not appear that the responses to that consultation exercise have been published by the Ministry of Justice. However, the press has consistently opposed the commencement of the provisions and the then Government did not bring the new provisions into force in what were the final weeks before the General Election. Neither has the current Administration advanced the position: a decision is now said to await this Report. Successive Information Commissioners have continued to press for the increased penalties to be brought into force. Mr Thomas repeated his case in his first witness statement to the Inquiry:47 The main reform, in my view, should be an immediate ministerial Order to activate the prison sentence for s55 offences. The public controversy of the last two months, and public outrage at press misconduct, make the case for that reform more pressing than ever. Even if there has been improvement in press conduct since 2006 there is still no guarantee that this will remain indefinitely and I understand that illegal activity remains rife in other sectors. A strong deterrent is needed and it is vital that a clear signal should be sent that s55 offences are not trivial or technical. His exasperation was evident in his oral evidence to the Inquiry:48 I cannot for the life of me understand why the Government has now not activated that provision. I am very disappointed as an individual now that still, despite all the material that has surfaced in recent months, the order has not been activated. It would be a very simple matter to bring that into force now, and my broad understanding back in 2008 was that it would only be a delay of six months or so, but that has not yet materialised. 2.77
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The ICO campaign on s55 has continued under Mr Graham, but with a perceptible change of emphasis. The ICO submitted evidence to the consultation on activation of the new provisions at the end of 200949 but, by this time, Motorman was presented as somewhat distant history. The ICO submission focused instead on examples, including half a dozen case studies, of the blagging of personal information by deceit in the routine criminal contexts of unscrupulous debt-collection, commercial espionage and profiteering, and personal grudge and intimidation. Judicial sentencing remarks in cases prosecuted are cited to the effect that the sentence maxima on s55 conviction did not allow a sentence to be passed commensurate with the criminality of the behaviour. An example is given of ICO investigators executing a search warrant:
http://webarchive.nationalarchives.gov.uk/20111121205348/http://www.justice.gov.uk/downloads/consultations/ data-misuse-increased-penalties.pdf 47 p15, para 48, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/First-Witness-Statement-of-RichardThomas-CBE.pdf 48 pp47-48, lines 15-5, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Afternoon-Hearing-9-December-2011.pdf 49 pp1-10, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-CG6.pdf
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They were greeted at the premises, by an individual who had a previous conviction for a section 55 offence, with the following comments. Whats the maximum fine for this, 5000? I will write the cheque out now. At the other end of spectrum, Mr Graham explained in evidence that he wanted to:50 deal with the problem of the courts being limited to fines and then dealing with people who are of limited means and can only be fined about 100, and the court doesnt have the option of doing anything about a community sentence or tagging or curfew or whatever else might be involved. Its just the going rate is 100. It happened again the week before last. Its nothing. 2.78 Other general points are made in the ICO submission to the consultation exercise about the consequences of s55 not being capable of attracting a custodial penalty. Two points in particular should be noted: At present the offence of unlawful obtaining etc is not a recordable offence. It is not therefore recorded on the Police National Computer. Fingerprint impressions, DNA samples and descriptive details are not currently taken from those individuals who are prosecuted by the ICO for the section 55 offence (a descriptive form contains personal information relative to the accused person, for example, ethnic appearance, build, shoe size, glasses, hair, facial hair, marks, scars and abnormalities etc). If the penalties for this offence are increased to imprisonment the offence will become a recordable offence. This will not only underline the serious nature of the offence but will ensure that those convicted carry a meaningful criminal record. The criminal record is both a matter of deterrence in its own right and also of assisting detection. The second point made is that, with a custodial penalty available, s55 crime could fit within the framework of the European arrest warrants; data crime is an easy cross-border activity, and the availability of simple extradition procedures would overcome jurisdictional inhibitions to criminal enforcement. 2.79 Subsequently, including in an update report to the Ministry of Justice in August 201151 and in the evidence that Mr Graham provided to the Inquiry, the ICO has sought to turn the spotlight in relation to s55 definitively away from the press altogether. As discussed above, that is articulated by way of an assertion that the practices of the press are no longer an issue in relation to information blagging. From the perspective of the ICO, however, given the history of the s55 campaign, there is no doubt a degree to which the press are simply seen as the principal inhibition to the commencement of these provisions. The policy is now to seek to neutralise the hostility of the press and emphasising that the policy aim to be achieved now has little to do with their activities no doubt has that in mind. Mr Graham illustrated this in his evidence when he said:52 In fact, I went to the Society of Editors conference in 2009 and said: its so not about you. Its about NHS workers, its about private investigators, its about bank clerks, and its frustrating not to be able to deal with that real challenge, which the Information Commissioners office is concerned to deal with, because were constantly met by the press saying, This is terrible, the sky is falling, the sky is falling. It really isnt.
pp54-55, lines 25-7, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-26-January-2012.pdf 51 p7, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-CG7.pdf 52 pp7-8, lines 20-3, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-26-January-2012.pdf
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That the tension between the ICO and the press on the s55 issue is still very much a current source of heat was vividly illustrated by exchanges between Mr Graham and Mr Rhodri Davies QC, asking questions on behalf of News International. This exchange is set out at some length here because it illustrated in microcosm, and in many ways can be regarded as the summation of, the long years of debate and lobbying on this subject, in Parliament, in successive Governments, and in other public fora. Mr Davies put it to Mr Graham that, if the behaviour of the press was not itself the current operational focus of the campaign, nevertheless:53 The political problem, if I can call it that, that you have in getting the existing legislation into force is what we might call the perceived effect on the press. Its not the bank clerks who are campaigning against this; its the perceived effect on the press which is your problem? A. My problem is the press. Its not the perceived effect on the press, its the behaviour of the press, worrying away at a penalty designed to deal with a problem which they say doesnt apply to them, and I say, If it doesnt apply to you, get out of the way. Q. Isnt the way through this, which might perhaps satisfy both parties, simply to exempt from the threat of a prison sentence anyone who is acting for the special purposes of journalism, artistic or literary matters, using the phraseology in Section 32? A. How much of a good deal do you guys want? Excuse me, sir, for being heated about this, but you fought everyone to a standstill back in 2006/7. You did it again in 2009/10. Youve got so many privileges and exemptions. Its perfectly possible for a journalist to do a decent job legally. There is Section 78 [of the Criminal Justice and Immigration Act 2008] on the statute book, applying the reasonable belief of the journalist that what they were doing for publication was in the public interest. Its going to be very difficult for anyone to strike that down, but there are some people who believe that thats more generous to the press than really should have been the case, but that was the deal. Now, if I understand it, youre sort of coming back for more - on behalf of your clients. Q. What Im trying to do, Mr Graham, is to point out a route through the problem, or one that bypasses the Gordian Knot, and Im not quite understanding why this solution is not acceptable to you. A. Well, this isnt a negotiation about these things, but it sounds to me as if the representatives of the press want to be somehow above the law. Surely a free press operates within a framework of law, and a vibrant and healthy press, challenging those in authority and doing the job that it should be doing and the job that I joined the profession to do, operates within the law. Yes, okay, you sometimes have to apply the dark arts to get the story, and then youre accountable for it. And if youre really in trouble, thats the mitigation that you put to the court. But we cant keep having more and more carve-outs and reductions and special cases, surely. Q. The point is, Mr Graham, that prison sentences do have a more chilling effect than the lesser sanctions available to the court LORD JUSTICE LEVESON: Is that right, Mr Rhodri Davies? Id be very interested to see evidence about that, because one thing is for rock solid certain: interception of communications did have a custodial sentence attached to it, and it didnt seem to have stopped a great deal of activity.
pp55-58, lines 8-17, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-26-January-2012.pdf
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MR DAVIES: Well, that certainly was true-up to 2006/7, I entirely understand that. LORD JUSTICE LEVESON: Im not, I think, trying to make a cheap point. Im not doing that at all. But I am concerned about the evidence base for the assertion. Im not stopping you, I understand the point, and of course you can pursue it. MR DAVIES: Well, I think - really, what Im putting to you, Mr Graham, is your own assumption, which is that if the sentences available for breach of Section 55 are increased and the range of sanctions available to the court is widened, then you think that that will have a beneficially chilling effect on people who would otherwise contemplate a breach of Section 55? A. It would have a beneficially chilling effect on DVLC workers handing out car numbers and addresses based on those car numbers in exchange for money. It will have a beneficial chilling effect on health workers who apparently think its perfectly okay to access someones medical records in order to find the telephone numbers of their in-laws, who theyre having a fight with, or the bank clerk in Haywards Heath who thinks its fine to look at someones bank records in order to provide the case in her husbands defence in a sex attack trial. Thats what were dealing with. Whats that got to do with the press? If youre not doing this stuff, get out of the way. Q. Yes. I entirely understand those problems. 2.81 Mr Davies took Mr Graham through some practical examples of where the public interest defence might be relied on by a journalist in a s55 case. These drew on the sort of material which emerged in Motorman. The exchange continued:54 MR DAVIES: So that is a situation, Mr Graham, where, as I understand it, you think that the journalist might very well have a public interest defence? A. I say its arguable, anyway. Q. Its arguable. Thats the difficulty, isnt it? Because once were into the territory of its arguable, and its a prison sentence if youre wrong, do we not have a chilling effect? A. But all you have to advance is the reasonable belief that the story youre pursuing was in the public interest. Really, if you cant make that case, you shouldnt be in journalism. Its a very, very good increased defence for journalists. Q. Im just wondering how far that goes. So you say if theres a reasonable belief that the story youre pursuing is in the public interest, then that would be a public interest defence to obtaining an ex-directory telephone number? LORD JUSTICE LEVESON: Im not going to allow you, Mr Davies, to use the opportunity to try and tie the Information Commissioner down. Let me say what I presently believe, and then people can make submissions in due course. I presently believe that the new potential provision contains both subjective and objective elements, so not only must the journalist believe that its in the public interest to do so, but there must be reasonable grounds for that belief. Thereafter, if I follow up your earlier question, the Information Commissioner would have to decide whether there was evidence to rebut that defence before he thought of bringing a prosecution. If he thought of bringing a prosecution because he thought he could rebut the defence, it would be open to the journalist to advance the defence in court. If the court decided against the
pp62-63, lines 5-19, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-26-January-2012.pdf
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journalist, then it would have to decide on a scale how grave the particular offence was, and in my experience of sentencing criminal cases, which extends over 27 years, I dont think youll find that there would be any question of a mandatory sentence in those circumstances at all. 2.82 No further formal submissions were in fact received by the Inquiry on this subject and it now falls therefore to reflect on the extent to which this Report should seek to resolve the matter on way or the other. I do not, for the reasons set out above, accept that I should avoid doing so on the grounds that I can be confident that the culture, practices and ethics of the press are such that it is simply no longer a live issue within the Terms of Reference of the Inquiry. Bearing in mind those Terms of Reference, however, it is important to make clear two points. The first point is that the thread of argument in Mr Thomass original campaign (that increasing the sentencing maxima for s55 was a necessary element in increasing the profile of the data protection regime generally, and the seriousness with which it is regarded, whether politically of forensically), is not the concern of this Inquiry and not something on which this Report can or should express a view. Secondly, since the operational considerations currently being advanced in favour of commencing the increased maxima are explicitly said to be directed elsewhere than in the direction of the press, these are not considerations within the purview of this Inquiry and not matters on which it would be appropriate for this Report to have a determinative effect S55, in other words, is not a provision of exclusive application to the press, and it is necessary that I should be suitably circumspect about any effect of considering the matter otherwise than in relation to the press. S55 is, however, a provision which, as amended, has a specific and modified application to the press, and to that extent the uncommenced amendments must be considered to be part of the special approach to journalism that is evident throughout the data protection regime. It is also a provision the history of which, up to and including the present day, has been dominated by the presss policy interests. It is impossible therefore to avoid reflecting on the history of the s55 issue in the context of this Report at any rate in relation to the press dimension to the policy. This is not in any event, as indicated above, simply a policy issue at large. Parliament has considered this matter in extensive detail and legislated on it. The very strong presumption must be that Parliament does not legislate in idleness. Deferred implementation of legislation, in the rare instances in which that is deliberate policy, is usually a matter of making provision for preliminary practical issues or, as in this case, to allow for contingent events. The s55 contingency might be described as a policy of waiting to see whether the mere uncommenced existence of the possibility of a prison sentence would itself prove to be a deterrent to criminal activity. There appears to be ample evidence that criminal activity comprising the knowing or reckless misuse of personal information continues to be a real problem, and that specifically the absence of a potential custodial sentence (which would therefore permit sentences short of custody such as a community penalty) has emerged as a contributory factor. This is not least because, as Mr Graham made clear, a financial penalty must be related to means to pay and those of limited means will therefore face potential sanctions which have little correlation with the gravity of the offence and the potential for harm. The only reason which has been cited to the Inquiry for failure to commence the provisions for increasing the maximum potential sentence is the potentially damaging effect that it would have on journalism. These are not considerations which, in my view, can reasonably argued to be persuasive, let alone determinative.
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In the first place, the argument that the prospect of custody would have a differential chilling effect on lawful and ethical journalism from the prospect of a financial penalty is one which it is barely respectable for national press organisations to advance at all. Its necessary implication is that the prospect of a criminal conviction can, of itself, be regarded as a tolerable business risk, and a criminal fine a tolerable overhead, in journalism. This says little more than that unchilled journalism is an activity which takes calculated risks with deliberate and indefensible criminality. This is an argument for criminal impunity including (as it was put before the Inquiry) by way of a plea for indemnity from the otherwise universal application of criminal penalties; it amounts to special pleading to be placed above the law. I put the matter starkly, because no-one reading this Report should be in any doubt as to the true nature of the argument being advanced on behalf of the press in its most unqualified form. There is a more respectable version of the argument that there is a chilling effect in this provision. That version is not a contention that the press should be indulged in committing calculated criminality. It is an argument that the boundaries in this territory between what is criminal and what is not are not clear enough to make it safe for journalists to operate confidently. It is not an argument therefore about the consequences of criminality but about the risks of crossing criminal boundaries unwittingly. Where the boundaries are unclear, the possibility of a custodial penalty raises the stakes to the extent that decent journalists will have to take a risk-averse approach and give them a wide berth. The result, so the argument goes, is that some areas of investigative journalism on the right side of the law will be lost and that this would be contrary to the public interest. This remains an argument which envisages journalism tracking the boundaries of crime in a way which is not, and has not been over the years in which the s55 issue has been debated, empirically evidenced as a genuine operational problem to any degree; neither does it deal with the ethical (and indeed legal) questions which are raised by behaviour which is only just on the right side of crime. But the important point is that it is essentially an argument about whether the provision made in the new defence to cater for journalistic operations where they do sail close to the wind is adequate. If the defence deals satisfactorily with the boundaries between criminal and lawful journalism, then the question of the ultimate penalty must be a genuine second-order issue. It is hard to see how the new defence could go any further. If a journalist engages in a course of conduct which prima facie crosses the criminal boundary marking the unlawful acquisition of personal information, but can show that he or she was acting with a view to publication and in the reasonable belief that it was in the public interest, there can be no conviction. Note that it is not even necessary to show that the conduct was in fact, in the end, in the public interest. There is no alternative to asking the journalist to establish that the belief was genuine, because its basis will be uniquely within his or her own knowledge. And if the belief was neither genuine nor rational it is hard to see the case for a defence to crime. The provision made by the new defence to give honest journalists trying to respect the boundaries of the criminal law confidence in doing so, appears to be straightforward to understand, and more than adequate in giving honesty the benefit of the doubt. I am, therefore, entirely unpersuaded that the argument that there is a possible chilling effect on legitimate journalism is a reasonable one, and should be regarded as a proper reason in itself for continuing to resist giving effect to the legislation. Much more the point: Parliament has already settled the matter from a policy point of view. To the extent that the press effectively wishes to reopen not the question of penal policy but the matter of the substantive law itself, it is both too late and devoid of merit. Without suggesting that no other
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formulation of the new defence is imaginable, Parliament has given very close attention to the alternatives, and settled on something which, on any fair analysis, is fully capable of being made to work for the press. 2.92 I am conscious that in recommending the activation of the amendments to the Data Protection Act created by the Criminal Justice and Immigration Act 2008, this Report is dealing with an issue with considerable history, and not just as a matter of addressing the culture, practices and ethics of the press in relation the acquisition and use of private personal information. It is also addressing the operations of the press as powerful lobbyists on self-interested questions of media law and policy. On both of these grounds, I conclude that the public interest, taken in the round, favours there being no further delay in the implementation of this measure. As indicated in the Government consultation paper,55 therefore, I recommend that the necessary steps are taken (by statutory instrument) to increase the sentence maxima on conviction for an offence under s55, to include, in addition to the current fines, custodial penalties up to the statutory maximum on summary conviction, and, on conviction on indictment, up to two years imprisonment. It is important to underline that I also recommend that the enhanced defence for public interest journalism be activated at the same time. Prosecution powers of the ICO 2.95 Before concluding this part of the Report, a number of further aspects of the criminal law functions of the ICO in relation to the press fall to be considered. One particularly important piece of context to the s55 debate is the fact that this is the only offence in respect of which the ICO has prosecution powers. There are other criminal offences which are also contraventions of the data protection regime when committed in relation to personal information (which, incidentally, already attract the possibility of custodial sentences). There may be considerable overlap between these other offences and s55. Examples include: (a) (b) (c) (d) 2.96 phone hacking contrary to the Regulation of Investigatory Powers Act 2000;56 computer hacking contrary to the Computer Misuse Act 1990;57 offences of corruption, bribery and aiding and abetting misconduct in public office; and inchoate and accessory offences including attempt and conspiracy.
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There is indeed an argument that, since the first data protection principle requires that all acquisition and use of personal information must be fair and lawful, all criminal offences in relation to personal information within the meaning of the data protection regime will also constitute a breach of that regime.58 In practice, in any case in which a breach of the data protection regime may also constitute a criminal offence other than under s55, the ICO will effectively hand the matter in its entirety, and defer wholly, to the police and the CPS. That is at least in part because all of the other offences comprehend, including by way of higher sentencing maxima, a much wider spectrum of seriousness. That is important context for the decision in Motorman itself which, effectively, was to stand back from the prosecution process while the police and CPS proceeded with corruption and conspiracy prosecutions. But it has two important practical consequences.
http://www.dfpni.gov.uk/consultation_misue_of_personal_data.pdf http://www.legislation.gov.uk/ukpga/2000/23/contents 57 http://www.legislation.gov.uk/ukpga/1990/18/contents 58 The Law Society & Ors v Kordowski [2011] EWHC 3185 (QB), paras 100-101, where the equivalent point is made about the first data protection principle and civil torts
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The first consequence is that it effectively relegates s55 to a wholly residuary position, in practice only of real use in cases where all other criminal possibilities have been eliminated. But the process of elimination itself may, including by reason of delay, weaken the prospect in the end of bringing s55 charges. Secondly, it also puts the ICO at a disadvantage in considering cases of breach of the data protection principles in the round, including giving full consideration to alternatives to prosecution. So in cases at the extreme end of breaches of the principles and rights of the regime, the expert regulator is in danger of being left out of the picture altogether. Mr Graham explained the position in his witness statement to the Inquiry:59 In some circumstances, such as an allegation of unlawful processing, I have to rely on the police and the CPS to indicate whether they consider that an offence under another relevant Act has been committed before I can properly assess whether there has also been an associated breach of the data protection principle on which I might act. On the other hand if my office comes into possession of evidence which suggests that an offence has been committed under other legislation, I would pass this directly to the police or suggest to a complainant that he or she does so.. It is possible that, in some circumstances, personal data could be obtained in a way that suggests the commission of offences under both another Act and under section 55 of the Act. The investigation of offences which carry a custodial penalty takes precedence over the investigation of offences, such as those under the Act, which do not. Usually, the police will take the lead in investigating where penalties that carry a custodial penalty are suspected. They can consider the offence under section 55 of the Act as part of their investigation if they choose to do so. Whilst my office will pass relevant information on to the police to assist them in any investigation, it does not make good sense for us to run our own investigation in parallel.
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As considered at length above, this cannot stand as a full account of the operational inaction of the ICO in relation to the press and its involvement in Operation Motorman. But it does suggest a weakness in the scheme of the powers and functions of the ICO. It is a weakness which would be remedied in part by the activation of the higher sentence maxima for s55 because, at least, it would address the problem of its role as an offence of last resort by strengthening the ability of the ICO to prosecute s55 cases which also constitute other offences. But it would not address the position of the ICO as a prosecutor of last resort or the disabling effect of that on its consideration of the exercise of its other regulatory functions in relation to serious abuses of personal information.
2.100 This is a point of considerable importance for that strand of opinion in relation to phone hacking that urged that the primary response of this Inquiry should be to ensure that the existing law (and, in particular, the existing criminal law) is properly enforced. As fully set out above,60 the huge investment of the resources of the Metropolitan Police in their current Operations Weeting (phone hacking), Tuleta (computer hacking), and Elveden (corruption) is both unsustainable indefinitely and unrepeatable in the future. It is, however, noteworthy that all concern the possibility of the press committing crimes which involves the acquisition of personal information in breach of the data protection principles.
pp17-18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ChristopherGraham.pdf 60 Part E, Chapter 5
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2.101 Information crime in contexts involving neither national security issues nor the furtherance of other criminal purposes (that is to say, crime constituted wholly by the extreme violation of personal information privacy), is a matter which cannot hold a place at the top of the police agenda in competition with the many other priorities that the police face. Nor, in any event, can the police be expected to invest in the deep expertise in personal information privacy which the data protection regime envisages in for its own regulatory authority. Furthermore, the handling by the police of these cases is effectively binary: charges are either brought or dropped, without consideration of law enforcement issues falling short of criminal liability. The present disposition of prosecution powers therefore presents a threat to the proper enforcement of privacy crime in the future, including in relation to the press. 2.102 One possible way to address that problem would be to enable the ICO to prosecute breaches of the data protection regime which constituted criminal offences whether or not they did so as a result of s55. This would, in particular, enable the ICO to deal with cases of data abuse going beyond the processes of first acquisition of the information. It would have a number of specific advantages. It would: (a) (b) (c) relieve the police and CPS of the pressure of privacy crime on their priorities and resources; place prosecution in the hands of an expert regulator who would be well placed to investigate cases and if appropriate place their full criminality before the criminal courts; enable cases to be dealt with within the rounded context of a regulatory regime which has a range of other operational options falling short of prosecution.
Three matters would, however, have to be addressed in taking forward thinking in this context. 2.103 The first is the necessity of acknowledging, again, that this is not an issue of sole application to the press, and that it is beyond the purview of this Inquiry to address its implications in areas which have nothing to do with its terms of reference. As against that, however, it is necessary to note the very close association of the issue of prosecution powers with the s55 issue as discussed extensively above. And whereas it is to a degree speculative to reflect on the Motorman case itself from this perspective, there are genuine questions, including those raised at the time and since by the ICO itself, as to whether in the circumstance an information regulator, alive to the magnitude and nature of the breach of the law and good practice of the data protection regime and armed with a full range of responses up to and including prosecution for serious offences, would not have afforded the best prospects of effective law enforcement and of making the case a turning point for the good in the culture, practices and ethics of the press in the handling of personal information. 2.104 The second matter that would need to be addressed would be the capability and governance of the ICO itself in handling any enhanced prosecution functions. In so far as those questions have wider implications they are addressed more generally below. But it would be highly desirable to ensure that in all of its prosecution functions there was excellent liaison between the ICO and the police and CPS. It might, for example, be desirable to make the exercise of any powers to prosecute s55 cases which also constitute or may constitute other criminal offences and criminal breaches of the data protection regime falling outside s55 formally the subject of a duty to consult with the CPS. 2.105 The third matter concerns the position of the press as the potential subjects of criminal investigation by the ICO. Under that heading two issues in particular present themselves. The first relates to the circumstances in which the ICO might bring a prosecution as opposed to
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relying on its civil regulatory powers. That is a question which would need to be addressed by reference to the public interest. At the invitation of the Inquiry and following consultation, the Director of Public Prosecutions has issued guidelines for prosecutors on assessing the public interest in cases affecting the media.61 The ICO would be expected to follow these guidelines in the exercise of any enhanced prosecution powers and indeed in relation to its current powers. Mr Graham has already indicated that he is:62 happy to give an assurance that I will not seek to prosecute journalists who are genuinely pursuing enquiries in the public interest, even if those enquiries do not ultimately bear fruit. 2.106 Subject to the point of generality noted above, my conclusion, therefore, is that proper and proportionate enforcement of the criminal law in relation to press abuse of personal information would be enhanced by extending the prosecution powers of the ICO to include offences which comprehend a breach of the data protection principles in addition to the offence created by s55 of the DPA, coupled with a duty (whether formal or informal) to consult the CPS on such prosecutions, and the formal adoption by the ICO of the CPS guidelines on media prosecutions. 2.107 I recommend also that the ICO take immediate steps to engage with the Metropolitan Police on the preparation of a long-term strategy in relation to alleged media crime with a view to handling the issue in the aftermath of Operations Weeting, Tuleta and Elveden, on the basis that the priority currently being given by the police to addressing this form of alleged criminal behaviour is not sustainable indefinitely, and with a view to ensuring that the ICO is well placed to fulfil any necessary role in this respect in future. 2.108 The position of the ICO as prosecutor of last resort does not fully account for evident weaknesses in its handling of the question of criminal investigations in relation to the journalists involved in Operation Motorman. The ICO has prosecution powers at all because it is uniquely placed to view personal information privacy crime in the full context of its regulatory regime as a whole. This includes the perspective of the victim in such a context. That is a responsibility which it does not appear was fully engaged let alone discharged. I consider, however, that the enhancement of the prosecution powers of the ICO has a potential positively to support that position of overview and overall direction regarding information privacy breaches that are so serious as to enter the criminal spectrum. Further, it is reasonable to conclude that it could help to dissolve artificial boundaries, avoid confusion of accountabilities and support a better focus on the nature of the conduct and its impact on the individual. 2.109 A final issue to be considered within the framework of formal criminal law enforcement is the matter of sentencing. When dealing with the criminal law generally,63 I recommend that the Sentencing Council of England and Wales be asked to prepare guidelines in relation to information privacy and misuse offences (including computer misuse): for the sake of completeness, it is sufficient simply to repeat the recommendation and refer to the reasons for it.
http://www.cps.gov.uk/legal/d_to_g/guidance_for_prosecutors_on_assessing_the_public_interest_in_cases_ affecting_the_media_/index.html. This is discussed at greater length in Part J, Chapter 2 62 p24, para 6.7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-ChristopherGraham.pdf 63 Part J, Chapter 2
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Conclusions and recommendations on the legal framework 2.110 The recommendations set out above are not intended to do other than provide for more effective enforcement of the existing principles of law as they stand, and for a fairer, more even handed approach to the reconciliation of existing rights within those principles in cases in which they may conflict. They are also intended, importantly, substantially to simplify the law and make it more accessible to those, that is to say both press and the public, whom it is designed to serve. There are implications in these recommendations also for the legal system, the legal profession and the courts. Although the data protection regime is intended to sit lightly on businesses and not regularly to trouble the world of litigation, that is precisely because it is explicit in the provision it makes as a matter of law; in the rare cases where it does need to enter the legal system to resolve a disputed issue, the fundamental liberties with which it deals, and the sensitivity with which it deals with them need to be recognised for what they are. 2.111 As Mr Coppel has pointed out, the European Commission is currently considering replacing the existing Data Protection Directive with a directly applicable regulation. The present proposed Regulation would leave it to individual Member States to provide in detail for the exemptions or derogations it sets out. Those include provision relating to the processing of personal data for journalistic purposes. That means that it would be for Parliament in due course to come up with a suitable formulation, within the limits of what the regulation eventually requires. In other words, the expectation is that Parliament will have to revisit this topic in any event. 2.112 It would be unfortunate if that were regarded as reason for legislative inaction in the meantime. Any new regulation would itself, of course, have to make general provision within the overall requirement of the ECHR for a balance between Articles 8 and 10, and indeed would any UK domestic legislation. The risk posed by the prospect of a new regulation that any legislation prompted by this Report would have to be revisited seems to me in this respect to be of modest proportions, and to be outweighed by the need to make progress on amendment to the 1998 Act, both as a matter of law and of policy.
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Chapter 6 the relationship: the iCo and the press

1. too big for us?
1.1 This section of the Report takes its title from the passage in Mr Owens evidence where he describes an exchange in a meeting he says took place with Mr Thomas and Mr Aldhouse in which he sought to explain the full extent of the Motorman treasure trove. Mr Owens said:1 Well, it was at the end, I basically said what we have here, if we havent got any public defence we can go for everybody, from the blagger right up to the newspaper, at which point there was a look of horror on Mr Aldhouses face and he said, We cant take them on, theyre too big for us, and Mr Thomas just sort of bemused, deep in thought, just said, Fine, thanks very much, Alex, pass my compliments on and congratulations to the team for me, job well done. And that was basically it. Both Mr Thomas and Mr Aldhouse have said that they had no recollection of the meeting and disclaimed the language attributed to them by Mr Owens in any event. 1.2 Mr Owens, however, amplified in his evidence that he had formed the clear impression that there was, if not an express instruction or even express language, a cultural understanding within the ICO that the press were too big for the office to take on:2 The decision not to pursue any journalist was based solely on fear fear of the power, wealth and influence of the Press and the fear of the backlash that could follow if the press turned against ICO. 1.3 Mr Thomas specifically challenged Mr Owens reliability as a witness in this context, even suggesting that he may have had a motive, in the light of a number of performance, disciplinary and grievance issues between Mr Owens and the ICO, to put the latter in a poor light3 this is an inference that Mr Owens, in turn, resisted.4 Mr Thomas and Mr Aldhouse were also emphatic that there was not at any time in the ICO a deliberate or explicit policy of holding back from taking action in respect of the press, or from engaging directly with the press, whether from fear or otherwise. As we have seen, a number of operational rationales have been given in explanation of the roads not taken. It is not appropriate now for me to seek to resolve the evident dispute between Mr Owens and the ICO and, in particular, it is not necessary to determine whether the conversation as recounted by Mr Owens took place or not. It is not even necessary for me to determine
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p24, lines 13-22, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-30-November-2011.pdf 2 p18, para 5.18c, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-AlexanderOwens1.pdf 3 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fourth-Witness-Statement-of-Richard-Thomas-CBE. pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Sixth-Witness-Statement-of-Richard-Thomas.pdf 4 pp57-60, lines 23-25, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcriptof-Afternoon-Hearing-30-November-2011.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Thirdws-of-Alexander-Owens.pdf
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whether there was a deliberate, explicit or promulgated policy in the ICO of not taking on the press which was operative during the course of the Motorman decision-making. The question addressed in this part of the Report relates to something more fundamental, and at the same time less easy to pinpoint, which is the extent to which there may have underlying assumptions in the culture of the ICO and its leadership which instinctively held them back from an engagement with the press which their knowledge of the extent of the problem, and an objective assessment of their available powers, functions and options, might otherwise have suggested. Regardless of whether the words were ever uttered, it is legitimate to ask whether the press are too big for us did, in fact, accurately identify some reluctance, or lack of confidence, in dealing with the press which goes some way to explaining events. 1.6 With the single (and, in the event, salutary) exception discussed below, the ICO does not appear ever seriously to have tested its regulatory powers in relation to the press. Successive Information Commissioners have taken the view that the law must be understood to discourage them from doing so. Although it is clear that there are features of the current data protection regime which seem to make it unnecessarily difficult for the ICO to apply the law to the press, the conclusion that the press is not the business of the ICO is not one for which any authority in law can, in the end, be claimed. Moreover successive Information Commissioners have never sought to draw attention to problems in applying the current law to the press. If there was a case for political campaigning for changes to the law, it is legitimate to ask why it was not addressed to the impediments to mainstream civil law enforcement rather than the relatively more peripheral issue of criminal penalties. Even more notable has been the reluctance of the ICO to engage informally with the industry (otherwise than by way of the PCC or other intermediary bodies), whether as a matter of law enforcement, of promoting good practice or simply of business education and communication. Successive Information Commissioners assured the Inquiry that the press was simply not a priority for the ICOs attention. And yet Operation Motorman was one of the biggest operational cases to confront the ICO and the basis for two reports to Parliament and years of campaigning with the PCC and successive Governments. This was a case with the culture, practices and ethics of the press at its heart. Furthermore, the current press issues relating to phone hacking have created one of the biggest crises of confidence in the integrity of private information to have been experienced in the UK. On the face of it, this phenomenon is not straightforward to understand. The question before the Inquiry was whether there is evidence of a failure of regulatory will on the part of the ICO in relation to the press, going beyond the specifics of the Motorman case, and the technical imperfections of the legal regime, to a more general reluctance to discharge its functions in this area.
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The ICO and The Sunday Times

1.9 In considering this question, it is interesting to turn first to a series of events which predate many of the key developments in the Motorman case. It was put to Mr Thomas in oral evidence that the ICO had invited the editor of The Sunday Times, Mr Witherow, to attend interview under caution in 2003 in respect of possible breaches of s55 of the DPA in relation to the tax affairs of Lord Levy. Mr Thomas said he had no knowledge of this whatever, but having been put on notice of the question earlier he had checked with Mr Aldhouse, with whom the account rang a faint bell. Mr Thomas offered this thought:5
p66, lines 5-9, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf
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Chapter 6 | The relationship: the ICO and the press
If that had been the case and can I speculate? If the Office had invited the editor and had been rebuffed, that might perhaps have influenced people at the investigatory level as to the problems of interviewing people from the press. I dont know. He suggested that it might have been before his time. 1.10 The history appears to have been that The Sunday Times had published an article in 2000 about the tax affairs of Lord Levy which the latter had sought to prevent by means of an application for an injunction which had come before the then Mr Justice Toulson. According to Mr Witherow,6 that attempt failed because the judge decided that publication of the information was firmly in the public interest; Mr Witherow described Mr Thomas as subsequently seeking to interview him under caution about the Lord Levy story but again this was rebuffed because of our public interest defence, in support of which the judgment of Toulson J was deployed. Mr Witherow thought the ICO had accepted that.7 Eventually, the Sunday Times ran a front page story on 29 October 2006 connecting Lord Levy with a cash for honours scandal. The matter was explored further with Mr Thomas by Mr Rhodri Davies QC on behalf of News International.8 Mr Thomas had taken up his post in November 2002 and it was in fact on 11 December 2002 that the ICO wrote to Mr Witherow inviting him to attend an interview under caution. The signatory of the letter was an investigator in the ICO junior to Alex Owens. The proposition which, in effect, Mr Davies put to Mr Thomas was that the attempt to interview Mr Witherow was the direct result of powerful and well-connected pressure being applied to the ICO by Lord Levy rather than any independent operational consideration, and was in effect misconceived in the first place because it was plain that nothing other than investigative journalism in the public interest was in issue. Whether or not that was the case is not to the purpose of this Inquiry, although Mr Thomas accepted that Lord Levy had, around the relevant time, expressed quite strong frustration that my office had not been much use at sorting out his complaints and that this was not the first time the office had been subject to high profile criticism from a public figure who had gone to them with a problem. This episode is of interest to the Inquiry not because of any light it may shed on the susceptibility of the ICO to operational pressure from high profile complainants, but because it stands out as the only occasion on which, so far as we have been able to establish, the ICO attempted to exert its functions directly in relation to the press. Mr Davies put it to Mr Thomas that this was, in fact, the only occasion upon which the big stick of an interview under caution was wielded by the ICO against the press; Mr Thomas confirmed that he was not aware of any other example in which the ICO directly approached a journalist or editor. Moreover, Mr Thomas sought to distance himself from the Witherow decision; he suggested that it was taken at a junior level and that it did not look entirely defensible. The contrast with the absence of any approach to a journalist or editor in the Motorman case was made by Mr Davies for a different purpose from that of the Inquiry, but is nevertheless memorable. The issue of the impact on the ICO of its rebuff at the hands of the Mr Witherow is not unimportant. The episode evidently remained in the memory of The Sunday Times, and it is interesting to note that the one or two subsequent occasions on which that title and the ICO had occasion to interact had a distinctively adversarial quality.
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p2, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statement-of-JohnWitherow.pdf 7 pp22-23, lines 2-8, John Witherow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-17-January-2012.pdf 8 pp75-81, lines 9-16, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf
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The first concerns the editorial published in The Sunday Times on 29 October 2006 which is the day the paper led on its front page with the Lord Levy cash for honours story. The thrust of the editorial was in opposition to the campaign by Mr Thomas for an increase to the maximum penalty for breach of s55 of the DPA; it cast the proposition as offensive to democracy and free speech and it was not sparing in the aspersions cast on Mr Thomass intentions in this respect. A couple of brief excerpts will give a flavour:9 the role of the press in protecting the public by exposing the abuses of the powerful. Newspapers had already been doing this for centuries when he took up his post four years ago. This duty of the media is vital in the struggle to maintain an open society. Yet Mr Thomas would send reporters to prison for fulfilling it. Mr Thomas is complicit in placing another brick in the wall that the state is building to protect itself from unwanted scrutiny. This newspapers front page story today on cash for honours is precisely the sort of investigation that political parties would prefer not to happen. Mr Thomas is doing his bit to help them. The editorial also alluded to What Price Privacy? as a little noticed report. Mr Thomas wrote to the paper a couple of days later in response, but his letter does not appear to have been published.
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H
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Mr Thomas characterised this editorial as an unfair representation of his campaign, and accordingly as a recognisable part of the concerted press campaign to oppose it.10 More controversially, he said that he made a connection in his mind between the editorial and the meeting he had had with Les Hinton and others on the previous Friday as part of his PCC campaign, at which of course the difference of views on the s55 issue had played a prominent part. When he aired this thought in the Inquiry, it was subjected both to detailed rebuttal and to further challenge of his attitude to the press more generally. Mr Witherow made explicit the belief of The Sunday Times that, because the ICO had sought to interview him under caution in 2002, it was a matter of concern that Mr Thomas would not have adequately considered issues of the public interest in investigative journalism in running his s55 campaign.11 Further, Mr Davies, on behalf of News International, put it to Mr Thomas that it was relevant that, on the intervening Saturday, The Times had published an interview with Mr Thomas that he had given a few weeks previously in an effort to obtain some press coverage for an international data protection conference in London the following week.12 Mr Thomas accepted the evidence that there was no connection between the meeting with Mr Hinton and the editorial, concluding: It appears Im even wrong to raise questions.13 But it appears significant that, in rebutting the idea of a connection between the editorial and a meeting two days earlier, NI chose instead to make a connection between the editorial and the ICO attempt to interview the editor of the newspaper four years earlier. Whatever Mr Thomas and the ICO had learned from that attempt, the impact on The Sunday Times was manifest.
pp1-4, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-RJT231.pdf pp54-55, lines 20-9, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Afternoon-Hearing-9-December-2011.pdf 11 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statement-of-John-Witherow. pdf 12 pp81-86, lines 17-3, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Afternoon-Hearing-9-December-2011.pdf 13 p85, lines 9-14, Richard Thomas, ibid
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1.17
A further exchange took place several weeks after the publication of the editorial. The managing editor of The Sunday Times, then Richard Caseby, wrote to Mr Thomas on 14 December 2006,14 in the aftermath of the publication of What Price Privacy Now? (and after battle lines had effectively been drawn over the s55 policy issue) to express grave concerns over the publication in that report of further details of the Motorman information, particularly as it related to The Sunday Times. The tone of the letter can be described as confrontational; it alleges that the report was clearly defamatory of the publishers and managing editor (Mr Caseby himself), raises a number of points about the Motorman evidence and, before concluding with a request for an explanation and remedial steps as soon as possible, states that the writer did not believe that your conduct in this matter can be described as fair, or that it meets the standards which one should be entitled to expect from a regulator. Mr Thomas response of 2 February 200715 was a measured explanation of why the ICO had been entitled, or to an extent required, by virtue of its role and functions to deal as it had with the information published in What Price Privacy Now? but indicated that, on revisiting the figures connected with The Sunday Times, it had discovered an error in the report. Rather than identifying the title with 52 alleged transactions involving 7 journalists, it should have identified it with only 4 transactions and a single journalist. For this the letter offered an unqualified apology, and Mr Thomas explained that the error was corrected in letters to Parliament and to all the recipients of the report.16 This account of interactions between the ICO and The Sunday Times is set out in detail here because it brings into focus the following issues: (a) It raises again the question of distance between the senior leadership of the ICO and operational decision-making with very high profile and long lasting strategic consequences. Mr Thomas was apparently not involved in and had no foreknowledge of the decision to try to interview Mr Witherow, and accepted that the way the decision was taken was unsatisfactory. There were lessons to be learned in this about the vital need for the senior leadership to be sighted on and involved in major operational decisions of this reputational nature. It illustrates with some clarity what might be described as the ideological opposition of the press to the assertion of law enforcement powers, even in criminal matters, and the lack of objectivity and restraint with which that resistance is manifested; this is a matter considered extensively elsewhere in this Report. On the other hand, it also illustrates the dangers to the operational credibility of a regulator such as the ICO in investing so heavily, prominently and persistently in a political campaign to which a regulated sector was obviously deeply antagonistic. It can hardly be doubted that the reverberations of these adversarial encounters (many of which were played out in public) would have been felt personally by Mr Thomas and by the staff of the ICO. Whether or not Mr Thomas and Mr Aldhouse felt or articulated the view that the press was too big for us, I consider it almost inevitable that Mr Owens and his small team (to whom operational decision-making was effectively consigned) learned that lesson from the experience of trying to utilise their powers on the press in the form of the editor of The Sunday Times.
1.18
1.19
(b)
(c)
(d)
pp1-3, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJT-Exhibit-272.pdf pp1-4, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJT-Exhibit-29.pdf 16 p103, lines 9-21, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-9-December-2011.pdf
15
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Operational monkey tricks

1.20 With that significant narrative thread in mind, it falls to consider what can be known or can be deduced about the thinking of the ICO more generally in relation to the press. Mr Aldhouse denied being party to any timorous approach to the press17; as well as disclaiming the attitude that the press are too big to take on he cited his experience of discussions in 1996 which was the run up to the passage of the 1998 Act. He said that: we were quite happy to stand up to the media and try to negotiate with them. I wish I still had the copies of the press gazette articles roundly attacking Elizabeth France [the then Data Protection Registrar - the ICO predecessor body] and myself. So I dont fear the media It might be observed, however, that these experiences were evidently not on the operational side of the business, and that, in any event, Mr Aldhouse evidently considered his role to be at some distance from the operational decisions where fear of the press might have played a material role. 1.21 The Inquiry pursued explicitly with Mr Thomas himself the question of whether the power or influence of the press, or his perception of it, in any way affected the operational decisions taken in the Motorman case. He said that it did not, nor did he have any fear himself of the press.18 As we have seen, both Mr Thomas and Mr Aldhouse rejected any suggestion that there had been a deliberate, explicit or promulgated policy of holding back from taking any proactive operational measures in respect of evidence of press contravention of the legal requirements of the data protection regime or in respect of promoting good practice in data protection matters within the industry. Again, it is not the concern of this Part of the Report to establish the existence or otherwise of a formal policy, but to explore the nature of any significant cultural or psychological predispositions within the ICO and its leadership not to assert itself with the press or at least not to do so in an adversarial or confrontational way. Standing back to consider the explanations for the various paths not taken by the office in the Motorman case, the following reflections presented themselves. The explanation for targeting the middlemen (that is to say, the investigation agencies) rather than the commissioning journalists proceeded by reference to an analogy with drug dealers which I consider misconceived.19 This was not a market in which the private investigators were a dominant power, controlling supplies of standard goods and pushing them on a disadvantaged clientele. It was a market in which the press were the dominant power, commissioning bespoke products from what must be assumed to be a limited number of investigators willing to obtain them at some risk to themselves. Indeed, Mr Thomas himself, in explaining the stance taken in What Price Privacy?, stated that it was the journalists who were driving this market.20 He said the same thing in explaining his policy decision to proceed by engagement with the PCC: the focus there also was on stopping the market.21 Accordingly, it is difficult to accept at face value the logic of concentrating
1.22
1.23
pp45-47, lines 25-3, Francis Aldhouse, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Morning-Hearing-5-December-2011.pdf 18 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Third-Witness-Statement-of-Richard-ThomasCBE1.pdf 19 p36, lines 9-17, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-9-December-2011.pdf; p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/SecondWitness-Statement-of-Richard-Thomas-CBE1.pdf 20 p93, lines 14-15, Richard Thomas, ibid 21 p119, lines 19-24, Richard Thomas, ibid
17
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exclusively on the middlemen on the grounds that they were organising the illegal trade.22 The middlemen were on the supply-side, but it was the power of the demand-side which must account to a large degree account for the existence of the trade. The conclusions of What Price Privacy? put the point rather well:23 These offences occur because there is a market for this kind of information. At a time when senior members of the press were publicly congratulating themselves for having raised journalistic standards across the industry, many newspapers were continuing to subscribe to an undercover economy devoted to obtaining a wealth of personal information forbidden to them by law. One remarkable fact is how well documented this underworld turned out to be. 1.24 At least one operative reason why the ICO took no direct enforcement action against any journalist, editor or proprietor in response to Motorman (and, in particular, no prosecution action) was evident apprehension about the likely response of the press to any attempt to do so. Mr Thomas told the Inquiry that, in planning to wait and see how criminal proceedings against the investigators and public officials fared before actively considering any further enforcement action:24 I was also conscious that any action against journalists would be a major logistical, evidential and legal challenge, would almost certainly be strongly resisted and would be very expensive for an Office with very limited resources. 1.25 The evidential and legal challenges in the way of prosecution (which including the protection afforded to journalistic materials and sources) may have been significant, but the prospects of facing combative defence litigation appeared to be a disincentive in its own right. Counsel instructed by the CPS in Operation Glade was reported to have described the experience of dealing with press defendants in these memorable terms:25 London counsel indicated that the journalists were interviewed and were found to be tricky, well armed and well briefed, effectively a barrel of monkeys. 1.26 Pressed as to whether this suggested an excessively circumspect approach on the part of the ICO in the face of potentially powerful prima facie evidence of criminality, Mr Thomas put it this way:26 Well, I have to look at it from all points of view, I suppose, but I can see that the media would not like any of their journalists being prosecuted and I suspect they would, for example, argue theres a public interest in being able to ensure freedom of expression. Now, I dont believe that, I dont accept that, but I its one thing as to whether or not that would be successful, but one can anticipate that that sort of point would have been raised and it would have engaged the office and bogged down the office for many years. 1.27
22 23
In other words, there was an apprehension of the unreasonable or unfair deployment of the rhetoric of freedom of expression as a litigation tactic to deterrent effect. Without
p40, lines 12-15, Richard Thomas, ibid p29, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-1.pdf 24 p2, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fourth-Witness-Statement-of-RichardThomas-CBE.pdf 25 p68, lines 13-16, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofMorning-Hearing-9-December-2011.pdf 26 p69, lines 6-15, Richard Thomas, ibid
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commenting on its justification in this context, this perception is noteworthy in its own right not least because it was evidently a general perception within the ICO team. Mr Thomas recalled a conversation within the office around 2007 along the lines:27 Thank God we didnt take the journalists to court. Theyd have gone all the way to Strasbourg. In other words, they would have challenged any action we would have taken, we would have gone right to Strasbourg, the Court of Human Rights, Article 10 issues coming in. Wed seen all the material being thrown at us during What Price Privacy? and the Bill. 1.28 There was a gut instinct that litigation against the press would present the ICO with enormous difficulties.28 These were evidently perceived to be difficulties over and above the normal litigation issues of accessing and deploying evidence, navigating the law, and the overall strengths and weaknesses of the case. It can be reasonably inferred from the evidence that the perception extended to: (a) (b) (c) the likelihood of a generally aggressive stance; the generalised deployment of the rhetoric of freedom of expression beyond the fair articulation of balance contained in the law; and the expectation that that approach would extend beyond the confines of any single case of criminal litigation, and even beyond the bounds of any single attempt at regulatory action of whatever nature, to a generalised stance of hostility towards the function of the ICO as a regulator.
The evidence the Inquiry considered29 suggests that this apprehension was almost certainly justified on the basis that the press have a cultural inclination to be defensive and to utilise attack as the best form of defence. It was plainly operative. 1.29 The press, in other words, as an object of regulatory contemplation, was seen as trouble. That is so whether it was actively making operational mischief in response to regulatory attention or impassively declining to address its culture, practices and ethics itself (as Mr Graham memorably developed the metaphor, if were talking monkeys, its see no evil, hear no evil.)30
2. The struggle for a profile: political campaigning and the power of the press
2.1 At the beginning of this section of the Report, reference is made to the problematic reputation of the data protection regime. This is a burden with which successive Information Commissioners and their predecessor bodies have struggled constantly. Trying to get the issues surrounding data protection to be better known and understood is a vital precursor to improving compliance and standards. Communication and profile are in turn vital components of raising awareness. The ICO needs publicity for its functions. To a degree, it needs the press, and therefore has a motivation or predisposition to court it, or at least to view it as a potentially ally. To what may be a significantly greater degree, it is also vulnerable
p67, lines 11-20, Richard Thomas, ibid p70, lines 11-19, Richard Thomas, ibid 29 Part F, Chapter 6 30 p23, lines 18-20, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-26-January-2012.pdf
28
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to press hostility and suppression or damage to its reputation which can translate directly into weakened operational capability. 2.2 Raising the profile of data protection is an important part of the remit of the office and of the personal remit of its figurehead Commissioner. Both Mr Thomas and Mr Graham have clearly and commendably shown real commitment to, and significant leadership and personal investment in, that very challenging remit. Mr Thomas put it in this way:31 When I started, data protection had quite a poor reputation. It was seen as a bit nerdy, not taken very seriously across many organisations. I think my office probably had some responsibility. I used to say that, you know, we were seen outside as the temple of data protection and being the high priests of data protection, and I wanted to destroy that sort of approach, and therefore I was trying to make us much less esoteric, much more avoiding the technical language. I mean, a data subject is a man, a woman, a child, not a data subject. So I took a much more practical down to earth approach. Our slogan was that we are here to help organisations who want to get it right, but well be tough on those organisations which dont want to get it right 2.3 Mr Thomas also explained his profile-raising function with particular reference to the wider role he saw for the two What Price Privacy? reports:32 I was personally involved in this promotional activity to a very considerable extent. The Commissioner as the personification and leader of the ICO - is obviously expected to be a visible part of all major activity. In this case, I attached particular priority to the issue and also viewed promoting the reports as a tangible way of fulfilling a wider ambition to get data protection taken more seriously. 2.4 The potential power of the press as a friend of data protection however, also confronted the ICO with an awareness of its potential power as an opponent. Mr Thomas was aware of the obvious risk inherent in his strategic response to Motorman by way of the publication of the What Price Privacy? reports and the s55 campaign:33 We were aware from the outset that the media would probably ignore or show hostility to our reports. This presented two problems: The media usually play an important and influential role in any campaign by an independent body to secure legislative and other change. In this case we anticipated hostility through both editorial and proprietorial influence. We had worked very hard to secure a good press for the ICO across a very wide range of other DPA and FOI functions and had been largely successful. There was a real fear that this could be jeopardised. That was a fear which proved to be entirely well-founded. Furthermore, if it was a fear which was clearly present in Mr Thomas mind in relation to his strategic and political response to Operation Motorman, it does not seem a large step to infer that that was a fear understood more generally in the office, not excluding its (more junior) operational staff.
p111, lines 7-22, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-ofAfternoon-Hearing-9-December-2011.pdf 32 p8, para 19, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/First-Witness-Statement-of-RichardThomas-CBE.pdf 33 pp8-9, ibid
31
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2.5
Although the risk of press hostility to the objectives of the ICO was present from the outset, it is evident that the sheer scale of the risk and its potential to affect not only the outcome of a particular political campaign but the fundamental nature of the relationship between the press and the regulator was only a gradual revelation over the months and years. Towards the end of his oral evidence to the Inquiry about the course of the s55 campaign, Mr Thomas said this:34 I think there was a general feeling that people at the head of newspapers were very influential with the politicians and this perhaps was an example of that. And although they rested their case, as I said just now, on the threats to investigative journalism, I was surprised by how hard they were fighting, and it really left me with a message that we were challenging something which went to the heart of much of the - certainly the tabloid press activity. Someone once said to me: You do realise that you are actually challenging their whole business model? Maybe thats one reason they were fighting so hard, because on the one hand, they were not publicly accepting this sort of thing went on. On the other hand, they were fighting very hard to avoid the consequences of the law as we saw it.
2.6
Mr Thomas mature reflections on the lessons he learned from the experience of the s55 campaign are worth pondering in this context:35 Whatever was precisely known about the nature and extent of press misconduct across the industry as a whole, it became increasingly clear that the press were able to assert very substantial influence on public policy and the political processes. I have, throughout my career, been involved in a wide range of activities where it has been essential to attract media attention and, better still, active media support. The ICO press team was very effective at giving strategic, tactical and practical advice and securing favourable media coverage on many occasions. But, in the matters covered by this Statement, the press had a direct interest and a hostile attitude which made it very difficult to achieve our objectives. The history of the campaign over the Criminal Justice and Immigration Bill left me in no doubt about the power of the press. I can recall saying to my colleagues in 2007 and 2008 that, with hindsight, it may have been a mistake on our part to have highlighted press misconduct in our reports. We may have made better progress if we had concentrated more on breaches of s55 by other sectors.
3. Independent regulation of the press: lessons learned

3.1 It is hard to avoid the conclusion that the ICO did indeed consider itself disadvantaged in the task of discharging its functions in relation to the press. That was expressed in a number of dimensions which include insufficiency of legal powers, deference to other authorities, competing operational priorities, practical resourcing and capability issues. Having said that, although each of those dimensions contains important truths, they do not give a full account. Despite the abundant evidence, both patent and latent, of problems in the culture, practices and ethics of the press in handling personal information, the ICO has not been
pp59-60, lines 24-14, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcriptof-Afternoon-Hearing-9-December-2011.pdf 35 p13, para 37, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/First-Witness-Statement-of-RichardThomas-CBE.pdf
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keen to exercise the powers and functions reposed in it by Parliament in the public interest to address the matter. That is not simply a historical matter; it is perceptible in its approach today. In a context in which public concern about press standards and respect for the law has reached sufficiently acute proportions to warrant the commissioning of a judicial inquiry, that must be seen as a regulatory failure within the Terms of Reference of the Inquiry. 3.2 It is an understandable failure. The lessons to be learned from the narrative of the ICO and the press are entirely congruent with the evidence to the Inquiry of the approach of the press more generally. That approach is too often characterised by: (a) (b) (c) (d) 3.3 resistance to independent regulation of both law and standards; a confrontational, aggressive and personal approach to its critics; powerful behind the scenes political lobbying in its own interests; and the deployment, through a very loud megaphone, of the rhetoric of the freedom of the press to stifle rational criticism and debate about where the public interest lies.
Although it is a failure to which the ICO may be considered to have contributed by reason of its own choices, for example by engaging in the political arena on contested policy matters to a degree beyond what was likely to be constructive and productive, and in relation to operational decision making, I do not attribute it wholly or mainly to the individual leadership of the ICO. If, however, there is a perception of inequality of arms in the relationship between the ICO and the press, and if it is one which for understandable reasons the ICO has been reluctant to articulate or seek to remedy itself, then Mr Owens rhetorical question takes on certain urgency for the Inquiry:36 Its our job to take them or indeed anyone else on, thats what we are paid to do. If we do not do it then who does?
3.4
The ICO has to be capable of performing its function in relation to the press, however balanced and light touch the exercise of that function should be. It keeps wicket in this respect, on behalf of the public and at public expense. It does not have an option simply to leave the field open. As was observed in recent High Court proceedings, which also took a wider view of the ICOs functions in relation to journalism than it was minded to take itself:37 there is a need for someone to protect the public.
3.5
The final part of this part of the Report therefore briefly identifies the structural and governance issues which are likely to need to be addressed to put the ICO in a position in which it is capable of discharging its functions in relation to the press. This is at the margins of the Terms of Reference but, in the light of the analysis to which the ICO has been subject, I have no doubt that it is appropriate to identify the parameters of a solution before leaving the matter to the more detailed consideration both of the Ministry of Justice and the ICO itself.
p7, para 4.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-AlexanderOwens1.pdf 37 para 182, The Law Society & Ors v- Kordowski [2011] EWHC 3185
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4. Powers, governance and capability of the ICO: reflections for the future
4.1 The legal structure of the ICO is such that the entirety of the functions of the office is devolved through the office and the person of the Information Commissioner. The organisation of the office (that is to say, the division of functions, decision-making processes, accountabilities, staff mix and so on) are matters within the personal discretion of the Commissioner. In looking at the issues raised in this section of the Report, some issues of governance appeared to be raised by the narrative. In particular, the importance of the connection between the strategic leadership and the operational activities of the office, and the question of the circumspection that the ICO evidently felt and feels about fulfilling its functions in relation to the press raised questions about its organisational capability to act effectively in this area. The data protection regime has specific application to journalism, as indeed it does to other sectors for which special provision is made in the law. To operate successfully in specialist areas, a regulator needs to have access to two forms of specialist knowledge. This includes legal expertise in the operation of the relevant statutory provisions, and business knowledge of the sector concerned. In the person of Mr Graham, of course, the ICO is currently led by a Commissioner with direct experience in the sector, but it is essential that the relevant expertise is also accessible at operational levels. The historic lack of direct engagement between the ICO and the industry may not only be a symptom of the ICOs lack of operational familiarity with the press, but also a cause of it. I recommend that the opportunity should be taken by the ICO to review the availability of specialist legal and practical knowledge of the application of the data protection regime to the press, and to any extent necessary address it. A fruitful exchange of knowledge, experience and perspective between the strategic and operational levels of a regulator such as the ICO is fundamental to the success of both. In the history of its engagement on matters relating to the press, I have some questions about whether the organisation and decision-making processes of the ICO have been such as to support the necessary exchange and that its success in discharging its functions has suffered as a result. I therefore recommend that the opportunity should be taken by the ICO to review its organisation and decision-making processes to ensure that large-scale issues, with both strategic and operational dimensions, such as the intersection between the culture, practices and ethics of the press in relation to personal information on the one hand, and the application of the data protection regime to the press on the other, can be satisfactorily considered and addressed in the round. The model of a single post holder is not one which is generally encountered in modern regulatory regimes, especially those whose responsibilities extend to powerful business sectors. There has in recent years been a fairly general trend away from individual decisionmakers to boards. The Director-General for Fair Trading was replaced several years ago by a Chairman, Chief Executive and Board. The DG for electricity and gas regulation was replaced in the late 1990s by the Gas and Electricity Markets Authority (a board in which non-executives form the majority), and subsequently the executive role was divided between Chairman and Chief Executive. With the creation of Ofcom, the DG for telecommunications was replaced with a full board (which spanned other areas); Ofwat made the same transition in the mid2000s; and the health regulator, Monitor, recently moved from a combined executive role (with board oversight) to separate chairman/CEO roles.
4.2
4.3
4.4
4.5
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4.6
There are a number of reasons why the single model has drawbacks: (a) (b) It can render an organisation particularly vulnerable to pressure as its profile and reputation are focused on an individual personality. The absence of an effective senior executive board with non-executive input can expose the office to a presidential style of leadership, with insufficient internal checks and balances to ensure that its overall priorities remain congruent with its statutory functions. The absence of an effective senior executive board can also, as a simple matter of business management, mean that priorities, business risks, resources and performance are not managed and monitored coherently.
(c)
4.7
The merits by contrast of a formal Board constitution potentially include the following: (a) The benefits of collective decision making. This includes being able to bring a range of different expertise, experience and mindset to issues of strategy, priority and direction, and an enrichment of analysis, debate and perspective as a result. Firmer discipline can be maintained in decision-making, including the need to proceed by means of structured agendas, formal papers and recorded minutes. This is of particular importance in relation to decisions not to take action; when such decisions are taken individually or informally they are much more likely not to have been made from a structured position of strength. There are formal and precisely defined delegations and it is beyond doubt where decisions are to be delegated to the executive as not requiring Board approval.
(b)
(c)
All of these have a potential to promote collective decision-making as much more transparent and accountable. Each decision will thus both be more considered in itself and more susceptible to structured follow-through to specific outcomes. 4.8 The evidence before the Inquiry suggested that the constitution of the ICO as a corporation sole may, in at least some of these dimensions, have risked its ability to discharge effectively its functions in relation to the press. Unresolved questions must remain, for example, as to whether: (a) the informal approach adopted by the ICO to its regulatory functions (partly a matter, perhaps, of presiding over a regime struggling for a profile, also possibly a matter of personal leadership style) has contributed to a reluctance to bring issues to a head through the use of regulatory powers, and has allowed inaction to be an unremarked default within its own structure; the tendencies of Information Commissioners to see themselves as having a major, even dominant, outward-facing role with a political or campaigning dimension has been at the expense of their ability to provide clear, engaged, understood and accountable leadership in the decisions made within their office, to the detriment of the quality of those decisions, and has posed some risk to the regulatory reputation of the ICO, including in relation to its quasi-judicial functions; and its current constitution leaves the ICO with insufficient strength to match major business sectors with power and influence, such as the press.
(b)
(c) 4.9
I recommend therefore that the opportunity be taken by the Ministry of Justice to consider amending the DPA formally to reconstitute the ICO as an Information Commission, led by a Board of Commissioners with suitable expertise drawn from the worlds of regulation, public
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administration, law and business, and that active consideration be given in that context to the desirability of including on the Board a Commissioner from the media sector. In making this recommendation I do not, however, consider that the recommendations directed to reflecting on the governance of the ICO as currently constituted should be delayed in the meantime.
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Chapter 7 Summary of reCommendationS

1.1 I am conscious of both the length and complexity of this Part of the Report. For ease of reference, I have decided to place all my recommendations in summary form at the conclusion of this Part rather than to follow the approach I have pursued elsewhere. I recommend to the Ministry of Justice that: The exemption in section 32 of the Data Protection Act 1998 should be amended so as to make it available only where:1 (a) the processing of data is necessary for publication, rather than simply being in fact undertaken with a view to publication; (b) the data controller reasonably believes that the relevant publication would be or is in the public interest, with no special weighting of the balance between the public interest in freedom of expression and in privacy; and (c) objectively, that the likely interference with privacy resulting from the processing of the data is outweighed by the public interest in publication. The exemption in section 32 of the Data Protection Act 1998 should be narrowed in scope, so that it no longer allows, by itself, for exemption from:2 (a) the requirement of the first data protection principle to process personal data fairly (except in relation to the provision of information to the data subject under paragraph 2(1)(a) of Part II Schedule 1 to the 1998 Act) and in accordance with statute law; (b) the second data protection principle (personal data to be obtained only for specific purposes and not processed incompatibly with those purposes); (c) the fourth data protection principle (personal data to be accurate and kept up to date); (d) the sixth data protection principle (personal data to be processed in accordance with the rights of individuals under the Act); (e) the eighth data protection principle (restrictions on exporting personal data); and (f) the right of subject access. The recommendation on the removal of the right of subject access from the scope of section 32 is subject to any necessary clarification that the law relating to the protection of journalists sources is not affected by the Act. It should be made clear that the right to compensation for distress conferred by section 13 of the Data Protection Act 1998 is not restricted to cases of pecuniary loss, but should include compensation for pure distress.3
1 2
Part H, Chapter 5, para 2.60 Part H, Chapter 5, para 2.60 3 Part H, Chapter 5, para 2.62
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The procedural provisions of the Data Protection Act 1998 with special application to journalism in: (a) section 32(4) and (5) (b) sections 44 to 46 inclusive should be repealed.4 In conjunction with the repeal of those procedural provisions, consideration should be given to the desirability of including in the Data Protection Act 1998 a provision to the effect that, in considering the exercise of any powers in relation to the media or other publishers, the Information Commissioners Office should have special regard to the obligation in law to balance the public interest in freedom of expression alongside the public interest in upholding the data protection regime.5 Specific provision should be made to the effect that, in considering the exercise of any of its powers in relation to the media or other publishers, the Information Commissioners Office must have regard to the application to a data controller of any relevant system of regulation or standards enforcement which is contained in or recognised by statute.6 The necessary steps should be taken to bring into force the amendments made to section 55 of the Data Protection Act 1998 by section 77 of the Criminal Justice and Immigration Act 2008 (increase of sentence maxima) to the extent of the maximum specified period; and by section 78 of the 2008 Act (enhanced defence for public interest journalism).7 The prosecution powers of the Information Commissioner should be extended to include any offence which also constitutes a breach of the data protection principles.8 A new duty should be introduced (whether formal or informal) for the Information Commissioners Office to consult with the Crown Prosecution Service in relation to the exercise of its powers to undertake criminal proceedings.9 The opportunity should be taken to consider amending the Data Protection Act 1998 formally to reconstitute the Information Commissioners Office as an Information Commission, led by a Board of Commissioners with suitable expertise drawn from the worlds of regulation, public administration, law and business, and active consideration should be given in that context to the desirability of including on the Board a Commissioner from the media sector.10
4 5
Part H, Chapter 5, para 2.46 Part H, Chapter 5, para 2.57 6 Part H, Chapter 5, para 2.64 7 Part H, Chapter 5, paras 2.94-2.95 8 Part H, Chapter 5, para 2.107 9 Part H, Chapter 5, para 1.107 10 Part H, Chapter 6, para 4.9
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Chapter 7 | Summary of recommendations
I recommend to the Information Commissioners Office that: The Information Commissioners Office should take immediate steps to prepare, adopt and publish a policy on the exercise of its formal regulatory functions in order to ensure that the press complies with the legal requirements of the data protection regime.11 In discharge of its functions and duties to promote good practice in areas of public concern, the Information Commissioners Office should take immediate steps, in consultation with the industry, to prepare and issue comprehensive good practice guidelines and advice on appropriate principles and standards to be observed by the press in the processing of personal data. This should be prepared and implemented within six months from the date of this Report.12 The Information Commissioners Office should take steps to prepare and issue guidance to the public on their individual rights in relation to the obtaining and use by the press of their personal data, and how to exercise those rights.13 In particular, the Information Commissioners Office should take immediate steps to publish advice aimed at individuals (data subjects) concerned that their data have or may have been processed by the press unlawfully or otherwise than in accordance with good practice.14 The Information Commissioners Office, in the Annual Report to Parliament which it is required to make by virtue of section 52(1) of the Act, should include regular updates on the effectiveness of the foregoing measures, and on the culture, practices and ethics of the press in relation to the processing of personal data.15 The Information Commissioners Office should immediately adopt the Guidelines for Prosecutors on assessing the public interest in cases affecting the media, issued by the Director of Public Prosecutions in September 2012.16 The Information Commissioners Office should take immediate steps to engage with the Metropolitan Police on the preparation of a long-term strategy in relation to alleged media crime with a view to ensuring that the Office is well placed to fulfil any necessary role in this respect in the future, and in particular in the aftermath of Operations Weeting, Tuleta and Elveden.17 The Information Commissioners Office should take the opportunity to review the availability to it of specialist legal and practical knowledge of the application of the data protection regime to the press, and to any extent necessary address it.18 The Information Commissioners Office should take the opportunity to review its organisation and decision-making processes to ensure that large-scale issues, with both strategic and operational dimensions (including the relationship between the culture, practices and ethics of the press in relation to personal information on the one hand, and the application of the data protection regime to the press on the other) can be satisfactorily considered and addressed in the round.19
11 12
Part H, Chapter 5, para 2.64 Part H, Chapter 5, para 2.72 13 Part H, Chapter 5, para 2.73 14 Part H, Chapter 5, para 2.65 15 Part H, Chapter 5, para 2.73 16 Part H, Chapter 5, para 2.107 17 Part H, Chapter 5, para 2.108 18 Part H, Chapter 6, para 4.3 19 Part H, Chapter 6, para 4.4
1113
parT I The press and polITIcIans
chapTer 1 InTroducTIon
1.1 In addition to addressing other concerns, the Terms of Reference require the Inquiry to examine the relationship between national newspapers and politicians and the conduct of each. That this issue should have been considered relevant to an Inquiry into the culture, practices and ethics of the press is a matter of considerable significance. It implies the existence of legitimate questions of public concern about the nature of that relationship and conduct, and about the connection between that relationship and the current state of press standards and accountabilities. It asks, in other words, whether anything about the relationship between the press and the politicians has amounted to part of the problem of press standards. In doing so, and in putting these questions before a judge-led inquiry, the Terms of Reference required reflection on the relationship between press and politicians in a way which was relevant to and directed towards the issue of press culture, practices and ethics, and of course to do so in an objective, evidenced, analytical and politically neutral way. That too is significant. If there have been failures of public interest in the relationship between press and politicians, then our democracy provides ways in which politicians can account for that directly to the public. However, if there were failures of what might be called generic political culture (a pattern across time and across parties) and if there were failures in the democratic mechanisms for accountability, then the ordinary political means of challenging and investigating such matters might not have been effective. The politicians would themselves have been, or at least appeared, too close to the problem itself to address it in a way which would leave no doubts in the mind of the public. An issue of closeness is at the heart of this part of the Terms of Reference. More specifically, the issue is whether that relationship between politicians and the press had become too close in respects which might not have best served the public interest. The Prime Minister himself said that he believed that to be the case, first in July 2011 and subsequently when interviewed by Andrew Marr on 29 April 2012 when he said this: Have we all got too close? Yes. Do we spend too much time on this short-term news management agenda? Yes, we do. Should we try and have a better relationship where we fight the daily fire fight with the media, but we focus on the long-term change our economy needs, our society needs? Yes. And if that comes out of Leveson, great. 1.4 To put the matter in context from the outset, however, it is essential first to reflect the overwhelming evidence that relations between politicians and the press on a day to day basis are in robust good health and performing the vital public interest functions of a free press in a vigorous democracy, providing an open forum for public debate, enabling a free flow of information and challenge and holding power to account. If there were any doubts about that they would have been dispelled by the perceptive insights of both politicians and political journalists and commentators among the Inquirys witnesses, and by the remarkable quantity and quality of contemporary coverage of this module of the Inquirys work. Political journalism is one of the most highly-prized aspects of a free press operating in a developed democracy. It has often been referred to as the lifeblood of democracy, invigorating the body politic and supporting the effectiveness of democratic accountabilities. It is in this area (although not just in this area) that the press performs some of the most essential public
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PART I | The Press and Politicians
interest functions on which we all depend. Some excellent examples were seen first-hand during the course of the Inquirys deliberations. I make very clear at the outset therefore that political journalism is not the focus of this Part of the Report, and indeed the Inquiry has had clearly in mind throughout the importance of ensuring that political journalism is fostered and encouraged to the greatest degree possible for the future. 1.6 This Part of the Report is not therefore directed at the relationships of everyday political journalism other than by way of background, nor particularly to the issue of press standards as they might apply to such journalism. Nor did the Inquiry pursue as a separate issue the status of individual politicians as actual or potential victims of media misconduct (although in the course of evidence there have been a number of accounts of the impact of personal attacks upon politicians by the press and concern about the potential for such attacks). The narrative of this Part of the Report explores instead a very different aspect of the closeness of the relationship between press and politicians, the one that is in my view most directly relevant to the public interest concerns that prompted the setting up of this Inquiry in the first place. That is the question of a closeness which may have, or appear to have, impacted on the willingness or ability of the politicians to decide matters of public policy about the media, and specifically of policy on press standards, fairly and impartially in the public interest. As I have already said,1 this Inquiry takes its place in responding to the latest in a long sequence of spikes in public concern about press standards; this time it is phone hacking. That history is also a history of what has been described as failures by the politicians to make appropriate responses to those spikes in public concern. The Inquiry has taken a brief but informative look at what has happened in the past, with the invaluable privilege of access to the perspectives of many of those directly involved. In doing so, it has considered whether there was any discernible pattern in that history, and if so whether it was a pattern which could be related to a relationship that was too close. The historical approach, which is reflected in this Part of the Report, is not therefore academic (and certainly does not pretend to any degree of historical discipline or originality); but is, as should be expected of an Inquiry of this nature, thematic and inquisitorial. Module Three of the Inquiry has focused on the more recent manifestations of this issue, but it is an issue which I recognise (as has been pointed out) goes back in time very much further than that. The fact that I have not heard oral evidence about relations between the national press and politicians at a period any earlier than the middle of the last century certainly does not mean that I am blind to the very considerable influence which the press barons of the late nineteenth and early twentieth centuries are generally agreed to have had on politicians. I am well aware from written evidence and other material in the public domain of the role in public life which Lords Northcliffe, Beaverbrook and Rothermere had in their day. The power wielded in the past by these proprietors, and their influential relationships with the politicians of their time, demonstrates that the issues which the Inquiry is now addressing are far from new. However, these earlier events are not sufficiently proximate to the current culture to merit detailed examination: the primary focus of the Inquiry has been on what should happen in the future in the light of what has happened more recently. Chronologically, the Inquiry began its focus on the relationship with evidence about the acquisition in 1981 by Rupert Murdoch of The Times and The Sunday Times and it has reflected on events from then to the present. To have gone back further would have demanded too much of any witness and was highly unlikely to have added to the understanding which emerged from the oral evidence which itself spanned a period of 31 years. That oral evidence
1.7
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1.9
1.10
Part D Chapter 1
1118
is, of course, supplemented by documentary evidence some of which goes back considerably before 1981. 1.11 From this, a clear pattern has in my view emerged about the relationship between the press and the politicians in recent years at the most senior levels of influence. There is of course no evidence at all of explicit, covert deals between senior politicians and newspaper proprietors or editors; no-one should seriously have expected that there would be. These very powerful relationships are more subtle than that, the extent to which interests coincide or diverge is more complicated, and the dialogue more sophisticated. But there can be no doubt that within these relationships, some of them having the quality of personal friendships (and some of active hostility), there have been exchanges of influence on matters of public policy which have given rise to legitimate questions about the trust and confidence the public can have that they have been conducted scrupulously in the public interest. Care has to be taken in talking about influence. It is the prerogative of a free and partisan press in a democracy to campaign, lobby and seek to influence both public opinion and public policy. Where the issues arise is in the nature, visibility and accountability of the politicians response. Nor is the existence of personal relationships and friendships at senior levels between press and politicians anything other than entirely natural and to be expected. The issues arise here in relation to the conduct of public affairs in the context of such relationships, and in the boundaries between public and private, accountable and unaccountable. The pattern which emerges is one in which senior press/political relationships have been too close to give sufficient grounds for confidence that fear or favour have not been operative factors in the determination and implementation of media policy. That has been the position for some years at least. It is not a state of affairs confined to any one political party. This section examines in particular the decision to permit Mr Murdochs News Corporation to acquire The Times and The Sunday Times; the terms of the Broadcasting Act 1990 (insofar as they concerned foreign and cross media ownership) which were such as to permit Sky TV to continue in the ownership of News Corporation; the passage of the Communications Act 2003, in particular the development of its provisions on foreign and cross media ownership, which in their final form would not have prevented News Corporation from acquiring Channel 5; and finally, the bid by News Corporation for the remaining shares in BSkyB which came to an end shortly before the Inquiry was set up (and for connected reasons). Evidence on the last of these matters brought into sharp focus the pressures, from more than one direction, on governing politicians charged with making a decision of great importance to the media. In particular, it exposed a formidable and relentless lobbying operation which gave rise to serious legal and ethical issues. On more than one occasion during the period under consideration, concerns about the culture, practices and ethics of the press surfaced in public debate. However, on each occasion the political reaction was not such as to bring about a lasting solution to the problem. As outlined earlier in this Report, concern during the late 1980s reached such a level that the then Home Secretary commissioned Sir David Calcutt QC to lead a committee which inquired into and reported on press standards, highlighting significant areas of legitimate public concern. The political response to the first Calcutt Report purported to give the press a final chance to put its own house in order before addressing the matter further. The press failed by some margin to meet the challenge, but the establishment of the self-regulatory PCC was the chief exception to a prevalent do nothing response from the Government. How and why that was so is examined.
1.12
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1.14
1.15
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1.16
The PCC was (or at least could have been) a step forward from its predecessor, the Press Council. However, it was never endowed by the industry with the full range of powers and resources advocated by the politicians by whom it was presented as a credible response to public concern. In practice, as is discussed more fully elsewhere in this Report2 irrespective of how it described itself or the powers (however limited) that it actually had, it functioned principally as a handler of complaints and latterly an advisory body. When concerns about press behaviour, and of paparazzi photographers in particular, resurfaced in 1997 with the tragic death of Diana, Princess of Wales, there was some tightening of the Editors Code but, as the then Prime Minister candidly accepted, he took a conscious decision to manage rather than to confront the media, taking the view that to have confronted the press would have been an all consuming task. There was a further missed opportunity to address press misconduct when the Information Commissioner published his findings about the ways in which private investigators had, in his view, unlawfully obtained confidential data which was then provided to the press in circumstances (including the extent of payments made for the data) which provided ample grounds for profound public concern.3 The Information Commissioner recommended amendments to the Data Protection Act 1998. In the result, the political response was a further compromise and no effective action. How that came about is also illuminating. This Part of the Report therefore begins by considering some relevant aspects of the relationships between our last five Prime Ministers (including the present holder of that office) and the press. Political leaders have their own approaches to and experiences of the press at a personal level. Personality and individual approach greatly influence the dynamic between a Prime Minister and the opinion-makers of the press. This Part reflects on these relationships for the insights they offer into what they might nevertheless have in common, and into whether any patterns can be said to emerge. This search for patterns is an exercise which was fundamental to the work of the Inquiry in this Module. It would, however, be a mistake to think that the Inquiry can or should try to solve all of the unresolved questions about the relationship between the press and the politicians at the highest levels over the past 35 years. What follows, therefore, attempts simply and briefly to set out some of the narrative history which seemed to be particularly relevant to the Terms of Reference; there is no ambition to be comprehensive or to sit in judgment on political history whether past or contemporary, but only to identify the extent of the issues relevant to the Inquiry and to reflect on any pointers for the future. If the most recent past is considered in the greatest detail, that is, first, because some of these issues were prominent features of the context in which the Inquiry was set up and, second, because contemporary concerns are inevitably uppermost in the public mind, and have had the least benefit of the longer perspective. This Part then canvasses some wider contemporary political perspectives. My overall conclusions and recommendations follow. The Report addresses one final matter in this Part. The public concern which led to this Inquiry stands at the end of a long line of surges in public concern. Each has been followed by a political response which has not adequately addressed that concern. This all has to be viewed in the context of press/political relationships which themselves appear to have had problematic dimensions. Thus, the approach to this Inquiry also deserves consideration.
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I
1.20 1.21
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Part D, Chapter 1 Part H
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Chapter 2 the Conservative Years

1. prime Minister thatcher: 1979-1990
1.1 Margaret, now Baroness, Thatcher enjoyed sustained, substantial though not unqualified support from a range of national newspaper titles throughout her tenure as Prime Minister, yet she is reputed to have spent little time herself actually reading newspapers:1 Margaret Thatcher never read a newspaper from one week to the next. While titles with a consistent history of leaning to the left of centre were equally consistently critical, those sections of the press with a history of shifting political leanings were as supportive as traditionally Conservative newspapers. In that sense, at any rate, from Lord Mandelsons perspective:2 Mrs Thatcher was able to call on the virtually uncritical support of both publishers and editors. 1.2 A particular feature of Baroness Thatchers era was the strong personal relationship which she enjoyed with a number of newspaper proprietors, characterised by mutual respect and shared political ideology. Rupert Murdoch described himself to be a great admirer3 of Baroness Thatcher, agreeing that he was on the same page politically.4 The Inquiry heard a consistency of opinion on this matter. Mr Murdochs title, The Sun, was described to the Inquiry by Tony Blair as a major part of supporting Mrs Thatcher,5 although Mr Murdoch himself put it more modestly.6 David Mellor QC observed that: [Rupert Murdochs] ...straightforward right wing populist opinions made him a soulmate for Mrs Thatcher.7 Sir John Major attributed Baroness Thatchers rapport with newspaper proprietors to her political outlook:8 Margaret was probably the most right of centre leader the Conservative Party had had for quite a long time, and I think that appealed to the natural instincts of many proprietors and editors at the time, and I think support was accordingly offered. Andrew Neil, the former editor of The Sunday Times, also described Baroness Thatcher and Mr Murdoch as ideological soul mates.9 Sir John interestingly connected the bond between Baroness Thatcher and these proprietors with their common commitment to trade union
p53, lines 1-2, Kenneth Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-30-May-2012.pdf 2 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Lord-Mandelson.pdf 3 p6, lines 15-16, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-25-April-2012.pdf 4 p15, lines 5-13, Rupert Murdoch, ibid 5 p39, lines 3-4, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-28-May-2012.pdf 6 p36, lines 4-24, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-25-April-2012.pdf 7 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-David-Mellor.pdf 8 p2, lines 20-24, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-12-June-2012.pdf 9 p10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-statement-of-Andrew-Neil.pdf
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reform, to shared views about business (and buccaneering businessmen)10 and the European Union, and to popular admiration for Baroness Thatchers role in the Falklands War. 1.4 Baroness Thatchers relationship with many proprietors did not manifest itself in frequent meetings with them or their editors. Mr Murdoch firmly denied the suggestion that he had consulted with her regularly on every important matter of policy.11 Mr Neil saw Baroness Thatcher once in seven years.12 Kelvin MacKenzie told the Inquiry that he probably saw Baroness Thatcher about twice a year but later confirmed that he did not doubt that she wanted his support.13 The relatively modest number of meetings does not necessarily indicate that a friendly proprietor did not have access to the Prime Minister. Mr Murdoch was readily received when he approached her whilst he was a bidder for Times Newspapers. The result was that he visited Chequers for lunch where he briefed her on his bid and his vision for Times Newspapers. The acquisition of Times Newspapers is described in detail elsewhere.14 It is easy to understand why Baroness Thatcher enjoyed a good relationship with a number of proprietors but more difficult to attribute any specific benefit for either party to the relationship itself. Baroness Thatcher enjoyed a good deal of positive media coverage, although even generally supportive titles were sometimes critical (for example, Mr Murdoch preferred to support President Reagan over Baroness Thatcher when the United States invaded Grenada).15 But the explanation for the positive coverage is readily attributable to editorial approval for her policies and disapproval of those of the Opposition. There was straightforward political alignment and an element of straightforward mutual personal rapport (not to say admiration). Importantly, it is clear from Mr Murdochs evidence, which is corroborated by contemporary notes, that he neither expressly asked for nor was expressly offered any favourable policy decisions by Baroness Thatcher.16 He was indeed permitted to buy Times Newspapers without a reference to the Monopolies and Mergers Commission (MMC) but this does not appear to me to be directly attributable to personal influence. The Prime Minister was not in any event the decision maker.17 Mr Neil suggested that in late 1985, in the run up to the major industrial dispute at Wapping, Mr Murdoch went to square Thatcher, by which he meant seek an assurance that there would be sufficient policing of the dispute to enable him to continue to do business at Wapping.18 That was indeed the result, but the Governments stance during the Wapping dispute was in accordance with its approach to other industrial disputes (not least the miners strike).
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I
10
p3, lines 1-24, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-12-June-2012.pdf 11 p36, lines 22-24, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-25-April-2012.pdf 12 p11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-statement-of-Andrew-Neil.pdf 13 pp33-34, lines 3-6, Kelvin Mackenzie, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofMorning-Hearing-9-January-2012.pdf 14 Part I, Chapter 5 15 p10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-statement-of-Andrew-Neil.pdf 16 pp14-15, lines 13-4, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcriptof-Morning-Hearing-25-April-2012.pdf 17 Part I, Chapter 5 18 p12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-statement-of-Andrew-Neil.pdf
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Chapter 2 | The Conservative Years
1.9
An indication of the influence of Mr Murdoch towards the end of Baroness Thatchers tenure was provided by Mr Mellor in these terms:19 By the time Murdoch came to establish Sky, a brave entrepreneurial investment that deserved to succeed, and a process I was happy to help along in the Broadcasting Act 1990, he was used to Ministers doing his bidding, rather than the other way around. He was personally charming to deal with, but he was one of the few people, apart from Heads of State, I, as a minister, had to visit at his premises rather than him having to schlepp over to the Home Office.
1.10
There were nevertheless decisions on media policy taken by the Government which went against supportive proprietors. News International was not granted a domestic broadcasting licence and had to launch Sky, its satellite television service, using a foreign satellite.20 On this, the Sunday Times, under Mr Neil, supported Lord Heseltine against Baroness Thatcher.21 More than one witness suggested that the prospect of honours played a part in Baroness Thatchers relationship with senior media figures. Alastair Campbell put it bluntly:22 Margaret Thatcher had much more press support, partly for political and ideological reasons, in that most owners and editors are right wing and genuinely supported her, but also because she operated what today would be seen as a corrupt system of patronage using the honours system to reward supportive owners and editors.
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Lord Mandelson did not put it so high:23 She cultivated and honoured and nurtured editors and journalists very successfully. The relationship was, I think, relatively calm during her period. It might not have seemed so calm to her on all occasions ...
1.13
Lord Grade offered these thoughts on the question of patronage:24 ...we are happily past the days when the politicians of the day used to pack the boards of the regulators with their friends and supporters, such as my time as a controller of BBC One when in the days of then Mrs Thatchers government when the board of the BBC were packed with her friends. Weve moved on from then, we have a Nolan process ...
1.14
An issue of interest to the Inquiry was the question of the perception amongst politicians of the extent to which newspaper endorsement assists election prospects. Andrew Marr said:25 There is always a hierarchy of media contacts. For a Conservative minister, contacts at The Daily Telegraph, Daily Mail, The Spectator and blogs like Conservative home are particularly valuable, and likely to be closer; Liberal Democrats will more likely turn to papers and blogs read by their activists, and Labour, ditto. Throughout the
19 20
p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-David-Mellor.pdf p11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-statement-of-Andrew-Neil.pdf 21 p51, lines 12-18, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-25-April-2012.pdf 22 p20, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Alastair-Campbell.pdf 23 p99, lines 14-18, Lord Mandelson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-21-May-2012.pdf 24 p34, lines 4-10, Lord Grade, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-31-January-2012.pdf 25 p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Andrew-Marr.pdf
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Thatcher, Major and Blair governments, the Murdoch stable was always perceived by its rivals to have a privileged position. This was because of its spread and power as a publishing group, and Mr Murdochs readiness to use papers such as the Sun to intervene aggressively. But it made close social relationships, at Murdoch parties or Oxfordshire get-togethers, peculiarly disheartening for press rivals (emphasis added) 1.15 As notable as the active support of much of the press for Baroness Thatcher was its hostile attitude to the Opposition. Throughout Baroness Thatchers time in office, successive Leaders of the Opposition, first Michael Foot and then Neil Kinnock, were the subject of considerable adverse press coverage. Writing from the Labour Partys perspective, Mr Campbell described the period as follows:26 What we do know is that the press [Michael Foot and Neil Kinnock] received was hugely biased against them, and in favour of Mrs Thatcher and her Party. Michael Foot had long been derided by the right wing media for perceived political and personal shortcomings, the most famous being the alleged disrespect he showed in attending the 1981 Remembrance Sunday Service in what was mythologised as a donkey jacket. But that was but part of a long campaign during which in several papers Mr Foot could only be defined negatively. According to the book, Stick it up your Punter, the Sun and the Express told freelance photographers covering a Foot visit not to bother sending pictures of the Labour leader unless falling over, shot or talking to Militants. The Daily Mail, under a pre-knighted David English, led a front page with a disputed claim that Nissan would scrap plans for a 50m car plant if Labour won the election. 35,000 jobs lost if Foot wins screamed the headline. I cite this as a typical rather than exceptional example. Labours defeat in 1979, and a seeming shift to the left, ignited not so much political debate as focus on sinister Marxist forces, wrongly ensuring that at times in the public debate Labours political doctrine was indistinguishable from the Communists. The Express earned top marks from Tory Central Office with a Spot the Trots feature of 70 extremist candidates, among them Neil Kinnock and Robin Cook. 1.16 Lord Mandelson put it this way:27 I think what I meant by [horrible and bloody] is that, you know, there has been a longer standing trend in the press to mix reporting with comment, and it didnt simply revolve around that period in the 1980s and the 1992 election. I think that what took this sort of merging of comment and reporting to a higher level was the more lethal cocktail, which I believe that the Labour Party was exposed to, and that was a sort of mixture of aggression and inaccuracy, and I think that the Labour Party generally and its leader, Mr Kinnock, in particular were the victims of that. I think that the press took their gloves off, I think there was a sort of lack of scruple or restraint in the reporting of the Labour Party in those years. Now I also quite honestly observe in my witness statement that, you know, a lot of the damage the Labour Party had done to itself in the early part of the 1980s. We werent exactly making it easy for people to report us positively or warmly given the vote-losing policies, the divisions, the entries into the Labour Party by the far left.
26
p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Second-Witness-Statement-of-AlastairCampbell.pdf 27 pp7-8, lines 22-25, Lord Mandelson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-21-May-20121.pdf
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But by the end of the 1980s, by the time we got to the 1992 General Election, a great deal, I would say the bulk of that swamp had been emptied, and that the Labour Party had changed and I dont think we were given the credit for those changes and I think Mr Kinnock in particular was on the receiving end of treatment by the media, notably but not only News International titles, that was not warranted and was not fair. 1.17 Peter Oborne felt that there had been: a poisonously unfair media towards Mr Kinnock at that time. He didnt get a fair crack of the whip, and therefore if he tried to sell a policy, it tended to get misrepresented.28 Headlines from this era included: Glenys the Menace (Daily Mail) and Kinnock I back loonies (The Sun).29 The relationship between the Labour Party and News International was particularly poor during this period for another reason: the dispute at Wapping. Labour sought to mark its disapproval of Mr Murdochs handling of the dispute by cutting off the supply of political news to his reporters. As Andrew Grice, formerly the political editor of the Sunday Times, put it:30 There was a major industrial dispute at Wapping in 1986/7. During that period, officially at least, the Labour party was not even talking to the Murdoch papers and Murdoch paper journalists were banned from any briefings or press conferences the Labour party held. So the back cloth was not just difficult relations but no official relationships at all. 1.19 1.20 Mr Campbell said that after the Wapping dispute the Labour Party wanted nothing to do with the Murdoch papers.31 A similarly confrontational line was also taken by the Labour Party with TV AM when it was involved in an industrial dispute. Adam Boulton explained to the Inquiry how he was unable to take cameras with him into the Labour Party conference:32 ...I report that in the context of having been through the TV AM dispute when, at the urging of the ACTT, the Labour Party had done precisely that. They had blacked, as it was then called, TV AM so we could not take our cameras, for example, into the Labour Party Conference of that year so that we their spokesmen would not appear on our programmes. And of course, the immediate effect of that is that it means that your offering is weaker than the offering of your competitors, who have full access to all the political parties.
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I
28
p3, lines 2-5, Peter Oborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-17-May-2012.pdf 29 p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Second-Witness-Statement-of-AlastairCampbell.pdf 30 p77, lines 2-9, Andrew Grice, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-25-June-20121.pdf 31 p10, lines 20-24, Alastair Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-14-May-2012.pdf 32 pp66-67, lines 22-7, Adam Boulton, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-15-May-2012.pdf
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2. prime Minister Major: 1990-1997

2.1 In November 1990 Sir John Major took up office with what he himself described as a quixotic approach to the national press.33 He was keen to win their support and closely followed political coverage. But he did not seek a close relationship with proprietors and editors. Instead, he kept his distance, leaving contact primarily to others, especially his Press Secretary, a post held throughout his tenure by a civil servant. Sir John fared well, initially, so far as newspaper coverage was concerned. The 1992 election was marked by fiercely hostile coverage towards Sir Johns political rival Lord Kinnock. However, it was not long before sections of the press turned their hostility towards him. By the time of the 1997 election, The Sun and The News of the World had unequivocally transferred their support to New Labour. The Major years are undoubtedly important for the work of the Inquiry in relation to media policy because it fell to Sir Johns Government to consider and respond to the recommendations of Sir David Calcutt QCs reports.34 Many, including Sir John and Mr Cameron, now consider that the response of the time amounted to a missed opportunity. As Prime Minister, Sir John made a conscious choice not to seek a close relationship with any part of the media. He did not think it appropriate and, in any event, he did not share a closelyaligned political ideology or personal affinity with any of the media proprietors of the time. In his own words:35 As Prime Minister, I did not inherit or seek a close relationship with any part of the media. I did not go out of my way to engage with the press. This was my own choice, made in part by natural instinct, and in part because the Black and Murdoch press were wedded to a more ideological type of Conservatism than my own. Nor did I engage closely with the Maxwell press or other centre or centrist left titles. This decision was, to an extent, quixotic, since the press are a daily route to the electorate. Nonetheless, a close engagement did not feel comfortable or proper to me and I left relationships with the media largely to the No 10 Press Office then staffed exclusively by civil servants and, where appropriate, the Party machine...I did not offer any peerages or knighthoods to any national newspaper proprietors or editors ... 2.5 Sir John explained to the Inquiry his view that in terms of democratic accountability, the best relationship between the media and senior politicians is one of constructive tension. It should be neither too friendly nor too oppositional. In particular, if the relationship becomes too close it can become the context for exchanges of self-interest: leaks and stories in return for favourable coverage, as Sir John told the Inquiry had happened to an unnamed politician during the passage of the Maastricht Bill.36 In practice, Sir John did not often meet national newspaper proprietors. He met Mr Murdoch on three occasions (in 1992, 1993 and 1997 respectively), Lord (Conrad) Black on seven occasions and Lord Stevens twice (and attended four social events at his invitation). He did
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33
p4, lines 13-20, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-12-June-2012.pdf 34 Part I, Chapter 5 35 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Sir-John-Major.pdf 36 pp4-5, ibid
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not meet Robert Maxwell at all, although Mr Maxwell did on occasion telephone No 10.37 Strikingly, he not only turned down an invitation from Mr Murdoch in August 1993 to attend a special celebration to mark the launch of new Sky TV channels but also discouraged other Cabinet members from attending.38 He met editors and political editors occasionally, typically in the presence of his Press Secretary, and usually for the purposes of explaining a particular policy.39 He could recall hosting only one press lunch at Chequers, on 3 December 1995.40 Unlike his immediate predecessor, he did not confer any peerages or honours on national newspaper proprietors and editors (although the position was different in relation to regional and magazine editors).41 2.7 The difference of approach was put into this context by Mr Campbell:42 You see, I think a lot of this started under Margaret Thatcher, because I think that newspapers were given a sense of power. The numbers that received the peerages and the knighthoods and the sense that they were almost part of her team. I think it changed under John Major, and then I think when we were in power, I think that we I think we maybe did give the media too much of a sense of their own place within the political firmament when we should have challenged it more. 2.8 Lord ODonnell (as he now is), a career civil servant, served as Sir Johns Press Secretary between 1990 and 1994 before being succeeded by another civil servant, Sir Christopher Meyer. Lord ODonnells brief was to present Government policy on an even-handed basis to all members of the media. This approach marked a change from the higher profile approach of his predecessor, Sir Bernard Ingham, and was associated with the return of the Guardian and The Independent to the lobby. In Lord ODonnells own words:43 Well, I was told by the then cabinet secretary, Robin Butler, that what he wanted me to do in the role as press secretary was to lower the profile of the press secretary as you mentioned, Mr Ingham, now Sir Bernard, had a higher public profile and to establish very clearly the impartiality of the process. Its relationship with the media needed to change. At the time when I took over as Press Secretary, the lobby briefings had got to a stage where two newspapers, the Guardian and the Independent, had exited the lobby, and my job really was to try and get back to a situation where all newspapers could be represented there and felt able to attend, and indeed the Guardian and the Independent did come back in to the lobby. So it was trying to establish general principles of the Prime Ministers press secretary being there clearly to present, in an impartial fashion, government policy, and to do that equally to all members of the media, both broadcast and newspapers.
37
p15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Sir-John-Major.pdf; p7, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-SJM-1.pdf 38 p15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Sir-John-Major.pdf, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-SJM-3.pdf; and pp30-31, lines 13-3, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-Morning-Hearing12-June-2012.pdf 39 p15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Sir-John-Major.pdf 40 p16, ibid; Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-SJM-4.pdf 41 pp2-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Sir-John-Major.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-SJM-2.pdf 42 p66, lines 10-19, Alastair Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-14-May-2012.pdf 43 pp16-17, lines 13-6, Lord ODonnell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-14-May-2012.pdf
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The distance which Sir John put between himself and the national press did not prevent his Government from paying close attention to the press or from seeking to get their message across to the press through briefings. Sir Christopher put it in these terms:44 ...Enormous attention was paid to editors of national newspapers this extended, to a degree, to regional editors, but not much and so a considerable effort went into courting them, bringing them around for privileged one-on-one briefings for example. This was in the early 1990s. I believe that that practice has now expanded phenomenally over the years. So what it came down to was an exaggerated belief in the influence of the front page headline and commentary columns within. There was an absolute belief that newspapers and their editors could win or lose elections depending on how they reported the stories. I personally believe that that influence is gigantically exaggerated. So the result was we did pay we, in Downing Street, did pay a lot of attention, more than I thought was necessary, to trying to pull people on board. And of course the more you do that, the more demanding the editors and proprietors, in some cases, become. So I was always a bit sceptical about that.
2.10
As Philip Webster, the editor of The Times website and a former political editor with the paper, observed in his evidence, Sir John built good relations with the press on his way to Downing Street.45 Once in office, between 1990 and 1992, Sir John received press which he himself thought was appropriate, and regarded as neither especially supportive nor hostile.46 That, of course, falls to be contrasted with the extremely negative political coverage that was accorded to the Leader of the Opposition during the same period. By 1993, the evidence clearly shows that Mr Murdochs British titles were writing some very hostile, and sometimes very personal, articles about Sir John. A selection of such articles was attached to a briefing note which Lord ODonnell produced for the then Prime Minister on 18 August 1993.47 Lord ODonnell suggested in the note that Sir John took the opportunity of a forthcoming meeting with Mr Murdoch to communicate to him the matters quoted below. In the result Sir John did not consider it appropriate to do so, not least because of the implied threat, but the document nevertheless gives a flavour of the level of concern generated by the adverse press coverage:48 Your papers have made matters worse. They have ceased to make rational criticisms of policy. They are now simply anti everything and anti me in particular. (see attached cuttings.) This is bad for economic confidence and hence, bad for business. Longer term political repercussions difficult to assess. Conservative MPs now see no reason to be helpful to media. [Pressure growing over privacy rules, VAT on newspapers,
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44
pp20-21, lines 8-3, Sir Christopher Meyer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Afternoon-Hearing-31-January-2012.pdf 45 p93, lines 1-3, Philip Webster, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-25-June-20121.pdf 46 p7, lines 3-19, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-12-June-2012.pdf 47 pp5-17, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-SJM-5.pdf 48 pp29-30, lines 18-7, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Morning-Hearing-12-June-2012.pdf; p3, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/06/Exhibit-SJM-5.pdf
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cross-ownership. I am not keen to move on any of these areas but MPs from all parties becoming increasingly attracted to them.] 2.12 Peter Riddell described the coverage of the Major Government as becoming very hostile.49 Mr Webster said this:50 Well, there were occasions I think where the treatment of certain leaders got a little bit was over the top, I think. I recall newspaper treatment of Neil Kinnock, John Major, latterly of Gordon Brown, where it got too personal and in a sense I felt that was going a little bit too far. But I dont regret the passing of the age of deference at all. I remember in the late 1960s, when I joined the Times, there was a much more deferential attitude of reporters towards politicians. I am rather glad that is all gone. Its just in some cases I think the treatment has been just a little bit too personal at times. 2.13 There were probably many reasons for the change in coverage and the maintenance of its changed course. Antipathy to the Governments policies and, in due course, the rise of New Labour were probably amongst them. But Sir Johns personal relationship, or rather lack of it, with influential media figures of the time was probably also a factor. Mr Murdoch said this:51 Q. So the support the Sun gave to the Tory Party. not that it was the strongest support, because you, to put it bluntly, werent that appreciative of Sir John Major A. Or his government. Well, we were reading in all the papers of cabinet divisions. 2.14 Kelvin MacKenzie, then editor of The Sun, said something similar:52 Q. First of all, were your relations with or respect for Mr John Major as good as they were with Baroness Thatcher? A. No, they were no, we didnt have a no, we did not have a particularly good relationship. He was no Thatcher, John Major. 2.15 There was a conflict in the evidence of Mr MacKenzie and Sir John in relation to the content of a telephone conversation which both men recalled took place late on Black Wednesday.53 Whatever the precise course of the conversation, however, it is noteworthy that the editor of The Sun was amongst those, including HM The Queen and senior ministers, to have been telephoned by the then Prime Minister. Sir John put it to the Inquiry that there had developed something of a culture of press hostility to his administration, and personal ridicule of him, which resulted in coverage which went beyond vigorous partisanship, and was not only unfair but inaccurate and misleading. He cited what he considered to be the mischaracterisation of his Back to Basics initiative as a moral crusade, certainly a depiction which had serious repercussions for his Government,
2.16
49
p39, lines 1-2, Peter Riddell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-MorningHearing-25-June-20121.pdf 50 p90, lines 9-20, Philip Webster, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-25-June-20121.pdf 51 p55, lines 5-9, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-25-April-2012.pdf 52 pp36-7, lines 18-23, Kelvin MacKenzie, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Morning-Hearing-9-January-2012.pdf 53 16 September 1992, when the Government was forced to withdraw the pound from the European Exchange Rate Mechanism
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and which was associated with (and was claimed as legitimising) highly intrusive coverage of the sexual behaviour of a number of Conservative politicians.54 2.17 He also pointed to the caricaturing of the Citizens Charter:55 Similarly, a policy to improve the culture of public services was launched under the title Citizens Charter. This policy was aimed at improving public services, ensuring courtesy to the taxpayer who paid for them, and improving the esteem in which public servants and public services were held. The press undermined this campaign from the outset, through a total misrepresentation of the facts behind it led by journalists who seemed to have no experience of public service and little care for it. (emphasis added). 2.18 Sir John also pointed to a number of examples of unwarranted press intrusion into his private and family life. These included the following: (a) intrusion by a tabloid title into the familys holiday home in Portugal to rearrange the furniture, take photographs and publish a story; Dame Norma Major telephoned the editor to seek an explanation but was told that she and her husband had no right to any privacy;56 an attempt to blag personal information about his sons then girlfriend:57 on another occasion, my office received a telephone call purporting to be from the A&E Department of a hospital. The caller explained that my sons then girlfriend had been involved in an accident and that emergency surgery was necessary. However, before this could be carried out, it was vital to know whether she was pregnant. Even though, on the face of it, this enquiry was clearly an urgent one, before giving any response my office made immediate contact with my sons girlfriend, who was entirely well and in a meeting. For the record, she was not pregnant; (c) speculative surveillance of his son:58 In circa 1996/7, my son was followed repeatedly by an individual on a motorbike, with a long piece of equipment attached to his bike. My son became very alarmed, since this was at a time when Northern Ireland was a much larger security concern than it is today and through his rear view mirror he believed the equipment might be a rifle. My son followed the security procedures hed been taught to follow, in order to shake off his pursuer, but to no avail. He therefore continued to drive, and requested assistance from the Cambridgeshire Armed Response Unit who flagged down the motorcycle and pulled it over. It turned out that the rider was a photographer for the News of the World, and the equipment was a telephoto lens. The motorcyclist had been instructed to follow my son day and night, in the hope of providing a story.; and (d) picture manipulation:59 Following the General Election of 1997, I was on a private holiday. Following a picnic on the beach, I tossed an empty bottle to my wife, who was immediately beside me, tidying up. The following day, a series of photographs appeared in one of the British
54 55
(b)
p20, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Sir-John-Major.pdf p21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Sir-John-Major.pdf 56 p25, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Sir-John-Major.pdf 57 ibid 58 ibid 59 p26, ibid
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tabloids (from all of which my wife had been airbrushed), accusing me of tossing the bottle onto an empty beach, and thus being a litter lout. 2.19 There was also this from Paul McMullan, the former News of the World journalist:60 Yeah, I was sent to France because Id lived there and worked for an agency for a while to try and track down the woman who took John Majors virginity. This was a while ago. We found her but we couldnt get a picture of her with her new boyfriend. So the idea was she traded in John Major, the Prime Minister, for this French wrinkly. I think the cleaner was in the house, so I blagged my way in and pinched it off the mantle piece and copied it. I remember at the time Rebekah Brooks said, No, put it back, were not allowed to nick stuff! And Piers said, No, who cares? Well done. Well put it in the paper. Which is what we did. 2.20 Sir John nevertheless fairly also said this about his personal coverage:61 Q. You refer to your disengagement in the first sentence of paragraph 7. Would it be fair to say, though, Sir John, that you were very sensitive about what was written about you by the press? A. It certainly would be, yes. I wouldnt deny that at all in retrospect. Its certainly true. I was much too sensitive from time to time about what the press wrote. God knows, in retrospect, why I was, but I was...I woke up each morning and I opened the morning papers and I learned what I thought that I didnt think, what I said that I hadnt said, what I was about to do that I wasnt about to do. So there was a practical need to know what was going on but did I read them too much? Yes, I did. Was it hurtful sometimes? Yes, it was. Did I think, it was malicious? I think thats for others to make a judgment about. 2.21 There was a significant exchange between Mr Murdoch and Sir John shortly before the election. Sir John invited Mr Murdoch and his wife to dinner because he had been urged by party officials to woo newspaper proprietors. Sir John said this about the occasion:62 ...In the run-up to the 1997 election, in my third and last meeting with him on 2 February 1997, he made it clear that he disliked my European policies which he wished me to change. If not, his papers could not and would not support the Conservative Government. So far as I recall, he made no mention of editorial independence but referred to all his papers as we. Both Mr Murdoch and I kept our word. I made no change in policy, and Mr Murdochs titles did indeed oppose the Conservative Party... 2.22 As Sir John observed:63 It is not very often someone sits in front of a prime minister and says to a prime minister: I would like you to change your policy, and if you dont change your policy, my organisation cannot support you. People may often think that, they may often
60
p70, lines 9-21, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-ofAfternoon-Hearing-29-November-2011.pdf 61 pp7-9, lines 20-16, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-12-June-2012.pdf 62 p8, para 29, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Sir-John-Major.pdf 63 pp33-34, lines 20-2, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-12-June-2012.pdf
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react but its not often that point is directly put to a prime minister in that fashion, so its unlikely to have been something I would have forgotten. 2.23 When Counsel to the Inquiry explored the nature of the opposition of Mr Murdochs papers to his Government at the 1997 election, Sir John said:64 Q ...the Sunday Times continued to support the Conservative Party and the Times position was more equivocal, supporting anybody who happened to be anti-Europe A Well, may I please have a definition of support? If you mean, did they perhaps write an editorial saying, On balance, the least of all evils is the Conservative and you had better vote for them, I think the answer is probably that they did. If you mean: was there news coverage day in, day out, morning after morning, weekend after weekend, hostile, then I would have to say to you that I think it was. So I think I would have preferred to have less of the editorial support and more of the equitable news coverage. 2.24 He did also acknowledge:65 ...After all, they had written about the Conservative Party between 1992 and 1997, how could they, in all credibility, have then said, Despite all we have written over the past five years, we actually invite you to vote for these people weve been telling you are useless for five years? I think that would have been quite a difficult editorial position to take. 2.25 More than one commentator has perceived a cyclical nature in the relationship between the press and Prime Ministers, starting well and finishing badly. Mr Riddell suggested:66 Recent prime ministers John Major, Tony Blair, Gordon Brown and David Cameron have all sought close relations with the media, at various levels, from proprietors, through editors to political correspondents, during their rise to the top. But, when they have been in office for some time, the relationship has soured as media criticism has increased, and each PM has complained about the stridency, intrusiveness and unfairness of the media. Both the initial closeness and later disillusion have been detrimental to the public interest. It would have healthier to have a more distant, workmanlike, relationship throughout. 2.26 Mr Webster agreed:67 Q. You describe, rather like Mr Riddell, a circle whereby recent prime ministers and you name John Major and Tony Blair as initially having very good relations with the press but eventually becoming disillusioned; would you add Gordon Brown to that list? A. Yes, I would, yes. I think in all cases they began with good relations. John Major built good relations with the press on his way to Downing Street. But he became very quickly disillusioned with the press afterwards.
64 65
p34, ibid p35, ibid 66 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Peter-Riddell2.pdf 67 pp92-93, lines 20-3, Philip Webster, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-25-June-20121.pdf
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2.27
It would be perverse to suggest that Sir Johns relationship with the press was too close in the sense of too friendly, or such as to give rise to perceptions of mutual favour. It was, however, certainly personal. The lesson many subsequent politicians took from observation of the personal destructiveness of the press towards political leaders such as Mr Foot, Lord Kinnock and Sir John was a complex one. In part, it had to involve scrupulous reassessment of unpopular policy positions. That in itself contained its own complexities: was unpopularity with the press the same as unpopularity with the public? How far did the press themselves convince the public to dislike a policy, and was that fair or unfair? How should the personal dimension of a political leadership position be considered integral to the political? And, most of all, what could be done about any of it? For some at least, one of the lessons taken from these experiences was that previous relations between politicians and the press had been not close enough.
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Chapter 3 New Labour

1. The 1992 general election
1.1 The Labour Partys media strategy going into the 1992 election campaign did not aim to win over hostile sections of the media and was positively averse to engaging with News International (NI) in particular. It included some manifesto pledges on media policies to which elements of the press were explicitly opposed, including on implementation of the recommendations in the Calcutt Report and the establishment of an urgent inquiry by the Monopolies and Mergers Commissions into the concentration of media ownership.1 There was, in the event, significant negative coverage of both the Labour Party in general and its Leader, now Lord Kinnock, in particular throughout the election campaign. Even the victor of that election, Sir John Major, described it as both a pretty crude campaign against Lord Kinnock and over the top.2 The Rt Hon Jack Straw MP, a Labour candidate at the election, described the experience in his evidence in these terms:3 Now, what the Sun was doing in the 1992 election was working over each senior member of the Labour front bench and this had an effect, and if you were on the receiving end of it, it felt like power. It had an effect in my constituency. I remember doing an open-air meeting that Wednesday and you could feel support falling away, and my majority scarcely moved, although it did not reflect the national swing. 1.3 At the climax of The Suns election coverage were two particularly negative and personal headlines directed against Lord Kinnock. Nightmare on Kinnock Street was followed, on election day itself, by the headline: If Kinnock wins today will the last person to leave Britain please turn out the lights.4 As is well known, Labour lost the 1992 election but tabloid coverage in the years running up to election, and in particular The Suns coverage during the campaign, has remained the subject of controversy ever since. Kelvin MacKenzie, then the editor of The Sun, famously proclaimed through a headline after the Conservative victory that: Its the Sun Wot Won It.5 Rupert Murdoch distanced himself from that; in his own words, he gave Mr MacKenzie a hell of a bollocking.6 Mr Murdoch said this:7 I just thought it was tasteless and wrong for us. It was wrong in fact. We dont have that sort of power. I think if you well, you cant do it now, but if you go after an election and you see a newspaper thats taken a very strong line, particularly the
pp1-2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Harriet-Harman-QCMP.pdf 2 p39, lines 14-15 and line 24, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/ Transcript-of-Morning-Hearing-12-June-2012.pdf 3 p22, lines 7-14, Jack Straw, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-16-May-2012.pdf 4 The Sun, 9 April 1992; see p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-byProfessor-Steven-Barnett-University-of-Westminster.pdf 5 The Sun, 11 April 1992; see p16, ibid 6 p53, lines 18-19, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-25-April-2012.pdf 7 p54, lines 1-7, Rupert Murdoch, ibid
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Chapter 3 | New Labour
Sun, and ask their readers how did they vote, there would be no unanimity. It may be 60/40 one way... 1.5 Lord Kinnock, in his resignation speech delivered on 13 April 1992, blamed his defeat on the newspapers which had supported the Conservatives, quoting the former Conservative Treasurer who had said that: The heroes of this campaign were Sir David English, Sir Nicholas Lloyd, Kelvin MacKenzie and the other editors of the grand Tory press. Lord Kinnock warned: This was how the election was won and if the politicians, elated in their hour of victory, are tempted to believe otherwise, they are in very real trouble next time. None of the witnesses who gave evidence to the Inquiry suggested that The Suns support for the Conservatives had in fact been decisive, although many, especially in other parties, thought that it was very influential. Alastair Campbell put it this way:8 I am not sure if it can be claimed, as the Sun did after the Tories won in 1992, that it was the Sun wot won it, but there is no doubt in my mind that the systematic undermining of Labour and its leader and policies through these papers, actively encouraged and fed with lines of attack by Tory HQ, was a factor in Labours inability properly to connect with the public, and ultimate defeat. 1.7 The Rt Hon Harriet Harman MPs analysis was similar: The Labour Party went on to receive extremely hostile coverage from newspapers owned by Rupert Murdoch. We then lost the 1992 General Election.9 During the course of her oral evidence she made clear that she thought that there were also other factors at play: ... Im sure there were many things which contributed to us not getting elected in 1992 over and above the bombardment that wed received from the Murdoch press ...10 Mr Straw observed: Few of us who took part, for example, in the 1992 General Election are in any doubt that the Suns approach lost us seats. That was their purpose, and it is disingenuous for any now to deny this.11 Even more succinctly: It did contribute to our defeat. I took that as power.12 Sir John Major, whilst critical of the treatment of Lord Kinnock, did not think that it was actually so influential:13 How much did that affect the election? Labour Party mythology has it that it made a huge difference. I dont actually think so. I think the news coverage in 1992 and 1997 accelerated a trend that existed. I do not think it changed the result of either of those General Elections. I think we would have won in 1992; we would have lost in 1997. 1.10
8
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Whether or not press coverage affected the outcome of the election, it is clear that the experience had an impact on the perceptions of politicians as to the importance of political
p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Second-Witness-Statement-of-AlastairCampbell.pdf 9 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Harriet-Harman-QC-MP. pdf 10 p68, lines 9-12, Harriet Harman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-12-June-2012.pdf 11 p4, Jack Straw, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Jack-StrawMP.pdf 12 pp22-23, lines 25-1, Jack Straw, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-16-May-2012.pdf 13 p39, lines 17-23, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-12-June-2012.pdf
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press coverage; and those perceptions have subsequently been a key factor in the media strategies of political parties. The Rt Hon Tony Blair put it this way:14 Q. I return to the issue of spin. I think we agreed that it was borne out of the unfair treatment, in your eyes, of Mr Kinnocks Labour Party, which required a disciplined and possibly a ruthless handling of the press. Is that right? A. Yeah, but you see I draw a very clear distinction between what I would say is a very tough professional media operation and ruthless handling of the press in the sense of when I read this stuff about how people felt bullied and harassed and intimidated and so on ... 1.11 Mr Campbell recounted an active choice to change the Labour Partys approach to what he described as the Murdoch papers.15 He described Rupert Murdoch as the single most important media figure and said that it would have been foolish on our part not to have sought to build some sort of relationship with him.16 Mr Straw said:17 ...once Mr Blair had come into office in 1994, we all shared the same view, that if humanly possible, without completely compromising ourselves, we should do our best to get the papers on side. It was better than the alternative. This was because Id been through 18 years of opposition. 1.13 Ms Harman, questioned at the Inquiry, offered this perspective:18 Q. May I sort of turn that around and say, well, those manifesto commitments which we saw in 1992 were singularly absent in 1997, and there was a reason for their being absent, which was not to estrange or inflame or otherwise discourage the Murdoch press. Is there force in that observation? A. Well, I think it goes back to what Tony Blair said in what became known as his 2007 feral beast speech, is that we, after all those years in opposition and believing that we wanted to get into government to do things on the health service and on unemployment and on whole range of things, that it felt necessary to do more assuaging, neutralising, courting, that was the decision that was taken, and that did feel like it was necessary. 1.14 Mr Blair put it slightly differently:19 Between 1994-1997, we did change Labours policy on media ownership. However it should be remembered that this policy was itself partly a product of the terrible relations between the Labour Party and the Murdoch press and the unions and that press. My view was and remains that there should be no presumption in favour of any media organisation or against it; that foreign ownership should not be regarded
14
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pp16-17, lines 17-2, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-28-May-2012.pdf 15 p10, Alastair Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-AfternoonHearing-14-May-2012.pdf 16 p9, lines 7-9, ibid 17 p23, lines 2-7, Jack Straw, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-16-May-2012.pdf 18 pp68-69, lines 24-13, Harriet Harman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Afternoon-Hearing-12-June-2012.pdf 19 p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Tony-Blair1.pdf
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differently from ownership by British nationals; and that the best way of dealing with undue interference through size whether within one medium or across media, is through competition policy. So it would be fair to say that had we kept that policy, it would have been a problem with the Murdoch press. But there were sound objective reasons for changing it. I cant recall any conversations on it with anyone from the Murdoch media. 1.15 Mr Blair rejected the suggestion, made by Lance Price, who worked first as Mr Campbells deputy from 1998, and then as New Labours Director of Communications between 2000 and 2001, that the old media policy was quietly dropped within six months of his (Mr Blairs) trip to Hayman Island in 1995, where he met Mr Murdoch, although he readily accepted that had he maintained the old policy then: it would definitely have been a problem with the Murdoch media group in particular ....20 He made very clear that he had not wanted media policy to distract him from his agenda of wider political reform:21 ...I mean, Id taken the view I was not going to have the Labour Party coming back into power after 18 years with a programme of change for the country and having the centrepiece of the programme being issues to do with media ownership. I thought that would have been a distraction and wrong. 1.17 The scale of the distraction which Mr Blair believed would have resulted had he made media reform a central plank of his agenda was forcefully put:22 My view, rightly or wrongly, was that if, in those circumstances, I had said, Right, Ive decided what Im going to do is take on the media and change the law in relation to the media, my view is and I think its still my view, actually that you would have had to clear the decks. This would have been an absolute confrontation. You would have had virtually every part of the media against you in doing it, and I felt the price you would pay for that would actually push out a lot of the things I cared about, and although, you know I think I say towards the end of my statement: although I think this is an immensely important question , I mean, I dont, in the end not for me at any rate, as the Prime Minister, was it more important than the health service or schools or law and order. ...If you take this on, do not think for a single moment you are not in a long, protracted battle that will shove everything else to one side whilst its going on. 1.18 Speaking directly about the lessons and experience of 1992, Mr Blair said: ...I went through that 1992 election. I remember it. It was etched on my memory, and yes, I was absolutely determined that we should not be subject to the same onslaught.23 Andrew Grice gave a similar sense of the impact which tabloid treatment of Lord Kinnock had and the Labour Partys strong wish to avoid it happening again:24
1.16
1.19
p82, lines 15-16, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-28-May-2012.pdf 21 p81, lines 14-19, Tony Blair, ibid 22 pp14-15, lines 7-12, Tony Blair, ibid 23 p9, lines 3-6, Tony Blair, ibid 24 p78, lines 17-22, Andrew Grice, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-25-June-20121.pdf
20
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The Labour party was haunted by the treatment Neil Kinnock received as Labour leader and they were absolutely determined not to go through that again. They wanted a fair hearing. If they couldnt get the endorsement they wanted a more level playing field; as you know, in the end they got the endorsement. 1.20 Adam Boulton noted not only the Labour Partys close attention to the media after 1992 but also that the Conservatives later adopted a similar closeness to the press. Asked whether he agreed with the words of Mr Blair: ...We paid inordinate attention in the early days of New Labour in courting, assuaging and persuading the media... he said:25 Yes, I would. As I also say, there was a reason for it, as has been cited elsewhere in the Inquiry. The soreness which Labour felt about the 1992 treatment of Neil Kinnock and the feeling that they needed to turn the media around if they were going to have a chance of getting their message across in 1997, but it struck me reading that again how remarkably close that is to some of the remarks that the current Prime Minister made last summer. 1.21 There was open hostility between sections of the press and the Labour Party during the 1980s, most acutely in the Labour Partys refusal to deal with NI as a result of the Wapping dispute. It was to a degree personal. Sections of the press used the power of personal attack and deployed both a sustained campaign of negative and aggressive personal coverage over a long period as well as a more concentrated burst during the 1992 General Election. Labours 1992 election manifesto contained policies which reflected (on Mr Blairs own analysis) the poor relationship between Labour and sections of the press, especially NI. The pledge to implement Sir David Calcutts proposals if self-regulation failed put the party at odds with much of the press, and the promise to call for an urgent inquiry by the MMC into media ownership were, however principled, consciously oppositional. It is worth repeating the real difficulty in determining precisely what impact the negative coverage of Labour politicians had on the outcome of the 1992 election. People do not necessarily agree with the opinions which they read in their newspapers, or they may already be of the same view and need no persuasion. However, it would be idle to suppose that sustained negative coverage had no effect. It is reasonable to conclude that political coverage can influence voting, although it is important not to overstate the degree to which it can or does do so. Perhaps of even greater importance, and certainly easier to discern, is the impact of the 1992 election on perceptions about the power of the press to influence the fortunes of political parties. A belief that improved relations with the press were vital to future election prospects is agreed to have been a cornerstone of New Labours approach, a lesson learned from Lord Kinnocks treatment by sections of the press. The impact of personally hostile media coverage is not exclusively a Labour Party issue. Conservative politicians also bear in mind the fate of Sir John Majors Government which, in time, came to attract coverage every bit as negative and personal as that which Lord Kinnock had endured.
1.22
1.23
1.24
I
1.25
25
pp51-52, lines 24-7, Adam Boulton, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-15-May-2012.pdf
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2. The 1997 general election

2.1 On 21 July 1994, Mr Blair was elected as Leader of the Labour Party, heralding a new era in the relationship between the Labour Party and the media.26 Mr Blair himself told the Inquiry:27 ... by the time I took over the leadership of the Labour Party, wed lost four elections in a row, Wed actually never won two consecutive full elections in our history ... I went through that 1992 election. I remember it. It was etched on my memory and ... I was absolutely determined that we should not be subject to the same onslaught ... We paid inordinate attention in the early days of New Labour to courting, assuaging and persuading the media. 2.2 He described this new era as one of courting, assuaging and persuading the media.28 Mr Blair confirmed that he met Rupert Murdoch on at least one occasion before becoming leader; this was on 15 September 1994 at a private dinner at a restaurant.29 Although Mr Murdoch could not recall the dinner, he accepted in evidence that much of what was attributed to him by a number of sources sounded plausible.30 From this it may be possible to infer that Mr Blair took the opportunity to explain that the Labour Party would not undertake an inquiry into cross-media ownership, and also the state of policy on the statutory recognition of Trade Unions.31 The new strategy appears to have had almost immediate effect. Within just a few days of his election as Labour Party Leader, it was being reported that Rupert Murdoch had stated publicly that he could imagine backing Blair32 (Mr Murdochs evidence was that although he did not remember saying this, it was quite possible that he had).33 On 27 July 1994,34 Mr Blair appointed Mr Campbell (then assistant editor at Today, a NI newspaper)35 as part of his political and election strategy team. Mr Campbell played a prominent role in repositioning the relationship of the Labour Party with the press.36 He became in due course the Prime Ministers Chief Press Secretary in May 1997 and on 15 July 2000 was appointed Director of Communications and Strategy at No 10. Mr Campbell himself stated in evidence that, as soon as he was appointed in 1994, he set himself the objective of ensuring that Mr Blair did not suffer the same fate as Lord Kinnock.
2.3
2.4
2.5
26
p10, Alastair Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-14-May-2012.pdf; pp69-70, Harriet Harman, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/06/Transcript-of-Afternoon-Hearing-12-June-2012.pdf; p8, Lord Mandelson, http://www.levesoninquiry. org.uk/wp-content/uploads/2012/05/Transcript-of-Afternoon-Hearing-21-May-20121.pdf 27 pp8-9, lines 23-6 and p9, lines 20-22, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/ Transcript-of-Morning-Hearing-28-May-2012.pdf 28 p9, line 21, Tony Blair, ibid 29 p41, lines 17-19, Tony Blair, ibid 30 pp61-64, in particular, p64, lines 11-15, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/04/Transcript-of-Morning-Hearing-25-April-2012.pdf 31 p43, line 23, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-28-May-2012.pdf 32 Mullin, C, 2009 A Walk on Part, p20 33 p60, line 16, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-25-April-2012.pdf 34 Campbell, A, 2009, Diaries, Volume 1, p45 35 p1, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Second-Witness-Statement-of-AlastairCampbell.pdf 36 p5, para 7, ibid
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That this meant taking a more strategic and proactive approach to communication and relationships with the media.37 He said this about it:38 In addition to the historic bias against Labour, the Wapping dispute had given rise to real bitterness between parts of the media and the Labour Party, to the extent that the Party did not communicate with, for example, some of the Murdoch titles. Also other titles like the Mail and the Express were so supportive of the Tories, and hostile to Labour, that our people tended to avoid them. We changed that approach very deliberately. Part of our message was that there was no part of public opinion we were afraid of and where we would not take the basic arguments of Labour. 2.6 Mr Blair appointed Lord Mandelson (then MP for Hartlepool) to manage the Labour Partys general election campaign. Lord Mandelson described his role as follows:39 Now, part of that was to reassure the media that we werent the same Labour Party, and that, in a sense, trying to persuade them that we were no longer the toxic brand of the 1980s you could describe as an attempt to sort of neutralise, to sort of take the roughest edges off their hostility to us. 2.7 On 17 July 1995, Mr Blair accepted the invitation of Mr Murdoch and News Corp to attend their conference at Hayman Island and to deliver a speech. In evidence to the Inquiry, Mr Blair said:40 ... I would strongly defend that decision. It is important to understand that the Murdoch press (a) represented a large part of the media with large numbers of readers i.e. voters and (b) had been viscerally hostile to the Labour Party. The fact is I was changing the Labour Party to become New Labour ... The continued hostilities between the Murdoch Group and Labour had no rationale to it given our changes and the fact that the Conservative Government was running out of steam. Actually, my speech held closely to all the policies I believed in. 2.8 He added:41 I had a minimum and maximum objective. The minimum objective was to stop them tearing us to pieces and the maximum objective was, if possible, to open the way to support. Now, actually, the speech I gave yes, of course you had to balance it very carefully. Theres no policy I changed, and actually in the speech I went out of my way and we were very careful about this to make sure I emphasised support for minimum wage, union recognition, pro-European position, increases in public investment, all of which may not have been what they wanted to hear. On the other hand, what I felt perfectly comfortable in doing was saying and this I was perfectly comfortable with saying This Labour Party is going to be a party of aspiration, not merely redistribution. Its going to be a party thats going to appeal to the emerging aspirant working class. Its going to be a party that is essentially about creating a meritocratic society and expanding opportunity and its not going to go back to the old ways. But that was a message I was determined to give to the country.
p6, para 7, ibid p7, para 8, ibid 39 p10, line 22, Lord Mandelson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-21-May-20121.pdf 40 p7, para 21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Tony-Blair1.pdf 41 pp63-66, line 21, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-28-May-2012.pdf
38 37
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... But what is important, I think, to emphasise ... I actually did have in all the things that we were committed to they wouldnt like. I was also because I was having to watch my other audience as well. 2.9 Mr Murdoch put it this way:42 I distinctly recall Mr Blairs address at our conference on Hayman Island. He spoke convincingly of the ability of a new Labour Party to energise Britain. I do recall believing that Mr Blair and the policies he advocated could help revitalise Britain, and sharing that view with newspaper editors at the conference, who were also impressed by Mr Blairs speech. 2.10 He also confirmed that he may well have said the following when thanking Mr Blair for his speech:43 If our flirtation is ever consummated, Tony, then I suspect we will end up making love like porcupines, very, very carefully. 2.11 The different perceptions and perspectives on the dynamics of this interaction interested the Inquiry. Mr Murdoch was keen to impress on the Inquiry a view that all the power and influence lay with politicians, but Mr Blairs evidence and autobiography were very different.44 He spoke of feeling this pretty intense power in the relationship (although Mr Murdoch was not mentioned by name in this context).45 This contrast was particularly striking. Mr Murdoch:46 As for the value to me of these meetings, my view is that if an editor or publisher is invited or otherwise has an opportunity to meet with a head of government or political leader, you go... Mr Blair:47 Again, now, it seems obvious: the countrys most powerful newspaper proprietor, whose publications have hitherto been rancorous in their opposition to the Labour Party, invites us into the lions den. You go, dont you? 2.13 Shortly after the Hayman Island speech, on 17 and 21 July 1995, editorials were published in The Sun which were broadly supportive; Mr Blair, it was said, has vision, he has purpose and he speaks our language on morality and family life.48 But Mr Murdochs evidence recalled
2.12
p23, para 94, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Keith-RupertMurdoch2.pdf 43 p66, lines 12-17, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-25-April-2012.pdf 44 Blair, T, A Journey, September 2010 45 p4, line 18, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-28-May-2012.pdf; he later referred to the few people of the press having substantial power, p56, line 24, ibid 46 p22, para 90, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Keith-RupertMurdoch2.pdf 47 Blair, T, A Journey, p96 48 p2, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-30.pdf; p2, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-31.pdf
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that the editorials also noted that a number of questions about Mr Blairs policies remained unanswered at that stage. 2.14 Shortly before the 1997 election, Mr Blair wrote two articles in The Sun about the Labour Partys commitment to a referendum on the Euro: Im a British Patriot on 17 March 1997 and My Love for the Pound on 17 April 1997. Mr Campbell recalled that it had been made clear to him by the editor of The Sun that, if Mr Blair were to emphasise the point in these articles that there would be no entry into the Euro without a specific referendum on the issue, and that he understood peoples fears about a so-called European super-state, this was likely to be the final piece of the jigsaw before Mr Murdoch agreed that the paper would back the Labour Party at the election.49 Mr Campbell and Mr Blair both emphasised to the Inquiry that they did not tailor their policies to seek favour from the proprietor of The Sun. Instead, they sought to highlight those parts of Labour Party policies which might appeal to Sun readers.50 Mr Campbell noted, as an example, that holding a referendum on the Euro was already official policy long before The Sun made the request it did.51 In other words, there was alignment. There were also concessions in rhetoric.52 The landslide victory of New Labour in 1997, and the decisive defeat of Sir John Major, have been widely analysed. Policies, personalities and the public mood on the one hand, and the press on the other, were all in the same place. The press no doubt both reflected and affected public opinion, in immeasurable proportions. Mr Murdoch generally backed the winning side (although he also stated that he sought to judge the candidates on the issues, not on whether they were likely to win).53 Mr Campbell put it this way:54 Again, I do not believe that the papers swung the result, though they may have helped increase the majority because of the sense of momentum we were able to gather. I believe the Sun backed us because they knew we were going to win: we did not win because they backed us. But it is certainly the case that we very deliberately set out to get our voice and our arguments heard in papers normally hostile to us, and that this had the positive political impact we sought. 2.17 Mr Blair was asked to comment on a passage from Chris Mullins diaries dealing with the dinner between him and Mr Murdoch on 15 September 1994:55 Q. If he thinks were going to win, hell go easy on us, but if he thought we could lose, he would turn on us. He [Mr Blair] added: If the press misbehave badly during
2.15
2.16
p11, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Second-Witness-Statement-ofAlastair-Campbell.pdf 50 p68, lines 14-22, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-28-May-2012.pdf 51 p11, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Second-Witness-Statement-ofAlastair-Campbell.pdf; p84, lines 16-25, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/ Transcript-of-Morning-Hearing-28-May-2012.pdf 52 p31, line 3, Lord Mandelson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-21-May-20121.pdf 53 pp56-57, lines 12-9, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcriptof-Morning-Hearing-25-April-2012.pdf 54 p7, para 9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Second-Witness-Statement-of-AlastairCampbell.pdf 55 pp55-56, lines 1-15, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-28-May-2012.pdf, Mr Mullin is diarising a conversation he had with Mr Blair on 17 November 1994. The direct speech is Mr Blairs
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the election campaign, I will stop everything for two days and well have a debate about what theyre up to, who owns them, the lot. Then Mr Mullin: Did you say that to Murdoch? And your answer: Not in so many words. Is that an accurate gist then of your conversation with Mr Mullin? A. I think it is. I mean, as I say, this is going back 18 years or 17 years now, but certainly that was my attitude. I think now, by the way, I would have a slightly different view. In other words, I think there was a view of Rupert Murdoch, which I think Paul Keating speaks to the same effect, which is that he just backs the winner. My view now is its not as simple as that actually. There are very strong political views and those actually do come first, I think, or put it like this: theyre equal first, lets say, with whatever interests he feels in being on the winning side or the losing side, and you know, so Im not my view of this now is if hed been persuaded I mean, it looked as if we were going to win, so you didnt have to be a genius to think we had a good chance of winning, although when youve lost four a row, by the way, you never think its that clear. So Im not sure I would have the same view now about that, but that may well have been what I said to Chris and to and yes, look, if Id ended up in a situation where they turned on me, I would have had to fight back. You know, theres no that would have been the only recourse. And we werent in 1992, we werent really in a position where we were able to fight back, but this time we would have.
3. prime Minister blair: 1997 2007

3.1 Mr Blair took an early step, by way of the Civil Service Amendment Order in Council 1997, to appoint Mr Campbell to an unprecedented position, a political or Special Advisor role with the power to instruct permanent civil servants.56 An indication of the considerable importance attached to news management strategies in the early years of the administration, it proved in the end to have been a highly controversial step, which has not been subsequently repeated. Lord ODonnell viewed the matter in this way:57 ... [this amendment] blurred those lines between what a special adviser does and what civil servants do, and I think, with the benefit of hindsight, it didnt work as well as it should have done because it created the idea that the civil servants were obeying some rules by someone who was politically appointed, which meant that they also would be politically biased, and so it ... I dont think it was a good idea. I was very pleased when it was abandoned, and I did advise that it should be abandoned, and thats very good. I dont think its an experiment we will try again, I hope. 3.2 3.3 Mr Blair himself observed with the benefit of hindsight: in the event, apparently, we didnt need [it].58 Mr Campbell told the Inquiry that many of the other changes relevant to relations between Government and the media made by Mr Blair during his time as Prime Minister were designed to ensure that politics, and media coverage of it, was more on the record, in an effort to make politics more accessible to the public.59 These included lobby briefings both being put on the record and made available online, monthly Prime Ministerial press conferences, and the agreement that Mr Blair would attend select committees in addition to answering Prime
In the result, only two such Special Advisors were appointed p52, lines 2-12, Lord ODonnell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-14-May-2012.pdf 58 p9, para 26, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Tony-Blair1.pdf 59 p19, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Alastair-Campbell.pdf
57
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Ministers Questions. These changes addressed the more formal aspects of the relationship between the press and politicians; not all of them were popular on the press side. Adam Boulton said:60 After 2003 Tony Blair attempted to restore media relations by establishing regular monthly news conferences. He honoured these punctually even when the chosen date coincided with a crisis. However, they were never popular with the press who felt the electronic media benefitted disproportionately and neither Brown nor Cameron have continued with regular extended news conferences. 3.4 Mr Blair articulated his overall strategy in this way:61 My view was this: I, as say, took a strategic decision that this was not an issue that I was going to take on ... when I came to office ... there was a whole set of things we wanted to do. My view, rightly or wrongly, was that if in those circumstances, I had said Right, Ive decided what Im going to do is take on the media and change the law in relation to the media, my view is that and I think its still my view actually that you would have had to clear the decks. This would have been an absolutely major confrontation. You would have had virtually every part of the media against you doing it, and I felt that the price you would pay for that would actually push out a lot of the things I cared more about. 3.5 He added:62 Wed ... been out of power for 18 years. We got into a rhythm which is very much the rhythm of opposition. So we were still, as it were, campaigning, you know, in the first few months, possibly the first year of government, but frankly after that time, you got into a proper rhythm of government and we had a very strong media operation.... 3.6 Mr Campbell said:63 I dont make any apology for the changes we made in opposition because they helped us to win. I dont make apologies for the changes we made in government because they helped us to communicate more effectively and I think that helped the Prime Minister to govern more effectively. What I do accept is that at times, we probably were too controlling, that at times we did hang on to some of the techniques of opposition when we should have dumped them at the door of Number 10, but Id also ask you to bear in mind the sheer volume of issues we were expected to deal with, be on top of. 24/7 media means just that. You are dealing with this 24 hours a day at a time when, in my case, also trying to be in charge of overall strategy as well. 3.7 The issue which has been much analysed subsequently is the extent to which the transition from Opposition to Government ought properly, in the public interest, to be reflected in
p10, para 47, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-AdamBoulton.pdf 61 p13, lines 14-16, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-28-May-2012.pdf 62 p10, lines 17-22, Tony Blair, ibid 63 pp72-73, line 24, Alastair Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-14-May-2012.pdf
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distinctive and observable differences in the conduct of relations between politicians and the press. As Lord Mandelson put it:64 Because of the particular and specific public duties of a minister, and the requirement for these to be carried out in a transparent and accountable manner, my strictures would apply more to government than opposition politicians, but not exclusively. And, of course, the circumstances of a ministers job are very different from opposition. The intensely scrutinised fishbowl world of government places incredible demands on the time, energy and focus of those who inhabit it. Ministers have less and less time in the day for policy deliberation and formulation because of media (as well as parliamentary) demands. On the other hand, politicians ministers in particular have greater opportunities than ever to communicate directly with electorates. 3.8 Mr Blairs Government enjoyed a honeymoon period with the press; Mr Campbell summarised the trajectory in this way:65 Though the press largely turned against him at various stages of his premiership, and some continue to campaign relentlessly against him even now, we did have a fairly benign media environment for some years, and by the time they turned, most of the public knew him well enough to have a fairly settled view. 3.9 And, in Lord Mandelsons view:66 I think Mr Blair ... rescued and made good Labours relations with the media. I think he was two or three years into government and they started taking a further dive, and climaxed, in a way when they became their worst at the time of the Iraq War. 3.10 The personal dimension of the relationship is, again, an interesting one. Mr Blair took the view that, as time wore on, he, and more particularly his family, were often unfairly subjected to personal intrusion and attack. Although the Blairs were friendly with the Rothermeres, he cited the Daily Mail as being, from his perspective, particularly personal in this respect. He said:67 68 The fact is, if you fall out with the controlling element of the [newspaper] ... you are then going to be subject to a huge and sustained attack. The [newspaper] for me theyve attacked me, my family, my children, those people associated with me, day in, day out, not merely when I was in office but subsequent to it as well. So that is and they do it very well, very effectively, and its very powerful ... With any of these big media groups, you fall out with them and you watch out, because it is literally relentless and unremitting once that happens and my view is that what creates this situation in which these media people get a power in the system that is unhealthy and which I have felt, throughout my time, uncomfortable with.
p5, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Lord-Mandelson. pdf 65 pp20-21, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Alastair-Campbell. pdf 66 pp99-100, line 23, Lord Mandelson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-21-May-2012.pdf 67 p33, lines 12-25, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-28-May-2012.pdf 68 Associated Newspapers Ltd has robustly denied these allegations, and Mrs Cherie Blair has submitted further evidence in support of them. The Inquiry is in no position to adjudicate as between them http://www.levesoninquiry. org.uk/wp-content/uploads/2012/11/Witness-Statement-of-Cherie-Blair1.pdf
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In May 1997, the relationship between Mr Blair and Mr Murdoch was not close; they had only met on a handful of occasions and there were references in Mr Campbells diaries to Mr Blairs ambivalence about such meetings (...he felt that there was something unpleasant about newspaper power and influence), although he recognised their importance and value.69 The relationship grew closer although, on Mr Blairs account, did not develop into personal friendship until after 2007 by which time he had left office.70 Lord Mandelsons evidence was along these lines:71 It is also arguably the case, however, that personal relationships between Mr Blair, Mr Brown and Rupert Murdoch became closer than was wise in view of the adverse inference drawn from the number of meetings and contacts they had.
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Mr Blair did not accept that his relationship with Mr Murdoch was too close in that sense. He spoke more generally of the danger of relationships which were unhealthy; he said:72 ...but the relationship is one in which you feel this this pretty intense power and the need to try to deal with that... that is to say by managing rather than confronting it,73 by building a relationship with Mr Murdoch and others within NI. This entailed meetings and contact in private as well as in an official context.
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Mr Blairs relationship with Rebekah Brooks may well have been warmer, when he was in power, than his relationship with Mr Murdoch. Although Mr Blair was careful to point out that Mrs Brooks was not a key decision maker within the company,74 he accepted her characterisation of him being a constant presence in her life.75 Mr Blair also accepted that, after his third election victory in 2005, both Mrs Brooks and Mr Murdoch were a sympathetic pair of ears in an increasingly hostile media landscape.76 As with Mr Murdoch, Mr Blair said his personal friendship with Mrs Brooks did not really develop until after he left office: as he put it, when free from the constraints of power.77 Both Mr Blair and Mr Campbell emphasised to the Inquiry that, viewed objectively, there were many aspects of the Governments media policies which ran contrary to the interests of NI:78 I mean, if you just look at the big policy decisions we took, the biggest in the media sphere is probably the rise of the BBC licence fee. They werent terribly happy about
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Campbell, A, Diaries Volume One: Prelude to Power 1994-1997, pp631 and 634 in particular p23, para 92, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Keith-RupertMurdoch2.pdf; p80, lines 1-7, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcriptof-Morning-Hearing-28-May-2012.pdf. It was in 2010 that Mr Blair became a godfather to one of Mr Murdochs daughters 71 p6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Lord-Mandelson.pdf 72 p4, lines 19-20, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-28-May-2012.pdf 73 p4, lines 22-23, Tony Blair, ibid 74 p72, lines 2-3, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-28-May-2012.pdf 75 p74, lines 2-6, Tony Blair, ibid 76 p53, lines 6-8, Tony Blair, ibid 77 p80, lines 3-7, Tony Blair, ibid 78 pp19-20, lines 24- 9, Alastair Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcriptof-Afternoon-Hearing-14-May-2012.pdf
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that. Ofcom, I think Mr Murdoch said in his evidence, not terribly happy about that. He tried to take over Manchester United and was blocked. The digital switch, there were differences. ITV, Channel 5 there were lots of areas where youd be hardpressed to say that the Murdochs and the Murdoch businesses were getting a good deal out of the Labour government. 3.16 Again, although the party changed its policy in relation to the Euro notwithstanding Mr Blairs sympathy in principle with the idea of entering the single currency, the fact that the eventual Government position aligned with Mr Murdochs is explicable by reference to very many objective factors. The perception of influence has, however, been a persistent point of debate. In March 1998, Mr Murdoch confirmed to The Times that he had requested Mr Blair to ask the Italian Prime Minister, Romano Prodi, whether the Italian Government would allow Mr Murdoch to acquire Mediaset, Italys leading commercial television network. It should be noted that Mr Murdochs intention was not that Mr Blair seek to persuade his Italian counterpart to waive the bid through, in obvious contravention of EU and domestic law, but rather that Mr Blair ascertain whether it was worth his making a formal bid, given that he was not an Italian or EU national. The acquisition did not in the event proceed. Mr Blair confirmed that he did speak to Mr Prodi about Mr Murdochs proposed acquisition of Mediaset, but that the call had come from Mr Prodi himself and had not been initiated by Mr Blair. He said he had asked about the proposed acquisition, and Mr Prodi had communicated to him that he wanted an Italian purchaser for Mediaset. Mr Blair explained that he would have done the same for anyone with substantial British interests:79 ... the call was initiated from Romani Prodi, and basically I ... raised the issue of whether the idea of having someone from the outside come and own part of Mediaset would be resented or not. He gave me an answer and I cant remember how it was relayed back, but Im sure it was. But my point is that I would have done that for anyone with substantial British interests. I would have done that if another media group had asked me to do it. 3.19 In his evidence, Mr Campbell quoted a contemporaneous No 10 briefing he had given on the issue, and added:80 The call from Prodi was not about [the proposed acquisition] ... It was about something completely different, and Prodi had asked for us not to brief on it... Rupert Murdoch had mentioned this company to the Prime Minister and the Prime Minister, as I recall we did have a discussion about whether there was anything wrong in him raising it. In the end he didnt raise it until this phone call came along on something else and he mentioned it and Prodi said words to the effect that Murdochs wasting his time and I dont think it went any further. 3.20 Whether Mr Blair would have telephoned Mr Prodi to intervene on Mr Murdochs behalf had the latter not telephoned him first on another matter is unclear. In any event, taking full account of the fact that Mr Murdoch was seeking very limited benefit from the intervention,
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p94, lines 4-14, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-28-May-2012.pdf 80 pp27-28, line 5, Alastair Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-14-May-2012.pdf
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what may be more important is what can be inferred from the fact that Mr Murdoch was able to ask the Prime Minister to make the enquiry in the first place.81 3.21 The war in Iraq was a landmark event in Mr Blairs political fortunes. Some commentators82 have argued that Mr Blairs decision to go to war in Iraq was influenced by Mr Murdochs firm and enthusiastic views on the subject. Mr Blair rejected that suggestion:83 I disagree completely with Paul Dacres assertion over Iraq. I had a view about this issue. I was prepared to lose a vote and resign over it. I had taken a position since 9/11 to stand with the US. I strongly believed it was right to remove Saddam Hussein. It is correct I spoke to Rupert Murdoch in the days leading up to the vote. I cant recall at whose instigation. I would have obviously wanted to explain what I was doing and why to the Head of Media Group that was most disposed to support the action; but I had long since made up my mind on it and the notion that I required lobbying by him or anyone else is plain wrong. And I have no doubt that the Mail would have attacked me whichever course I took. 3.22 Mr Blair was asked by the Inquiry about three telephone calls made on 11, 13 and 19 March 2003 in the run up to the Iraq War. He said this:84 Look, this is a huge issue, obviously. I mean, my recollection is that I initiated one of those calls. I actually remember only two, but the records show there were three, although I think they were no more than 45 minutes in total for all three. But you know, I would have been wanting to explain what we were doing, and I did this I think I had similar calls with the Observer and the Telegraph, and indeed I had a lunch later with the Guardian. So you know, I think thats its not I wouldnt say theres anything particularly unusual or odd about that when youre facing such a huge issue. Now none of these calls was particularly long, but they were important... I think with him, probably, I would also have been asking him what the situation was in the US, for example, in Australia, which were also major parts of the coalition. But no, it would not have been about the tone of the coverage. I mean, look, they were supportive of it and that was that. 3.23 Although Mr Blair did not have a clear recollection of the precise content of these calls (and nor did Mr Murdoch when asked about them), it is interesting that he made time to discuss these issues with a newspaper proprietor speaking from the USA. It is also interesting that Mr Murdochs 173 newspapers worldwide all supported the war. In his evidence to the Inquiry, Mr Blair explained that although he had considered throughout his period of office that, while he had views about press conduct and standards, addressing them was not a priority, by the time he had come to the end of his term as Prime Minister he had concluded that the issue had become far more pressing.85 On 12 June 2007, approximately two weeks before leaving office, Mr Blair gave a speech on Public Life to the Reuters Institute
3.24
It may not be an uninteresting parallel that Mr Murdoch felt able to contact Mrs Thatcher, the then Prime Minister, at the time that he was seeking to acquire The Times and The Sunday Times 82 p117, line 5, Paul Dacre, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-AfternoonHearing-6-February-20121.pdf 83 p8, para 25, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Tony-Blair1.pdf 84 pp50-51, line 13, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-28-May-2012.pdf 85 p14, line 23, Tony Blair, ibid
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of Journalism, in which he made some trenchant criticisms of the press, famously describing at least sections of the industry as feral beasts. 3.25 He made four specific points:86 The media is increasingly and to a dangerous degree driven by impact... First, scandal or controversy beats ordinary reporting hands down. News is rarely news unless it generates heat as much as or more than light. Second, attacking motive is far more potent than attacking judgment. It is not enough for someone to have made an error of judgment. It has to be venal. Conspiratorial ... But misconduct is what has impact. Third, the fear of missing out means todays media, more than ever before, hunts in a pack. In these modes it is like a feral beast, just tearing people and reputations to bits. But no one dares miss out. Fourth, rather than just report news, even if sensational or controversial, the new technique is commentary on the news being as, if not more important, than the news itself. 3.26 He suggested that the relationship between public life and media [was] ... now damaged in a manner which [required] repair, that a way needed to be found to ensure that the press remained accountable, and that serious concerns about unbalanced reporting would be addressed in the future. He noted that broadcasting, for example, was regulated by Ofcom.87 The speech was almost universally criticised by the press itself. The Daily Telegraph on 13 June 2007,88 carried a headline Blairs Last Enemy: Freedom of Speech above an article which, while accepting that some of the points that Mr Blair had made were valid, considered his call for reform would impair freedom of speech and the liberties of the subject...[and] eventually make them obedient to the government of the day, and concluded that ... we do find his argument deeply disturbing, founded on false premises and worthy of the strongest refutation.89 A Mail Online article of the same date was headlined The Magnificent Self-Delusion of Mr Blair.90 It also rejected the idea of statutory regulation, describing such thoughts as decidedly sinister and suggested that it was odd for Mr Blair to attack the press in this way, as he had enjoyed for most of his years as Prime Minister a more approving and more docile press than any British leader in living memory. It went on to assert that for the most part, the media acted like a great sloppy Labrador which repeatedly bestowed its affections on Mr Blair.91 A Guardian leader of 13 June 2007 was headed Right Sermon, Wrong Preacher.92 It considered the speech to be a heartfelt homily which deserved a serious response, but noted that it is pretty rich to be lectured on such matters by this prime minister who, more than any other, has marginalised parliament through a combination of sofa government, selective leaking and sophisticated media manipulation. The article concluded:93
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ibid ibid 88 The Telegraph, 13 June 2007, http://www.telegraph.co.uk/comment/telegraph-view/3640592/Blairs-last-enemyfreedom-of-speech.html 89 ibid 90 Stephen Glover, 13 June 2007, http://www.dailymail.co.uk/news/article-461603/The-magnificent-self-delusion-MrBlair.html 91 ibid 92 The Guardian, 13 June 2007, http://www.guardian.co.uk/commentisfree/2007/jun/13/media.pressandpublishing 93 ibid
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It has been a consistent pattern witness terror briefings to the Sunday newspapers. Truly, he helped feed the animal he now wants to chain. 3.30 Mr Campbell confirmed that the issue of addressing press standards had been discussed in 2002 and 2003 but not pursued.94 In an article in the Guardian published in July 2011,95 Lord Mandelson reflected that we were cowed from reforming the media.
4. Prime Minister Brown: 2007 2010

4.1 The Rt Hon Gordon Brown MP was Prime Minister between 27 June 2007 and 11 May 2010. Mr Brown was asked to comment on the strategy New Labour adopted in the mid-1990s; he said:96 My efforts were to persuade every media group that what we were doing was serious. Look, we were trying to rebuild the National Health Service, improve our education system, get more police onto the street, legislate for freedom of information. We had agendas on civil liberties, on issues like gay partnerships. All these issues, you needed to have an understanding, at least, on the part of the media, and you needed to talk to them. As for any particular media group, I dont think I was involved in any sort of way that I would feel uncomfortable about now with any particular media group at all. 4.2 Mr Brown said that he had few dealings with Rupert Murdoch at this stage, and by implication that close engagement with the press was left to others.97 He also stated that he had no involvement in what he called the particular issue of winning the support of The Sun in March 1997.98 Mr Brown said that he had intended from the start of his premiership to set a new tone in the Governments relationship with the press. He explained that he was concerned to ensure fair access to Government, including by meeting regularly with all media groups without giving preferential treatment to anyone. Mr Browns evidence, however, was that he faced a hostile press almost from the very outset, and that the hostility came to be of a very personal nature. Lord Mandelson said:99 Mr. Brown comes in and he has good, rather easy relations with the media. It didnt last, as we know. It took a very significant dive.
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Mr Brown described his initial approach:100 When I came in in 2007, we had no mandate in our manifesto to propose reform of the media. I did want to make a change, and I did try to move away from what I
p45, lines 2-8, Alastair Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-14-May-2012.pdf 95 http://www.guardian.co.uk/profile/petermandelson 96 pp48-49, lines 24-11, Gordon Brown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-11-June-2012.pdf 97 pp45-49, passim, Gordon Brown, ibid 98 p51, line 9, Gordon Brown, ibid 99 p100, lines 2-5, Lord Mandelson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-21-May-2012.pdf 100 pp21-23, lines 22-12, Gordon Brown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Morning-Hearing-11-June-2012.pdf
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thought was the excessive dominance of what is called the lobby system, and what really has led to these allegations of spin I tried to move away from that. One, we moved away from having a political chief of communications to having a civil servant doing the job. That was to send a message that we were not trying to politicise government information; we were trying to give the information that was necessary for the public to understand what was happening. We then tried to move back to a system where announcements were made in Parliament. They were not pre-briefed, they were made in Parliament, and therefore that moved away from a system where, to be honest, there were a selected group of people who previously could expect to get early access to information, and I think thats been a problem with the way the media system has worked, but Im afraid it was wholly unsuccessful, and I see that the current government have moved back to having a political appointee and the lobby system remains intact. Its not the lobby system per se thats the problem, its this small group of insiders who get the benefit of early access to information, and I think that is one of the problems that prevents the greater openness that we have to see. The changes that eventually we tried to make we didnt make successfully Im afraid because there was a huge resistance to them, and to be honest, if you announce something in Parliament or announced it in a speech, it was not being reported. Unless it had been given as an exclusive to a newspaper, they tended to put in on page 6, rather than page 1. 4.6 In relation to changes to the lobby system, Mr Boulton commented:101 ... Under the Brown and Cameron governments there has been a concerted attempt by press colleagues to use the Lobby system to constrain their competitors in the electronic media by imposing artificial embargos on information given in order to benefit print deadlines. This practice is particularly irksome on foreign trips in different time zones and has resulted in several calls to ban Sky News for allegedly breaking the rules. Downing Street habitually takes the side of print on the pathetic ground that weve got to give the hacks something to justify the cost of the trip. 4.7 In June 2007 the personal relationship between Mr Brown and Mr Murdoch was said to be close, and appears to have become so over the preceding years. However, by September 2009 it had cooled, associated with a shift in political support in The Sun. As Lord Mandelson explained:102 Q: You presumably detected that shift in support, which was gradual, from Mr. Brown to Mr. Cameron; is that right? A: Yes. That was during 2009. Yes, during the course of that year. Q: Had you seen signs of it the previous year in 2008? A: It was hard not to get Rebekah Wade, or Brooks, as she became, to wax eloquent about the inequities of Gordon Brown and the so-called coup against Tony Blair. She had strong views. I remember on one occasion ... she tipped into this great tirade against Gordon and these others who had brought Tony down and whatever, and
pp9-10, paras 45-46, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-ofAdam-Boulton.pdf 102 p67, lines 1-14, Lord Mandelson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-21-May-20121.pdf
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Mr. Murdoch said For goodness sake Rebekah, cant you let history be history? Let bygones be bygones. Lets not go into that anymore. 4.8 Lord Mandelsons focus was on the personalities involved, but Mr Brown chose to emphasise what he called NIs public agenda:103 News International had a public agenda. Whats remarkable about what happened in the period of 2009 and 2010 is that News International moved away from being I think it was under James Murdochs influence, not so much Rupert Murdochs influence, if I may say so to having an aggressive public agenda ... I dont think I had a conversation with Mrs. Brooks in the last I think I had one conversation in the last nine months of our government. It became very clear in the summer of 2009, when Mr. Murdoch junior gave the MacTaggart lecture, that News International had a highly politicised agenda for changes that were in the media policy of this country, and there seemed to me to be very little point in talking to them about this. 4.9 In terms of his personal relationship with Mr Brown, Mr Murdoch expressed the matter in this way:104 I felt a personal connection with Gordon Brown. He is Scottish, as was my grandfather, and we spent time discussing the fact that we are both descended from a long line of Presbyterian ministers. He gave me a lovely gift, a book of his fathers sermons. My wife and his also developed a friendship, and my children and his played together... I certainly thought we had a warm personal relationship. ... My personal feelings about Mr. Brown did not change my view that, just as I had earlier concluded that the Conservative Party had grown tired in its approach in 1995, I concluded in 2010 after 13 years of Labour Party rule the country needed a change. I am afraid that my personal relationship with Mr. Brown suffered after The Sun no longer supported him politically. I continue to hold him in high personal esteem. 4.10 Mr Browns evidence was as follows:105 Q: Mr. Murdoch himself describes a warm relationship he had with you. Is this a fair characterisation? A: Yeah, I think the similar background made it interesting because I think I understood where many of his views came from, and I do also think hes been, as I said ... a very successful businessman, and his ability to build up a newspaper and media empire, not just in Australia but in two other continents, in America and Europe, is something that is not going to be surpassed easily by any other individual. But I think you have to distinguish again between the views that you have about him as an individual and the red line that I would draw, the line in the sand I talked about, between that and any support for commercial interests ... Q: Were you not concerned at ... the signs of The Sun moving away from you to support the Tory Party?
pp37-39, Gordon Brown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-MorningHearing-11-June-2012.pdf 104 p25, paras 101 and 104, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-ofKeith-Rupert-Murdoch2.pdf 105 pp46-52, lines 16-10, Gordon Brown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Morning-Hearing-11-June-2012.pdf
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A: I think that happened from the time I became Prime Minister. Ill be honest. I think they had severe reservations that were expressed in the European campaign, the Broken Britain campaign, their Afghanistan campaign, and I think, as I said, also there was a new agenda that Mr. James Murdoch was promoting about the future of the media policy in Britain. So I was not surprised at all when The Sun I was perhaps surprised about the way they did it ... but the act of deciding to go with the Conservatives, I think, had been planned over many, many months. 4.11 On a personal level, Mr Brown was also quite close to Mrs Brooks and his wife, Sarah, was described as a good friend. In the context of coverage of his sons medical condition, which is considered above,106 Mrs Brooks explained:107 You have to remember that the this is 2006. This is only five years later that Mr Brown had ever said anything that he was in any way concerned about my behaviour, the behaviour of the Sun, how we handled it. Indeed, after 2006, I continued to see them both regularly. They held a 40th birthday celebration party for me. They attended my wedding. I have many letters and kind notes. Sarah and I were good friends... 4.12 Neither Mr Brown nor Mr Murdoch accepted that their relationship had been too close during Mr Browns time as Prime Minister, nor that NI had provided support for Mr Brown or his Government in its newspapers on the express or implied basis that the companys commercial interests would be safeguarded or wider political agendas espoused. Asked about this, and whether there could even have been legitimate concerns about perception, Mr Brown told the Inquiry:108 No, because the implication is that I would be influenced by Mr. Murdoch was saying about these big issues. I mean, I thought that it was wrong to join the euro ... but I didnt agree with him on most of these other issues, and the idea that Mr. Murdoch and I had a common bond in policy is, Im afraid, not correct. Mr. Murdoch was probably more on the flat tax school of policy than in the school of policy that was identified with what we were doing. ... I have never asked a newspaper for their support directly and Ive never complained when they havent given us their support. I dont think you should be dependent on people by begging them to support you in this way, and perhaps its a failing on my part that I never asked them directly, but I never asked them directly and I never complained to them directly when they withdrew support from the Labour Party. 4.13 The issue of the so-called pyjama party held at Chequers to mark Mrs Murdochs fortieth birthday has, however, been cited as evidence of a legitimate cause of concern about the blurring of relationship boundaries between the personal and the conduct of public affairs. Commentators such as Mr Boulton spoke of this in extremely critical terms:109 Well, I think you can be blamed with hindsight if a lot of people think it looks wrong, and you know, the famous Wendi Deng pyjama party, for example. I remember
Part F, Chapter 5 p43, lines 2-9, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-11-May-2012.pdf 108 p47, lines 11-21, Gordon Brown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-11-June-2012.pdf 109 p88, lines 9-20, Adam Boulton, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-15-May-2012.pdf
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a then member of the cabinet telling me about that at the time and I just thought: This is completely bonkers that this sort of intimacy is being indulged in between the Prime Minister and the Prime Ministers wife and a senior proprietors wife, and I thought at the time, you know, it will end in tears. But we all find ourselves in social circumstances or awkward social circumstances which we perhaps have been recruited for, which we didnt seek out but weve ended up in. 4.14 Mr Brown described himself as having been unfairly and personally hurt by an attack in The Sun following the publication of a handwritten letter he had sent to the mother of a soldier killed in Afghanistan. Email correspondence between Mr Brown and Mr Murdoch ensued,110 following a telephone conversation which took place on or about 10 November 2009.111 A number of commentators have suggested that Mr Brown had enjoyed a close relationship with Daily Mail editor Paul Dacre and that, although their political perspectives differed, they shared similar values. About that he said this:112 A. I didnt see Mr Dacre that much, as you can see from the records. Mr Dacre and I disagreed about many things on politics. I think he, like me, believes that there should be an ethical basis for any political system and that that is an issue that is not properly addressed both in our media and in our politics, so there is sort of common ground on that, even though we may disagree about what that means in practice. He was personally very kind, as Rupert Murdoch could be personally very kind, when we had difficulties with our child, our first child, and I have not forgotten that. But to be honest, I got no support from the Daily Mail. The Daily Mail was totally against the Labour Party, and when it came to the election, you may see that I had a meeting with Lord Rothermere, as I talked to Paul Dacre, and I said, Look, youre entering a situation where you have a party thats got a relationship with the Murdoch empire and their commercial interests and you should be very wary of it, and I did warn them that that was one of the problems that was going to happen. Q. Some have said, including Mr Alastair Campbell, that the Daily Mail was less hostile to you personally when you were chancellor, owing in part to your position on the euro. Do you think thats a fair comment or not? A. I dont know whether it was. Look, one of the huge dividing lines in British politics over the past 10 years has been the euro. Most of the newspapers, of course, were against it. I was in a minority within our government for a very long period of time of being sceptical about the euro. My colleague, Ed Balls, who was the economic adviser to the Treasury at the time and was later a Member of Parliament, did this enormous amount of work that proved to my satisfaction that the euro couldnt work, but it was a hugely divisive issue. But if the Daily Mail supported the objections that I had to the euro, then thats absolutely understandable, but Im afraid to say on just about every other issue they were wholly against us and they wanted to see a Conservative government, as you know. 4.16
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4.15
In his oral evidence Lord Mandelson explained his perspective in this way:113
pp2-3, Gordon Brown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-GB-1A1.pdf; pp2-3, Gordon Brown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-GB-1B1.pdf 111 pp1-6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-GB6-to-Witness-Statement-ofGordon-Brown-MP-Black.pdf 112 pp70-71, lines 3-18, Gordon Brown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-11-June-2012.pdf 113 pp63-64, lines 1-19, Lord Mandelson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcriptof-Afternoon-Hearing-21-May-20121.pdf
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Q: Did he become an ally of Mr. Dacre or vice versa? A: He was, much to our astonishment, incredibly close to Mr. Dacre. Im not saying that its wrong to be a friend of Mr. Dacre; I too sometimes enjoyed Mr. Dacres company. I enjoyed his company more than his treatment of me in his newspapers. But he Gordon and Paul Dacre had a great friendship and I remember Paul Dacre describing to me the virtues of Mr. Brown in contrast to Mr. Blair in fairly graphic terms. And that continued, actually. Even when Gordon, as Prime Minister was, you know, having a really tough time, you know, following the financial crash and what happened to our economy as a result of the financial crash, and the Mail and the Mail on Sunday would be laying into the Labour government left, right and centre, there was always an element, an element, of laying off Mr. Brown and so I think that friendship continued. Q: Did that friendship, in your view, have any influence on Mr. Browns political and policy thinking, particularly in the context of Europe? A: I think Mr. Dacres influence in their friendship would have accentuated his cooling on Europe and the single currency, but that was by no means the only influence. A far greater influence would have been his economic adviser and minister throughout the period, Ed Balls... Q: Do you think Mr. Brown had an eye on the Daily Mail, Mr. Dacres view, in terms of policies for which he was responsible? A: As Prime Minister, he was responsible, in a sense, for all policies. Im not sure. In mean, the only thing I can vaguely remember was something to do with data protection. There was an issue to do with data protection. 4.17 Mr Brown was asked a number of questions about alleged anonymous briefings to journalists which it was put to him were in fact given by Charles Whelan and Damian McBride, who worked for him as his special advisors, the former until 1999 and the latter until April 2009. Mr Brown denied that they gave any such briefings, or that if they did so it was without his knowledge or sanction.114 Many political commentators have expressed surprise at this evidence. The current Leader of the Opposition has said that the reason Mr Whelan left his position was because of the style of his operation, and that he had raised a specific concern with Mr Brown about some of Mr McBrides activities.115
4.18
5. Political news management

Background
The truth becomes almost impossible to communicate because total frankness relayed in the shorthand of the mass media becomes simply a weapon in the hands of opponents.116
pp85-88, passim, Gordon Brown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-11-June-2012.pdf 115 p31, lines 1-11, Ed Miliband, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-12-June-2012.pdf 116 The Rt Hon Tony Blair cited in Oborne, P, The Rise of Political Lying, (2005), p1
114
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5.1
A thread running through a quantity of the evidence to the Inquiry about the relationship between politicians and the press was the issue of the extent to which politicians attempted to affect (or, put less neutrally, to manipulate) press coverage in their favour, not this time at the level of personal interactions or potential interchanges of influence, but simply by seeking to control what information is released about their thoughts and plans, when, how and to whom. This is an issue of interest to the Inquiry, first because it offers the prospect of insight into the dynamics of the relationship and, in particular, where power lies. To the extent that a politician can control the news agenda he or she is in a position of relative dominance in the relationship. It is also of wider interest from the viewpoint of the general public interest because it has a potential to affect the clarity with which the public can understand what is going on and the ability of political journalists to do their job of promoting free debate and holding power to account. It has a potential to have results which are partial, misleading, distorted or placed out of context. On the other hand, it also has the opposite potential, namely to counteract whatever tendencies might exist in the press to drive the political agenda, if not public opinion, in any particular direction. It is an issue which is accordingly very hard to deal with objectively. It largely comes down to a matter of standpoint. It is therefore dealt with relatively briefly in this Report. I have nevertheless concluded that there are some interesting patterns which can be picked out, and perhaps one or two lessons which can be drawn. The issue probably owes its contemporary prominence to the critique of spin associated with the news management techniques of Lord Mandelson and Mr Campbell.117 Both, when invited by the Inquiry to do so, painted a picture instead of a need to counteract unfair press hostility. Mr Campbells role was certainly one that trod new ground in the history of relations between politicians in Government and the press. Some commentators described it as a wholly different approach to the imparting and presentation of information from Government. Others take a longer view. The Rt Hon Michael Gove MP was able to remind the Inquiry of historical parallels with the Roman Republic.118 Lord Mandelson suggested that the first spin doctor was appointed by Clement Atlee, and that Baroness Thatchers press spokesman when she was Prime Minister, Sir Bernard Ingham, was as high profile and controversial as Mr Campbell.119 Sir John Major provided the Inquiry with an illuminating perspective on these issues:120 Now, weve had political spin forever. Every politician since the dawn of time will put a gloss on something to ensure that it is presented in the best possible light. Weve all done it. Everyone does that. But I think there is a distinction between a gloss and a deliberate attempt to deceive in the way in which the news is presented, and my concern was that once you move towards the politicisation of the government information services, which is what it was, you did move into a sphere where the
5.2
5.3
5.4
5.5
5.6
p48 lines 7-18, Kenneth Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-30-May-2012.pdf 118 p8, lines 12-14, Michael Gove, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-29-May-2012.pdf 119 p8, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-LordMandelson.pdf 120 pp19-20, lines 12-13, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Morning-Hearing-12-June-2012.pdf
117
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news could be perverted rather than presented accurately and without spin to the media at large. I think you also saw some other things which journalists are better able to talk about than I, but that theyve certainly mentioned to me: people being given stories when other people werent and presenting them with a particular tilt, so that when the story hit the public news, immediately it had a favourable tilt for the government rather than a neutral or perhaps even a deservedly unfavourable tilt. A whole range of things like that, which Im sure this Inquiry has heard about, so I wont tediously run through them all. But in short, I think the straightforward, clear cut certainty of an honest presentation of policy from the information service that was there when you had civil servants presenting it on behalf of the government was lost when you moved to a political information service.
The New Labour perspective

5.7 As indicated above, on 27 July 1994, Mr Blair appointed Mr Campbell to be his press spokesman and jointly responsible with Lord Mandelson for election strategy.121 It was put to Mr Campbell that Mr Blairs memoirs had referred in terms to the value of appointing a tabloid editor,122 an assessment which he only partly accepted:123 No, what he said to me when [he] finally approached me was that he wanted somebody that was strategic, that understood the press and that would be able to do the job that he wanted done. So I dont recall it being particularly he wanted somebody who was from the tabloids, but he wanted somebody that kind of knew that world. 5.8 Mr Blairs own perspective was as follows:124 I cannot believe we are the first and only government that has ever wanted to put the best possible gloss on what youre doing. I would be surprised if governments hadnt done that throughout the ages. That is a completely different thing from saying that you go out to say that things that are deliberately untrue or you bully or harass journalists and so on. I read a lot of things we are supposed to have done. I actually dispute we did those things, very, very strongly. My view is this: I totally understand why theres a kind of symmetry in being able to say, Oh, well, the government was spinning and so the media had to react to that. In my view but you can take a different one thats not what happened. I mean, the truth is, in 1992 Alastair Campbell wasnt heard of. If you look at the way that election was covered and by the time I took over the leadership of the Labour Party, wed lost four elections in a row. Wed actually never won two consecutive full elections in our history. The longest wed ever been in power was six years at one go. So I went through that election. I remember it. It was etched on my memory and yes, I was absolutely determined that we should not be subject to the same onslaught.
Campbell, A, Diaries Volume One: Prelude to Power 1994-1997, p45. Blair, T, The Journey, p75 123 p2, lines 3-9, Alastair Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-14-May-2012.pdf 124 pp8-9, lines 7-6, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-28-May-2012.pdf
122
121
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5.9
Lord Mandelson was asked directly about his news management strategy and the label of spin. His explanation was as follows:125 I think spin is a derogatory term. I mean, what we determined to do, really from the time that Tony Blair became leader of the Labour Party in 1994, was to speak as far as possible with a consistent voice, and to perhaps to go back to your earlier question, to try to ensure that the media understood what it was that we were trying to achieve. So yes, I mean, there was more discipline about what we said, how we said it, who we said it to, than there certainly had been through the many years of Labour in opposition. Q: Did it lead to a breakdown of trust between the public on the one hand and the politicians on the other? A: I dont think it was I dont think it was that that led to a breakdown of trust in the public. I do think that we were always too reliant on the support of newspapers, and I think that in the context of everything Ive said earlier ... our expectations were too high of the degree to which the governments story could be conveyed through the newspapers.
5.10
Mr Campbells personal, retrospective evaluation was that the critique of spin was itself a symptom of the problem which he thought he faced, and that suggestions that the quality of public discourse was corroded were rarely supported by evidence:126 I can remember, for example, one briefing where, at the end of yet another frenzy and journalists accusing me of lying and the politicians then getting roped in saying I should resign I can remember saying to all the journalists there in the room: Right, come on, just say what the lie is and then provide any evidence whatsoever. And they never could! So just that in itself is a form of spin. You sent me Peter Obornes essay that he did for the British Journalism Review. Most lobby journalists [he said] have been deliberately misled or lied to by Downing Street. Followed by zero evidence whatsoever. New Labours culture of deception or manipulation of statistics, secretive smear campaigns.... No evidence whatsoever.
5.11
Mr Campbell was also asked about Lord Mandelsons views:127 Q: Lord Mandelson, one of his concluding observations ... There was a great emphasis on managing the media at the expense of managing policy. There was a sense that if youd got the story right, youd achieved something and thats not how government is. Do you think theres any validity in that comment? A: No. I think the policy process was always taken more seriously, but I think we all spent far too much time focussed on and I speak as the guy who was in charge if this. The politicians spent way too much time worrying about this stuff.
pp76-77, lines 2-4, Lord Mandelson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-21-May-2012.pdf 126 pp79-80, line 15-7, Alastair Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcriptof-Afternoon-Hearing-14-May-2012.pdf 127 pp81-82, lines 25-14, Alastair Campbell, ibid
125
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5.12
Interestingly, there are perhaps echoes of this in Mr Camerons public statements in April 2012 about wider failings in politics: the concentration on presentation over the content of the message itself.128 Mr Blairs evidence was along similar lines. He accepted that there were problems in the carrying over of the techniques of Opposition into Government. He also accepted that Mr Campbell was somewhat of a combative figure. Asked about whether there had in fact been bullying or intimidating of journalists, or alternatively the favouring of certain journalists, Mr Blair stated:129 If you take someone like Andrew Marr, who is a very good journalist, I would be astonished if he felt that hed been bullied or intimidated. If he did feel that, then Im sorry about it, and I certainly wouldnt have known about it. .... But I suspect he is feeding back this thing that has grown up. You know and also, some of these issues are different. For example, there will always be an interaction with the newspapers. If youre going to launch a major campaign, and lets say theres a particular newspaper thats been interested in this type of campaign lets say you were going to do a big thing on anti-social behaviour. It would make sense to talk to the Mirror, the Sun, maybe, about that. We probably, in the later part, would have hesitated before talking to some of the papers that were utterly hostile for fear of the fact that you would simply have the story distorted in some way, so maybe that gives rise to that. Briefing against people I just want to make this clear: I couldnt abide that. If I ever thought anyone was doing it, I would be absolutely down on them like a ton of bricks. I remember, for example, stories I remember there were a lot of prominent stories at a certain point in time in relation to the late Mo Mowlam, and how I was very angry because she got a standing ovation at a party conference and we were briefing against her ... It was completely untrue. ... Q: I think the thesis being advanced is that the masters of the dark arts, whether they be Lord Mandelson or Alastair Campbell, tended to pick on junior reporters or producers... and let off people like Mr. Marr himself. A: No, thats my point, really, that in the end they receive this as sort of second-hand look, I have no doubt that we used to complain strongly if we thought that stories were wrong. You know, I think thats perfectly legitimate. But I always felt and Im probably not the right person to be objective about this at all but I always felt that their actual pushback against us was because for the first time, the Labour Party ran a really effective media operation, where we were able and also, by the way, we were in circumstances where, for the first time politically, the Labour Party was able to go on and win successive elections. As I said earlier, wed never won two successive first terms, never mind three, and I felt you had to have a strong media operation, but I completely dispute that it was part of that to go and brief against ministers.
5.13
5.14
Towards the end of his evidence was this interesting series of answers from Mr Blair:130
Andrew Marr show, 29 April 2012, http://www.guardian.co.uk/politics/2012/apr/29/david-cameron-commonsjeremy-hunt 129 pp18-21, lines 22-16, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-28-May-2012.pdf 130 pp23-25, lines 3-10, Tony Blair, ibid
128
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Q. If, as I think you are not, you are not accepting even a kernel of truth in a thesis which may be exaggerated, how is it that this mythology has built up around you that people like Lord Mandelson, Mr Campbell, at your instigation, were the masters of these so-called dark arts? A. Its got to the point where I almost hesitate to dispute it with you, because I know these people just say, Oh, how dare he dispute the fact that actually they were out using black arts and briefing against this person and that person? The fact is, you know, I never authorised or said to someone: Go out and brief against I hate that type of stuff. Its the lowest form of politics. Its just a complete diversion from everything that is important. Now, I dont doubt, by the way look, in any system you will have people that will say things or do things or brief things that they shouldnt be doing, but I simply say to you my view is that the what I think a part of the media felt and this is the odd thing, and I used to comment on this sometimes is that to the outside world, when youre Prime Minister, you seem as if youre all powerful, and for that first period of our time in government, it looked as if we were carrying in everything. You know, the opposition were very poor, we didnt just win one landslide, we then went on to win two, and I think part of the media frankly felt we were far too powerful, we had to be taken on and curbed and so on. But, you know, in relation to this stuff with black arts, look, I dont I dont know whether Peter was doing it or Alastair was doing it, but if they all I know is that my interactions with them, we were aware that you start doing all that stuff, all it does is blow back on you. Im a real believer in this regard that what goes around comes around. So for me, the important thing was to have a strong effective media operation. I think that what Alastair produced for us in Downing Street was that, but I think it was a perfectly proper media operation. Q. Im really coming back to the point about the draining of the poison, and perhaps who is responsible for the implantation of the poison. If one focuses too much on the press, it might be said that one is arguably missing the wrong target. How about this as a possibility: we might have now a poisonous state of affairs which is a contribution really of both sides to this equation the press on the one hand, the political classes on the other and accidentally or unwittingly, theyve created something which has grown beyond either of their contributions. Is that a possible analysis? A. Look, its certainly a possible analysis, and Im not saying we dont bear any responsibility for this situation dont misunderstand me as a political class, but I think if Im frank about it, the primary responsibility is not having confronted it and dealt with it.
5.15
Mr Brown offered this perspective on his personal approach:131 I did want to make a change, and I did try to move away from what I thought was the excessive dominance of what is called the lobby system, and what really has led to those allegations of spin by the way, spin assumes that you got success in getting your message across, even if its superficial and I dont think anybody could accuse me of having a great success in getting my message across. But I tried to move away from that. One, we moved away from having a political chief of communications to having a civil servant doing the job. That was to send the message that we were not trying to
131
pp21-22, lines 23-12, Gordon Brown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Morning-Hearing-11-June-2012.pdf
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politicise government information; we were trying to give the information that was necessary for the public to understand what was happening. 5.16 Mr Brown did suggest that there had been risks to the public interest in New Labours approach to news management. Asked if there were any lessons to be learnt from the period 1997 to 2010, he indicated:132 Yes. We should have ... changed the system where people relied on exclusive briefings and had a far more transparent system of addressing the country through the press than we have even today, and I obviously have to take some responsibility for this ... So yes, there needed to be more openness. We inherited a system which was based on, if you like, exclusivity. It was also based on insiders winning over outsiders, so a lot of people were excluded from that system. 5.17 From one standpoint, then, the priority of the politicians learning the lessons administered to them by the press in the wilderness years of the 1980s and early 1990s was both to persuade the press that they had nothing to fear from a change of Government and to reach the public in a less adversely mediated way. From another standpoint, this was at the expense of a breakdown of public trust engineered by political self-interest. For politicians trying to manage the agenda, it was about getting a fair hearing; for journalists resisting the management of the agenda, it was about manipulation and favouritism. Neither standpoint is neutral or objective. In the relationship between press and politician, in circumstances where political positions are not aligned there is a contest of wits (or megaphones) in which each viewpoint seeks to outmanoeuvre the other in a contest to dominate the public debate. Sometimes that can benefit and enrich the public debate and a balanced perspective can emerge. Sometimes it can have the opposite effect: the public is so overwhelmed by the messages delivered by competing megaphones, it does not have the chance to sort the wheat from the chaff or to discern the true kernel of the issue. If New Labour did not invent spin, it nevertheless found itself in an unprecedented place in relation to news management as an agenda item in its own right. On the one hand, its election-winning strategy in 1997 explicitly had in mind the lessons to be learned from the recent past. On the other, there is an obvious question about the extent to which a media strategy of neutralising those sections of the press which had been hostile to the party in the 1980s and in the run-up to the 1992 general election became a victim of its own success, and resulted in diminishing public confidence in political communications.
5.18
The perspective of journalists and commentators

5.19 Andrew Marr offered this overview in his book My Trade, from his long perspective of political journalism in the print media and more recently working for the BBC:133 ... As trust crumbled, so did reporters willingness to defer to the government. Tales of how New Labour had bullied junior reporters or producers spread through the warren of press gallery offices and between broadcasters headquarters. The backlash was slow, but it came. By the end of Blairs first two years, it was a badge of honour to be bollocked by Campbell or Mandelson, and to shout back just as loudly. The persistent attempts to dictate what should appear on a front page, or at the top of a running order, became infuriating and hardened journalistic hearts.
132 133
p97, lines 2-24, Gordon Brown, ibid Marr, A, My Trade: A Short History of British Journalism, pp 160-161
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Even before the 1997 election it was obvious that Labour had spies tipping it off about running orders, script lines and correspondents being used for news programmes and was attempting to ambush them before they went on air to get more favourable coverage. In lobby meetings, Alastair Campbell and others would single out and ridicule the correspondents of editorially hostile newspapers ... Favoured reporters were given special treatment, just as their editors were made much of in Downing Street and invited to weekends at Chequers. But political correspondents have a certain esprit de corps alongside their professional rivalry, and the cynical way in which some were favoured because they worked for Rupert Murdoch, while others were sneered at because they worked for Conrad Black, disgusted many who worked for neither. 5.20 In oral evidence to the Inquiry, Mr Marr was asked to expand on this final paragraph. He said this:134 I think that a decision was taken that it was very important to keep the Murdoch papers, so far as was possible it wasnt always possible on side and to have a close relationship with their leading journalists and their leading reporters. They were inside of the tent, if you like, as were some Labour friendly newspapers too, while papers like the Daily Telegraph were indeed kept at arms length, made to feel unwelcome. From time to time their correspondents like George Owens [sic] would be mocked during lobby briefings. There was very much an attempt, I felt, to divide this core this group of journalists into the favoured ones, the ones who were sort of part of the project, almost, and the ones who were off in the wilderness. 5.21 Peter Oborne, chief political commentator at the Daily Telegraph, also commented on this issue from his own perspective. He observed as follows:135 Q: Im going to read the opening quotation of chapter 7 of your book ... The Quotation is from Robert Shrimsley, who is the news editor of the Financial Times, and it reads: When I joined the lobby in 1992, I would abandon a story if Number 10 denied it. By the time I left, I sometimes felt justified in merely recording the denial at the bottom. A: Yes. Q: How accurate a summary is that of the change in government communications during that period? A: I completely agree with Mr. Shrimpley136 ... I felt that what was true I think what we had when New Labour emerged in power in 1997 was really a what Id call a new epistemology, which was that truth was really seen as something which served the purposes of government or the party in power. It wasnt the rigorously testable, empirical truth was of no interest of a kind which would be of interest to this Inquiry was not of interest to New Labour spokesmen. They were interested in the truth as it served their political purposes, and so that was a different definition of truth. That, I think, is what Mr. Shrimpley137 is referring to there that denials or assertions became really an instrument of government rather than an instrument of telling the truth.
pp64-65, lines 23-12, Andrew Marr, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-23-May-2012.pdf 135 pp6-7, lines 17-19, Peter Oborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-17-May-2012.pdf 136 this is an error in the transcript; this should read Mr Shrimsley 137 as above
134
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5.22
Simon Walters is the political editor of the Mail on Sunday, a position which he has held since 1999. He has been a journalist since 1974 and a member of the lobby since 1983. In his written evidence, Mr Walters noted that: 138 During Mr. Blairs government, much energy was devoted to ensuring all departments were on message repeating the Downing Street line on any given issue. From the point of view of the Government, this greater degree of political control makes sense. But it can be argued that this is not in the public interest or that of the media. For example, if Number 10 is trying to cover up a politically embarrassing story, it is easier to do so if there is central control over the entire Whitehall media machine.
Reflections
5.23 This Chapter has focused on aspects of news management during the 13 years of the New Labour: insofar as it has become relevant to the Conservative Party and the Coalition, this will be analysed in the course of Chapter 4. But precisely because more than one view is possible about the advantages and risks of news management techniques, particular care must be exercised to ensure that the message an encapsulation of the facts and policies which politicians of whichever party wish to share with the public is not lost in distractions about the packaging. Once again, the substantive issues which remain are to do with public perception. If the public do not have confidence in the politicians to provide a straight message even, where necessary, warts and all and the public do not have confidence in the press to provide a fair (although not necessarily balanced or impartial) account, everybody in our democracy loses. Holding power to account can be partisan, but if the public detect that it is not fair, one way or the other, the consequent loss of faith will damage both politicians and the press. Furthermore, if favoured relationships and the transaction of exclusives play a prominent role in the presentation of issues or, on the other side, simple error is always portrayed as venal, corrupt or wanting in integrity, public trust will be lost and the currency of public debate devalued.
5.24
p4, paras 21-22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-SimonWalters.pdf
138
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Chapter 4 the Conservative revival and the Coalition1 1. Introduction and background
1.1 In common with a number of politicians of his generation, the Rt Hon David Cameron MP has spent most of his adult life in politics. He began his political career working for the Conservative Party Research Department, before becoming a general political SpAd, first to Norman Lamont at the Treasury (1992-1993) and then later to Michael Howard at the Home Office (1993-1994).2 During this period he witnessed first-hand the national press treatment of both Lord Kinnock and Sir John Major. He also forged numerous professional relationships with political journalists:3 probably in terms of political journalists I got to know, I would have said that was more related to the time when I was a special adviser, because I was dealing with political journalists then and some of them are still around today. In some cases, these became personal friendships.4 The working life of Mr Cameron which was beyond politics was spent in the media. Between 1994 and 2001 he worked for Carlton Communications Plc (Carlton). There, his role involved public affairs, Government relations, investor relations and communicating with the financial press.5 By his own account this was a period formative of his views on media policy and, in particular, about television:6 I would say my time at Carlton probably taught me more about the television industry, about how it was regulated, and maybe well come on to this, a lot of the views I formed about media, media policy, media regulation, the BBC Carlton was quite a formative period because I was working for a big part of the British broadcasting industry, ITV effectively, and I formed a lot of views and opinions there which I still hold today. 1.3 Mr Cameron retained his interest in politics whilst at Carlton and was elected to Parliament as the member for Witney on 7 June 2001.7 This was the period of New Labours potent new media strategy. His close political ally and near contemporary, George Osborne, put it this way: we came of political age myself, David Cameron and others during that political
1.2
On the basis that current relationships between the press and the Prime Minister have been the subject of considerable recent interest and have each been ventilated at length during the course of the Inquiry this section is considerably longer than those covering other periods of time and administrations where the issues are less immediate 2 p5, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-David-CameronMP.pdf 3 p4, lines 6-12, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 4 See paragraphs 3.18-19 and 3.38 below 5 p21, para 60, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 6 pp4-5, lines 16-2, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 7 p5, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-David-CameronMP.pdf
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Chapter 4 | The Conservative Revival and the Coalition
period .8 As a backbencher, Mr Cameron wrote a column for the Guardian Online.9 His perspective has therefore been informed by more than twenty years of political activity and wide contact with national newspaper journalists, covering most of the period considered by the Inquiry in Module Three. 1.4 This subsection of the Report concentrates upon the relationship between Mr Cameron with national newspapers during the periods in which he was Leader of the Opposition and then Prime Minister. It considers how his media strategy developed in Opposition, including the recruitment of Mr Coulson, and the gradual winning of widespread support in the national newspapers, most notably The Suns dramatic abandonment of Gordon Brown in September 2009. Was the switch in allegiance the product of a deal or did it have other origins? The diminution in Mr Camerons contacts with the media which followed the general election of 2010 is explored, as are Mr Camerons own contacts with the national newspapers, especially their proprietors and senior executives. The emergence of the phone hacking scandal is traced, both as it affected Mr Coulsons position as Director of Communications, and in the way that it led to the setting up of this Inquiry. Finally, Mr Camerons well known view that politicians have become too close to the media is assessed.
2. Mr Camerons relations with the press whilst Leader of the Opposition

2.1 Mr Cameron was elected Leader of the Conservative Party on 6 December 2005 and thereby became the Leader of the Opposition.10 He explained the inherent disadvantage which Opposition parties face in getting their message across to a media which usually accords more priority to covering the Government of the country than it does to reporting the prospective policies of the Opposition. Consequently, he saw a particular need for Opposition politicians carefully to develop their relations with the media:11 All politicians are keen to have the opportunity to explain the policies they advocate but the media generally considers comments made by Ministers as more newsworthy. In Opposition, political parties operate on a much smaller scale and sometimes struggle to gain media coverage. It is much more difficult to make the public aware of the relevance and impact of Opposition policies. For obvious reasons, attention and focus is directed on the party or parties in power. Senior politicians in Opposition therefore tend to have to focus even more on developing their relations with the media in order to get their message across. As I said in the Commons on 13 July 2011: As Leader of the Opposition, you spend quite a lot of time trying to persuade newspapers and others to support you, because you want to explain your policies, your vision and what you are doing for the country. 2.2 The practical product of this analysis was a considerable effort on his part to engage with the media whilst in Opposition. In terms of scale, the effort was reflected in the sheer number of meetings and interviews with the media which Mr Cameron had in Opposition: 1,404 in the four year, five month period from December 2005 to May 2010: an average of 26
p22, lines 13-18, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-11-June-2012.pdf 9 p30, para 94, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 10 p4, para 9, ibid 11 pp12-13, para 33, ibid
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meetings or interviews per month.12 These meetings and interviews encompassed a very wide range of media contacts in both broadcast and print media, which resulted from a strategy of building ...a relationship with all the relevant media, including political editors, editors and proprietors.13 The volume and breadth of these contacts did not prevent a careful and deliberate focus on ...those with the biggest audiences and those best placed to get my message across...14 which was no doubt intended to maximise the return on the investment of time and effort. In practice, for Mr Cameron that meant the BBC and ...in terms of newspapers, my focus has been on those who either already held and supported Conservative views, or could be persuaded to do so.15 2.3 There was some evidence that Mr Camerons approach to the media in the period between December 2005 and 2007 differed significantly from the period that followed. It was said that Mr Cameron sought to establish a relationship with more distance and less deference to the media, with reference to Rupert Murdoch in particular. Recalling and interpreting the period, Andrew Neil wrote in his evidence that:16 It is one of the ironies of the current state of relations between press and politicians that Mr Cameron did not set out to replicate a Blair/Brown style relationship with the Murdoch press. He told me not long after becoming Tory leader in 2005 that he would not go cap-in-hand seeking Mr Murdochs blessing, denigrating Mr Blairs decision to fly to the other side of the world in 1995 to parade before Mr Murdoch and his lieutenants. Rather he would transform the Tory party as he saw fit and, if Mr Murdoch liked what he saw, would happily accept his endorsement. But he would not seek to ingratiate himself with the media tycoon or recreate the extensive and close nexus that existed between the Murdoch Empire and New Labour. This strategy lasted until the summer of 2007, by which time Mr Brown was the new Prime Minister and enjoying an (albeit brief) honeymoon with the British people so advantageous that there was a widespread expectation that he would go to the country in the autumn and win. Mr Cameron, for his part, found himself friendless: the left-leaning press were rallying to Mr Brown while right-leaning newspapers were becoming increasingly critical of the Tory leader and his modernising agenda. It was in this predicament with a fourth defeat for the Tories staring them in the face that Mr Cameron reached out for Mr Murdoch and his newspapers, with consequences that are now being revealed and documented. 2.4 George Eustice MP served as David Camerons Press Secretary for almost two and half years between May 2005 and October 2007. Not inconsistently with parts of Mr Neils evidence, he has said of his work for Mr Cameron:17 When I was his press secretary, we pursued a strategy of quietly puncturing the arrogance of both editors and proprietors and raising the status of what I term real journalism.
p50, lines 8-24, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 13 p24, para 71, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 14 p24, para 71, ibid 15 p24, para 71, ibid 16 pp24-25, para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-statement-of-AndrewNeil.pdf 17 p47, lines 7-13, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf
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2.5
Mr Cameron recognised that early on he had not enjoyed much personal support from the press:18 ...Id won the leadership of the Conservative Party without the support of I think any newspapers frankly. I had a pretty rocky time with them during the leadership election, and I think Id won the leadership basically through what Id said at Conservative Party Conference and it was television that had helped me to get my message across.
2.6
He also acknowledged that initially there were different views about how best the Conservative Party could get its message across. For his part, he placed emphasis on television, which he believed had been so instrumental in his successful bid for the leadership of the Conservative Party:19 I wanted us to have a good relationship with newspapers. I knew we needed to win over more support, but to start with there were certainly some in my office who were very keen on trying to do things completely differently and communicate much more through the Internet and what have you. I would say I was more cautious about that, thinking we wanted to work very hard on television, we should do what we could with the newspapers, but I think thats the way it was...
2.7
It is worth pausing to note the early emphasis on television which has been retained throughout Mr Camerons leadership of the Conservative Party. The importance accorded to television reflects the enormous reach which television has to mass audiences and its power to communicate political messages notwithstanding the duty of impartiality to which broadcasters are subject. It is one of a number of indicators that, whilst the support of national newspapers remains very important to modern politicians, that importance has to be seen in perspective relative to television and increasingly also to the internet. Mr Cameron confirmed that he had wanted more distance and a different approach to the media. Significantly though, he recalled them as eliding into one another rather than being tried sequentially. Given the opportunity to respond to Mr Eustices observation, quoted above, he said:20 I think parts of it are right, in that we did want to have this we didnt want to go down the same route as everything Labour had done. We did want to have a bit more distance, but if you look at the record of the sort of meetings I was having and the rest of it, I was still, you know, flying off to meet proprietors and trying to win people over, so I dont think it totally squares up that there was one approach that was tried and failed and then another approach. Theres slightly more elision between the two, my reflection on it.
2.8
2.9
Mr Camerons evidence that he had been trying to win people over (that is to say, build political support) from the time of his appointment is amply borne out by the record of his meetings with the media. The record shows a modest increase in the frequency of meetings from 2007 onwards, but nothing like a step change.21 His entry in the Register of Members Interests dated 27 September 2006 records a helicopter flight from London to Brecqhou, provided by Aidan Barclay. The entry was made the day after he met Sir David and Sir Frederick
18 19
p46, lines 14-20, David Cameron, ibid pp46-47, lines 21-4, David Cameron, ibid 20 p47, lines 14-23, David Cameron, ibid 21 David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-DC-2.pdf
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Barclay, owners of the Telegraph Media Group for a general discussion, thus showing that Mr Cameron was indeed meeting with media proprietors as early as 2006.22
2007: The appointment of Andy Coulson

2.10 Whether or not the strategies employed by Mr Cameron merged or were distinct and sequential, it is clear that by 2007 he was looking significantly to strengthen his media operation. He explained that:23 After my first year or so as Leader of the Party, it became increasingly clear that the Conservative Party needed a heavyweight media operator, someone who had operated at the highest levels and who knew how a newsroom was run... 2.11 The need to recruit a media heavyweight was attributed to the huge pressures upon modern political media operations:24 ...I was looking for someone who was a big hitter, and I was looking for someone who could really cope with the huge media pressure that youre under, and tabloid editors and leading executives on a tabloid newspaper I think do have they bring something that others wouldnt, and so there wasnt a particular wish list, but it was trying to get the right person with the right skills. 2.12 The object was not simply to absorb the pressures but to change and improve the Conservative Partys media operation:25 I had this very good guy, George Eustice, who was doing a good job. If I was going to bring someone in above him, I wanted somebody who really would be able to materially alter and improve the way we did things, particularly in the face of this massive pressure you face. 2.13 Self evidently, the appointee would need to be sympathetic to Conservative views as well as have very considerable experience in the media and particularly of operating successfully in an intensely pressured media environment. In practice there was a very small pool of potential recruits. Yet Mr Coulson was not the only person considered for the post. Mr Cameron recalled seeing at least four people personally about the position:26 How many people did I see? Obviously Guto Harri, whos outed himself or been outed, I did have conversations with him. There was someone senior from a broadsheet newspaper. There was someone else very senior in the BBC. There was this tabloid journalist... 2.14 It was Mr Osborne who proposed that Mr Coulson should be approached. At first glance, it might be thought surprising that Mr Osborne should have made this particular suggestion. As the editor of the News of the World (NoTW), Mr Coulson had been responsible for a damaging front page headline about Mr Osborne: TOP TORY, COKE AND THE HOOKER.27
David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-DC-3.pdf p74, para 221, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 24 p97, lines 8-15, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 25 p98, lines 6-11, David Cameron, ibid 26 p99, lines 19-23, David Cameron, ibid 27 Andy Coulson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/AEC2.pdf
23
22
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Whilst it is true that the story also ran in the Sunday Mirror with a leader far less kind than that contributed to by Mr Coulson, a reflection perhaps of the differing political perspectives of the two titles, it is certainly impossible to regard the NoTWs headline as helpful to Mr Osborne.28 As the author of the headline HUG A HOODIE, Mr Coulson had not helped Mr Camerons popular profile either.29 The Prime Minister described it as ...the most effective and destructive headline about me that anyones managed...30 2.15 The most that could be said about the stance of the NoTW on Mr Camerons bid for the leadership of the Conservative Party was that it had not been against him. More generally, although the paper had engaged William Hague as a columnist between December 2003 and 2005, when he returned to the Shadow Cabinet, the NoTW under Mr Coulson had supported New Labour, backing Mr Blair at the 2005 general election.31 The importance of Mr Coulson to the Labour Party is well illustrated by the fact that when Mr Coulson resigned from his position as editor of the NoTW in 2007 both Mr Blair and Gordon Brown contacted him to commiserate with him on the turn of events.32 That Mr Coulson had resigned in response to the conviction and imprisonment of one of his journalists added yet another reason to question why it was that Mr Coulsons name came to Mr Osbornes mind. Mr Osbornes explanation for suggesting Mr Coulson to Mr Cameron was that he sensed that Mr Coulson was in fact instinctively sympathetic to Conservative views:33 ...I had met Mr Coulson on a handful of previous occasions when he was editor of the News of the Word, although we had not met privately before. Under his editorship the newspaper had supported the Labour Party in the previous general election. However, in my conversations with him, I had sensed that his personal view of political issues was more closely aligned with the Conservatives although I had never asked him as editor whether he was someone who had voted Conservative. 2.18 On this point Mr Osbornes intuition proved to be correct.34 The circumstances in which Mr Coulson had come to resign did not deter Mr Osborne from advocating an approach to Mr Coulson because he assumed that the matter had been fully investigated by the police and, in any event, he could ask Mr Coulson about it:35 I was, of course, aware from media reports that Mr Coulson had resigned as editor of the News of the World following the convictions of the papers Royal correspondent Clive Goodman and private investigator Glenn Mulcaire for phone hacking. I assumed that since the matter had been subject to a police investigation and a criminal trial
28
2.16
2.17
p9, para 38, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Andy-Coulson. pdf; see also pp20-25, lines 17-15, Andy Coulson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/ Transcript-of-Afternoon-Hearing-10-May-2012.pdf for Mr Coulsons explanation 29 p110, lines 17-21, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 30 p110, lines 17-21, David Cameron, ibid 31 pp9-10, para 39, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-AndyCoulson.pdf 32 p5, para 7.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-GeorgeOsborne-MP.pdf 33 p5, para 7.2, George Osborne, ibid 34 p29, lines 8-18, Andy Coulson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-10-May-2012.pdf 35 p5, para 7.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-GeorgeOsborne-MP.pdf
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that all the relevant facts had come to light. I also intended to ask Mr Coulson himself about the issue and later did (as set out below). (emphasis added) 2.19 He thought that as a recently resigned editor of the NoTW, Mr Coulson would be a very strong candidate for the task which was envisaged, explaining:36 ... First of all, he had been the editor of a major national newspaper, so he had an enormous amount of professional experience, and what we needed was someone who was going to be able to handle the communications of a large organisation, the Conservative Party, and develop a media strategy, but also be able to handle, on an hour by hour basis, the problems that were thrown at us ... I thought that Andy Coulson had that experience, as someone who had run a large newsroom, was used to the pressure of dealing with fast-changing stories. 2.20 Mr Osborne denied that Mr Coulsons associations with or contacts with News International were relevant factors, whilst emphasising that his experience as the editor of a big newspaper and prospects of succeeding in the new role were:37 Q. Are you saying that his associations with or contacts with News International were not relevant factors at all? They were not relevant as far as I was concerned, or certainly, as far as Im aware, David Cameron was concerned. The fact that he had edited a big newspaper was the relevant fact, and as I say, the other candidates we considered were not people who were working for News International. I think if Mr Coulson had, for example, been editing the Mail on Sunday, then we would have also hired him. So I think it wasnt relevant that he was a News International ex-employee. LORD JUSTICE LEVESON: But relevant that he was very experienced in the ways of the press? A. That was the relevance, sir. I mean, I have seen people suggest that the reason we hired him was because of his connections with the Murdochs or Rebekah Brooks or his knowledge of the internal workings of News International. I can tell you that was not a consideration. What we were interested in hiring is someone who was going to do the job going forward ... 2.21 Mr Cameron had a similar, although not identical, view about the relevance of Mr Coulsons News International background. He was at pains to say that there was no calculation that a former News International editor would facilitate winning over the NoTW:38 Q. Is it your evidence that his News International background was irrelevant to the decision, in other words it was a factor. A. No, it wasnt irrelevant, clearly. As I said, his contacts, his knowledge, his work at a newspaper, all of that mattered. But if what lies behind the question [is] were you after a News International executive because this was going to make it easier to win over the News of the World or whatever, no, that wasnt the calculation. The calculation was: who is going to be good enough, tough enough, to deal with what is a very difficult job?
pp54-55, lines 19-19, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Afternoon-Hearing-11-June-2012.pdf 37 p56, lines 3-23, George Osborne, ibid 38 pp113-114, lines 25-10, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Morning-Hearing-14-June-2012.pdf
36
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2.22
The right person for the job, to Mr Camerons mind, regardless of whether or not he or she had a News International background, was someone who was going to be able to ...handle tough stories and meet fast deadlines, particularly for tabloid newspapers... whilst at the same time engaging ...more systematically with the broadcast media who ...have huge influence in terms of political coverage and discussion.39 Mr Osborne took forward his suggestion by arranging to meet Mr Coulson for a drink at a central London bar, on 15 March 2007, two months after he had resigned from the NoTW. Mr Coulson recalled discussing what the Conservative Party should do to organise its communications in readiness for a general election. He expressed views which are very similar to those held by Mr Cameron, placing an emphasis on television and the need to promote good relations over the whole spectrum of the media:40 I told him that my view of communications was that it needed to be first and foremost professional, that we needed to have good relationships with as many media representatives as possible right across the spectrum, and I also told him in that conversation and again later in a conversation with Mr Cameron that my firm belief was that television would play a crucial part in any General Election campaign. My view was more so than it had done previously. (emphasis added)
2.23
2.24
Mr Coulson felt that it was: ...clear from the off that they were interested in hiring me and did not feel as if he was being interviewed at all.41 He confided in Rebekah Brooks about the Conservative Partys approach.42 Mr Osborne recalled asking Mr Coulson at the meeting whether he would be interested in being considered for the post of the Conservative Partys Director of Communications. In his witness statement he described Mr Coulson saying that he would think about it and calling, some days later, to say that he was indeed interested, an answer which Mr Osborne passed on to Mr Cameron.43 Mr Coulsons recollection was slightly different. He believed that Mr Cameron had called him later the same night: ...to say that Mr Osborne had told him of our conversation and that he would like to meet.44 In his oral evidence, Mr Osbornes account was consistent with Mr Coulsons:45 Q. And then in paragraph 8.1, after Mr Coulson, a few days later, confirmed that he was interested in the job, you had a conversation with Mr Cameron about it; is that correct? A. Yes. I think I spoke to him pretty soon, actually, David Cameron. My recollection is that I probably spoke to him on the way back from the drink Id had with Mr Coulson on the telephone.
2.25
p74, para 222, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 40 p30, lines 16-24, Andy Coulson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-10-May-2012.pdf 41 p32, lines 5-7, Andy Coulson, ibid 42 p8, para 32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Andy-Coulson. pdf 43 p6, para 7.7, 52 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-GeorgeOsborne-MP.pdf 44 p7, para 29, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Andy-Coulson. pdf 45 p62, lines 15-22, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-11-June-2012.pdf
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2.26 2.27
Nothing turns upon which recollection is correct; both men were trying to recall a minor detail some five years ago. Whatever the precise mechanics were, the initial meeting was certainly followed up. A meeting with Mr Cameron was arranged at his office in the Norman Shaw Building, probably later in March 2007. Mr Cameron described this meeting as having been significant: ... the key meeting about deciding whether or not to employ him....46 Having met Mr Coulson and discussed his possible appointment with Mr Osborne and Steve Hilton, Mr Cameron decided in principle that he wanted to appoint Mr Coulson as the Conservative Partys Director of Communications and Planning. He asked the Party Chairman, the Rt Hon Francis Maude MP, and his Chief of Staff, Ed Llewellyn, to meet with Mr Coulson to discuss practical arrangements.47 These discussions occurred, and at some stage in the process Mr Coulson also spoke to Mr Hilton.48 Final acceptance of the job appears to have occurred in May 2007 after that years local elections, during the course of a telephone call between Mr Cameron and Mr Coulson.49 Mr Coulson commenced his employment with the Conservative Party on 9 July 2007.50 An issue on which all the witnesses were agreed is that during the recruitment process Mr Coulson was asked about phone hacking. However, recollections differed as to precisely who asked what and when they did so. Mr Osborne recalled asking at his very first meeting whether there was anything more on phone hacking that he should know about that was not already public. He stated that he received a reply in the negative.51 Mr Cameron could not recall being told about this but had no reason to doubt Mr Osborne.52 Mr Camerons own recollection was that not only did he personally raise the matter with Mr Coulson but also that it was raised when Mr Coulson met with Mr Maude and Mr Llewellyn:53 I believe that three such meetings took place: one with both Francis Maude and Ed Llewellyn. These were about the terms and conditions of the appointment. In the meeting they held together, they also asked him specifically about his involvement in the well-publicised hacking that had taken place while he was editor of the News of the World and which had led to the convictions of Clive Goodman and Glenn Mulcaire. He denied any knowledge of the hacking but said that he took responsibility for what had happened on his watch and had therefore resigned. This was consistent with what he had said at the time of his resignation as Editor (emphasis added).
2.28
2.29
p104, lines 5-7, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 47 p75, para 224, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 48 p7, para 30, Andy Coulson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-ofAndy-Coulson.pdf 49 p8, para 31, bid 50 p8, para 31, ibid 51 p6, para 7.6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-GeorgeOsborne-MP.pdf 52 pp100-101, lines 25-3, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Morning-Hearing-14-June-2012.pdf 53 p75, para 225, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf
46
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2.30
So far as his own investigation of the issue was concerned, in his oral evidence Mr Cameron described raising the issue at the face-to-face meeting which he had with Mr Coulson in March 2007. He said:54 My recollection is that I raised the issue of phone hacking and sought the assurance in the face to face meeting we had in my office. Thats my recollection. I vaguely remember the further telephone call, but thats Ive obviously racked my brains to try and remember exactly the sequencing, but my recollection is that I knew it was very important that I needed to ask him that question, and therefore did so, as it says in my evidence. and, in response to the suggestion that the issue was raised only during the May 2007 conversation, he said:55 Thats not my recollection. My recollection is that the assurances I sought were in the face-to-face meeting, but it may be there was a further specific question I needed to ask in the phone call, I cant remember. What Im absolutely sure about is I remember the conversation with Ed Llewellyn was how important it was to see the assurance, and I remember very clearly seeking that assurance and getting the assurance...
2.31
The suggestion that the issue had been raised only once by Mr Cameron was put to him because that was how his witness statement appeared to read. Having dealt with the March face-to-face meeting without mentioning the issue, and the subsequent meetings with Mr Maude and Mr Llewellyn to discuss practical arrangements, at which they had asked Mr Coulson about phone hacking, the witness statement continued:56 [Francis Maude and Ed Llewellyn] reported these assurances orally to me, but said that since these were serious allegations I should personally satisfy myself as to these assurances by putting these questions directly to Andy Coulson in my own conversations with him, and before formally offering him the job. I then had a further conversation with Andy Coulson in which I also asked him specifically about his involvement in the hacking case. He repeated what I understood he had said to Francis Maude and Ed Llewellyn, that he had no knowledge of the hacking but said that he took responsibility for what had happened on his watch and had therefore resigned as Editor. I also recall asking him at the same time whether there was anything else which I should be aware of which might embarrass the Conservative Party. He said he did not believe that there was.
2.32 2.33
Mr Coulson recalled being asked by Mr Cameron during the course of the telephone conversation in May 2007: He also asked me about the Clive Goodman case.57 The witnesses were trying to recall the precise timing of conversations some five years ago now and it is not surprising that in those circumstances that there were some discrepancies. I make no criticism of them for that. Whether the issue was raised with Mr Coulson once,
pp104-105, lines 18-1, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Morning-Hearing-14-June-2012.pdf 55 p107, line 3, David Cameron, ibid 56 p75, para 227, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 57 p8, para 31, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Andy-Coulson. pdf
54
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twice, three times, or four times (ie 7 March 2007, at the March 2007 face-to-face meeting with Mr Cameron, at the meeting with Messrs Maude and Llewellyn, and during the May telephone conversation) I am entirely satisfied that it was raised; given the significance of the issue, it was most probably raised on each of the four occasions. 2.34 However many times the hacking issue was raised during the recruitment process, what is clear is that the inquiries did not go beyond asking Mr Coulson about the issue and accepting his assurances. Mr Osborne described consciously considering whether the circumstances of Mr Coulsons departure ruled him but concluding that it did not. In doing so, he fairly pointed to the context at the time which must have been reassuring:58 I did consider whether the circumstances surrounding Mr Coulsons departure from the News of the World ruled him out as a Director of Communications. But I made what I believed was the reasonable assumption at the time that the police had uncovered all the relevant evidence. Mr Coulson had also confirmed to me that this was the case. It is worth noting that I was not the only person who accepted this. Before the appointment was confirmed on 31 May 2007, the Press Complaints Commission said: There is no evidence to challenge Mr Mylers assertion that: Goodman had deceived his employer in order to obtain cash to pay Mulcaire; that he had concealed the identity of the source of information on royal stories; and that no one else at the News of the World knew that Messrs. Goodman and Mulcaire were tapping phone messages for stories. 2.35 Mr Cameron similarly pointed to the fact of the police investigation and the subsequent prosecution of Messrs Goodman and Mulcaire. He did not shrink from taking responsibility for the decision but he understandably reminded the Inquiry of the indisputable importance of judging the decision without the benefit of hindsight:59 The responsibility for employing him on the basis of the assurances that he gave is mine. I took the view that because he had given me repeated assurances that he had no knowledge of hacking, he deserved a second chance. If anyone had given me any evidence that Andy Coulson knew about or was in any way involved with phone hacking, I would not have employed him. And as I said in my statement in the Commons on 20 July 2011, with 20:20 hindsight and all that has followed, I would not have offered him the job, and I expect that he would not have taken it. As I said then, you do not make decisions in hindsight; you make them in the present.
2.36
Before Mr Coulson started work at Conservative Party Headquarters not only had the PCC made a reassuring statement about the extent of hacking at the NoTW, so too had the Chairman of News International. James Murdochs evidence was that:60 ...the company told the Select Committee in March 2007 that it believed that Clive Goodman was the only person who knew what was going on, and the Committee noted in its report dated 3 July 2007 the assurances of the Chairman of News
pp6-7, para 8.4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-GeorgeOsborne-MP.pdf 59 p76, para 229, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 60 p24, para 13.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-JamesRupert-Jacob-Murdoch.pdf
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International that Mr Goodman was acting wholly without authorisation and that Mr Coulson had no knowledge of what was going on. 2.37 Dealing with the Terms of Reference of what is described as Part 1 of the Inquiry that I am conducting, particularly in the light of the current prosecution that Mr Coulson faces, it is simply not fair or appropriate to inquire into precisely what Mr Coulson knew or did not know about phone interception at the NoTW. On the other hand, however, it is relevant to consideration of Mr Camerons decision to recruit Mr Coulson to take into account the then prevailing positions of both PCC and News International. Mr Osborne was unequivocal about his reason for recommending Mr Coulson for appointment: I recommended that Mr Cameron appoint Mr Cameron because I thought that he was the best candidate for the job.61 He described having been very impressed by Mr Coulson.62 Mr Cameron was similarly focused on Mr Coulsons skills when appointing him:63 Well, obviously his knowledge of the industry, his contacts, his work as an editor were all important, but the most important thing was: is this person going to be good at doing the job of managing the press and communications for the Conservative Party? I wasnt just after some any old person from News International or from the Daily Mail or from wherever. I wanted somebody really good who was going to be able to stand up to the pressure that were under and would face in the run-up to an election campaign. That was the absolutely key consideration. (emphasis added) 2.39 Both Mr Cameron and Mr Osborne recognised that there was a risk in hiring Mr Coulson, but both were content to accept that risk. Mr Osborne put it in these terms:64 Q. Why did you run that risk? A. Because I thought in the end, the balance was that it was worth hiring someone with real talent and ability and weathering the adverse publicity that appointing someone who had had to resign from the News of the World would bring.... 2.40 Mr Cameron identified not only the potential controversy arising from the circumstances of Mr Coulsons departure from the NoTW but also the fact that he was a tabloid editor. His evidence was as follows:65 Q. When you accepted the assurances, did you assess there to be any risk? A. What I assessed was that this was clearly a controversial appointment for two reasons. One was that bad things had happened at the News of the World while he was editor and he had resigned. So he had left his last job after resigning because of things that had happened. So that was obviously as I said in my evidence, I was giving him a second chance.
2.38
p7, para 8.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-GeorgeOsborne-MP.pdf 62 p63, lines 2-4, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-11-June-2012.pdf 63 p113, lines 8-19, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 64 p63, lines 18-23, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-11-June-2012.pdf 65 pp108-109, lines 23-15, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Morning-Hearing-14-June-2012.pdf
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The second reason it was there was controversy [sic] is this was a tabloid editor and there are some people who would say, you know, Dont have a tabloid editor, to which my answer would be: its a very tough job, dealing with the press for a major political party. You need someone who has the skills, who has the knowledge, who can really help you through what can be an absolute storm, and so I thought it was the right thing to do... 2.41 The confidential nature of the recruitment process prevented the taking up of formal references. Both Mr Cameron and Mr Osborne did, however, speak informally to Mrs Brooks about Mr Coulson. Mr Osborne recalled a brief conversation which took place in the context of the recruitment process:66 Well, I spoke to her after Id seen Mr Coulson and after wed been considering it for a couple of weeks, and I dont recollect the precise day or anything like that, but I remember a conversation where I asked her: Tell me about Andy Coulson. Tell me, is he a good person? Is he a good person to work with? What do you think of him? It was never a question about: Is he going to bring his News International connections? or: Tell me more about the circumstances of Andys resignation. I was just simply asking her opinion of him as professional. 2.42 Mr Cameron was unsure whether his conversation with Mrs Brooks about Mr Coulson had taken place before or after the decision was made, although there would only really have been a point to such a conversation before the decision was taken:67 I wasnt seeking a reference. I mean, when youre employing someone like this whos been an editor of a newspaper, you cant seek sort of formal references. Im sure I would have asked how effective he would be, but this conversation may well have taken place after I had made the decision. I cant recall exactly when the conversation took place. But in the end it was my decision. I was satisfied this was the right thing, to have a former tabloid editor to help us with our media and communications, and it was my decision. 2.43 Although Mrs Brooks was aware of the recruitment process at the time, Rupert Murdoch denied any direct or personal involvement. He described himself as ...just as surprised as anybody else... when he heard the news.68 An obvious question was the extent to which the decision of the Conservative Party to hire Mr Coulson had been influenced by the success in opposition of Alastair Campbell for New Labour. Mr Osborne recognised some influence, but both he and Mr Cameron were keen to stress that Mr Campbell and Mr Coulson were different men. Mr Camerons evidence on this point was:69
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pp65-66, lines 16-1, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Afternoon-Hearing-11-June-2012.pdf 67 p102, lines 15-24, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 68 p4, line 15, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-25-April-2012.pdf; see also p27, para 111, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/04/Witness-Statement-of-Keith-Rupert-Murdoch2.pdf 69 p98, lines 12-21, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf
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Q. To what extent were you looking at the example of Alastair Campbell as being obviously politically in a different place but the sort of man in terms of temperament and robustness who would be of assistance to you? A. Not necessarily. I dont think, you know, Alastair Campbell had he was much more political than Andy Coulson, and I think in all sorts of ways there were occasions when clearly hed overstepped the role of what he should have been doing. 2.45 Mr Osborne put the matter in this way:70 LORD JUSTICE LEVESON: Well, is it more that actually he brought skills which youd seen evidenced by New Labour in Mr Campbell? A. I think it is undoubtedly the case that Tony Blair had seen that hiring someone from the media would bring an added dimension to the communications effort, and the Conservative Party had, in opposition, hired a number of people subsequently who had been journalists, indeed one person who had been an editor of the paper. So that was true, but I dont think that Mr Coulson and Mr Campbell are cut from the same cloth, I would suggest. Alastair Campbell was a political editor. I thought Andy Coulson brought a broader experience, as an editor of a paper, so managing a large newsroom, and as I say, I think subsequently the way he did the job shows that he was very well qualified to do that job. 2.46 Having been appointed as Director of Communications and Planning, Mr Coulsons role was to oversee all of the partys communications departments including press, broadcast and online. He specifically oversaw all of the communications for David Cameron and his Shadow Cabinet and was included in the small group of people with responsibility for the strategic planning and execution of the General Election campaign. He attended Mr Camerons morning and afternoon meetings, along with other key staff, and was a part of the general planning team. His job was to make sure policy was properly communicated and to advise on the likely media impact of policies. The remit was wide enough to encompass speeches, press conferences, interviews, and articles given or written by Mr Cameron. He monitored broadcast coverage and assumed a central role in crisis management, for example responding to the MPs expenses scandal.71 There has been speculation as to whether Mr Coulson had continued to be paid by News International whilst working for the Conservative Party. Disclosure by Mr Coulson of a compromise agreement by which his employment with News Group Newspapers Limited was terminated explained what had happened. Mr Coulson did not resign unilaterally without regard to his contractual entitlements. His employment was terminated on terms which he agreed with his employer and which were set out in the compromise agreement.72 Mr Coulson was paid in lieu of his employers contractual notice period and compensated for the termination of his employment. The sums due to him pursuant to the compromise agreement were paid in two tranches, the second of which was in November 2007, after Mr Coulson had started work for the Conservative Party. He also received a quantity of restricted
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pp57-58, lines 14-4, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Afternoon-Hearing-11-June-2012.pdf 71 pp11-13, paras 50-60, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-AndyCoulson.pdf 72 Andy Coulson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/AEC1.pdf
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News Corp stock units which vested in him in August 2007, again after the commencement of his employment with the Conservative Party.73 2.48 In other words, Mr Coulson did receive both cash and shares from his former employer whilst he was working for the Conservative Party, but these were payments made in respect of the termination of his employment with News International and agreed at the time of his departure from that company. There was no evidence that he was receiving a retainer from News International whilst he worked for the Conservative Party. Having appointed Mr Coulson there were further developments which must have reassured Mr Cameron. In July 2009 Mr Coulson gave the same assurance to the Culture Media and Sport Select Committee that he had given to Mr Cameron: I have never condoned the use of phone hacking and nor do I have any recollection of incidences where phone hacking took place. The Committee concluded that it had seen no evidence that Andy Coulson knew that phone-hacking was taking place. Mr Coulson also denied knowledge of hacking under oath in the trial of Tommy Sheridan which was held in December 2009: Im saying that I had absolutely no knowledge of it. I certainly didnt instruct anyone to do anything at the time or anything else which was untoward.74 As is discussed later in this section, in 2010 there were to be a number of less reassuring developments and, ultimately, Mr Coulson resigned from his post in January 2011.75
2.49
Strategy and tactics

2.50 Mr Cameron described the approach to planning his media effort in the context of his overall strategic planning:76 Well, the strategy mapped out at the beginning of the year are the things you want to achieve, the policies you want to get across, the ideas that you want to champion, and then after that, you think: right, how do we do that? Whats the mixture of newspapers and television and direct campaigns and the rest we want to do? Then following that, youre looking at: where are we going to have impact? 2.51 When it came to assessing the relative importance of newspapers, television and direct campaigns, Mr Osborne shared with both Mr Cameron and Mr Coulson the view that broadcasting was becoming increasingly important. In particular, Mr Osborne challenged the view that newspapers set the agenda and broadcasters follow. He explained how broadcasters now quite often set the news agenda themselves and described their power as enormous:77 Q. Do you feel, as some have said again, that the news agenda tends to be driven by the printed media and the BBC and other broadcasters follow suit, or do you feel its the other way around or a mixture of the two? A. I saw Tony Blairs evidence on this, and I think that might have been the case perhaps when he was Prime Minister. Speaking personally as someone active in front
pp25-27, lines 24-24, Andy Coulson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-10-May-2012.pdf: The subject of the shares is discussed further below 74 p76, para 228, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 75 paras 3.56-3.75 below 76 p38, lines 1-7, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 77 pp8-10, lines 21-2, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-11-June-2012.pdf
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line politics today, I would say the broadcasters are incredibly important. It is not clear that theyre always following a newspaper judgment. I would say the significance of a story is massively elevated if it is right at the top of one of the big news shows and thats often the judge of whether something is really going to have an impact in the political sphere. Now, quite often they will be picking up indeed stories from newspapers, but quite often theyll have their own investigations and quite often those you know, the BBC, for example and Im a supporter of the BBC, so this is not Im not seeking to criticise the entire institution, but they will run a special report, a Panorama report, then put that top of the Today programme and suddenly were all expected to treat that as the most important thing happening in Britain that day. So I wouldnt say its a straightforward process whereby the newspapers run a story and the journalists the broadcast journalists cover it. I think its more complicated than that, and I think the power of the broadcasters is enormous. It is power exercised with responsibility, but nevertheless its significant. 2.52 Mr Coulson described how he vigilantly monitored broadcasters output, especially the BBCs, and took issue with it as he thought necessary, whilst keeping open as many lines of communication with the organisation as he possibly could:78 Another aspect of my job was to monitor broadcast coverage, in particular the BBC, given its audience dominance. My approach was to keep as many lines of communication as possible open with the BBC, and to argue our case. I never took the view that ranting at producers and editors was either proper or productive. But I would monitor the BBCs coverage, including online, and firmly register our view when I thought it was appropriate. 2.53 As for the newspapers, Mr Osborne described a general strategy with achievable objectives:79 I dont think it was a particular strategy for the Sun newspaper. It was a strategy for the newspapers. We wanted the full throttled support of Conservative-leaning papers like the Telegraph and the Mail. We wanted to win over some of those more neutral broadsheets like the Times and the FT. We didnt have much hope of the Mirror and the Guardian, and obviously we wanted to win the support of the Sun. But it was a general media strategy and it mainly consisted of setting out our argument about why the Labour government had forfeited the right to remain in office and why we thought a Conservative government would be better for Britain. 2.54 Mr Cameron, who was essentially agreeing with an observation of Mr Browns, identified a problem with what he described as the newspapers volume knob. It is a feature of modern newspaper coverage of politics with which all current politicians have to deal and which one supposes must give them an added incentive to make as much effort as possible to cultivate good relationships with the press. Mr Cameron put it this way:80 Q. Can I ask you to address Mr Browns point that reporting is hyperbolic, its sensationalised. He said the politicians dont simply make errors of judgment, their
p13, para 57, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Andy-Coulson. pdf 79 p68, lines 2-14, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-11-June-2012.pdf 80 pp35-36, lines 9-4, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf
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motives are always put into question. Do you associate yourself as a matter of generality with that point or not? A. I think there are occasions when that can happen. As Ive said, it links back to this thing about newspapers being under pressure to find something special and different and go for impact, and sometimes that can mean questioning motives. So you do I dont want to make this sound like sort of politicians complaining about of course we should have a vigorous press and they should give us a good going over and they do and thats fine. Sometimes it is frustrating when you feel your motives are endlessly being questioned, and but, you know, theres bound to be a certain amount of that, but I think the way I put it is that the volume knob has sometimes just been turned really high in our press and Im not sure sometimes that does anyone any favours. 2.55 Mr Coulson aimed to meet or talk to most editors, political editors and some columnists on a reasonably regular basis (as he also did with broadcast journalists), considering it to be an important part of his job. He occasionally met with proprietors or senior executives. These meetings were mostly off the record and with an informal agenda. Amongst other things, Mr Coulson sought to use the meetings to clear up inaccuracies or misunderstandings which had been printed or broadcast or simply to promote the Prime Ministers message. Together with Mr Cameron and other senior Conservative politicians he would also occasionally attend meals hosted by newspapers, for example at the party conference when the Telegraph, the Daily Mail and The Times all hosted their own dinners. The conference itself was a period of intense contact with the media. They would also give speeches at events organised by various newspapers.81 Mr Cameron said that he had sometimes directly asked titles for support: But obviously on occasion youd say, Wed love a bit more support from your paper.82 Although Mr Cameron was in any event spending a great deal of time cultivating good relations with the media and seeking to spread his message through them, it is clear that Mr Coulson brought a renewed vigour to this activity with a particular emphasis on ensuring not just formal but also informal face-to-face contact with journalists:83 I attended coffee meetings between David Cameron and other journalists, at various times. In opposition, David and Samantha Cameron would also host occasional dinners at his home for media. These included newspaper and broadcast journalists. I would usually, although not always, attend. I played a central role in organising this diary of activity but David Cameron was not always an entirely willing participant. Given the choice, I think he would have preferred to be doing other work or enjoying a night home with his family. However, he understood, and reluctantly agreed, that it was important to meet with journalists, formally and informally.
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pp16-17, paras 72-77, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-AndyCoulson.pdf 82 pp43-44, lines 20-2, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 83 p16, para 78, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Andy-Coulson. pdf
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Notwithstanding Mr Camerons reluctance on occasion to give up his time to cultivate media contacts, he did not express to Mr Coulson the view that press and politician were becoming too close:84 Q. The Prime Minister said in July 2011 words to the effect that We all got too close to News International. You probably recall that, Mr Coulson, dont you? A. Yes. Q. Is that a view he expressed to you before July 2011, in particular before you left, which I think was in January 2011? A. No, I dont remember him doing so.
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Nor did he express that view to Mrs Brooks:85 Q. Mr Cameron also said publicly: We all got too close to News International. Or words to that effect. Was that a view he ever communicated to you personally? A. No.
2.60
Mr Coulson advanced three reasons to explain why he felt that contact of the nature and extent which he was orchestrating had become essential:86 It was important for three reasons. Firstly, you stood a better chance of getting your message across and of stopping misunderstandings quickly if you had good relationships. In a perfect world as Prime Minister you would issue a statement, give an interview, or stage a press conference and your message would be communicated to the public in fair, even-handed reports. Modern politics doesnt work that way. What we did and said required explanation and at times I needed to fight our corner for fair coverage. Secondly, I took the view that it was important that journalists saw David Cameron in a relaxed and informal mode, as well as at work. Again, modern politics demands this. I felt it was important to show his authentic life away from work, not least as the Labour Party was working hard to convince the public that he spent his private moments lounging around a mansion, in top hat and tails, sipping champagne and nibbling on caviar. This was an important myth to dispel. Thirdly, journalists want to meet politicians. There is no substitute in journalism for face to face contact. It was also important for David Cameron to hear what some of the journalists had to say on behalf of their readers and viewers. I believe I was evenhanded in who had access to him.
2.61
These are revealing insights into what motivated Mr Camerons Director of Communications to seek even closer proximity to the media for a principal who was already highly active and experienced in his dealing with the media. Mr Coulson clearly felt that this extra effort was required to achieve the legitimate media goals which are incorporated into the reasons quoted above: fair and even handed reporting, the rapid resolution of misunderstandings,
p50, lines 18-25, Andy Coulson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-10-May-2012.pdf 85 p8, lines 10-14, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-11-May-2012.pdf 86 p17, para 79, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Andy-Coulson. pdf
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an authentic picture of the politician and receipt of reader and viewer feedback. One might easily add to this list. 2.62 It is self evident that any solution to a problem of over proximity between the press and senior politicians must involve a proper distance or, at least, transparency. But if that is to be achievable in practice, the politicians legitimate media objectives, such as those identified above, must be attainable from that proper distance and with appropriate transparency. Otherwise, the temptation to get too close will be irresistible. I shall return to this issue when concluding this Part of the Report and making recommendations. Mr Coulson drew on his experience in the media to advise about the Conservative Partys communications effort, including matters such as how best to talk to proprietors and editors, as Mr Osborne explained:87 Q. But was Mr Coulson able to give advice as to how best to obtain the Suns support, even if, as you say, it was far less important than many commentators have claimed? A. Well, I think his advice was how to handle our communications effort. Yes, how to talk to proprietors and editors and so on ... 2.64 Mr Camerons strategy of maintaining a very wide range of media contacts met with Mr Coulsons entire approval. He said:88 ... I think the party had very good relationships with the Guardian. I think I probably wouldnt include the Daily Mirror, in truth, or the Sunday Mirror. I didnt put an awful lot of effort into either of those papers, although we met and we talked, actually. But yes, I and more importantly David Cameron took the view that we had to talk to as many people as possible. The Tories had a the party had an electoral mountain to climb, it was of historic proportions. So we wanted to touch as many readerships as we possibly could and get our message across as far and wide as we could. (emphasis added) 2.65 When considering individual titles the Conservative strategy was not limited to those at the top of the organisation but extended to developing contacts and promoting contacts in depth. Mr Coulson explained that the rationale for doing so was to maximise the chance of favourable coverage:89 ... I was keen actually that we had good relationships throughout as much as we could throughout the paper. Same goes for if I can keep adding this for other newspapers. It is not newspapers dont work that way. You know, you cant rely on a call to an editor to guarantee anything, and nor should you. What you were attempting to do was build a series of relationships where when you had something positive to say you would give yourself the best possible chance of getting the best possible coverage, and so it was actually a range of relationships throughout all the newspapers. 2.66 Returning to one of the concerns which he expressed when explaining why informal face-toface contact was important, Mr Coulson identified a growth in the importance of individual
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pp66-67, line 22-2, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-11-June-2012.pdf 88 pp48-49, Andy Coulson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-AfternoonHearing-10-May-2012.pdf 89 p48, lines 9-20, Andy Coulson, ibid
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personality in politics and stressed the need for a great deal of effort to ensure that an authentic view of Mr Cameron in particular was being expressed in the media.90
Relations with Telegraph Media Group

2.67 Mr Cameron met Aidan Barclay, Chairman of TMG, numerous times whilst in Opposition, sometimes in formal surroundings and sometimes informally. Two of the meetings occurred during the contest for the leadership of the Conservative Party, in the form of a meeting at Mr Barclays office and then a short while later, breakfast at the Ritz (which is owned by the Barclay family). There were two more meetings, on 27 April 2006 and 12 June 2007, in the period between the leadership election and Mr Coulsons appointment; both were meals at the Ritz. Thereafter, there was a dinner on 25 February 2008, a meeting at Mr Barclays office on 3 November 2009, before Mr Cameron invited Mr Barclay to his home for dinner on 25 November 2009. The final meeting in opposition was a breakfast at the Ritz on 22 March 2010, a few weeks before the general election.91 A text message the day after the pre election meeting evidences the fact that the election campaign had been discussed and plans laid for there to be a daily call between the Telegraph and the Conservatives during the campaign:92 David good to see you congratulations to you both on the prospect of an addition to the family spoken to tony G and repeated our conversation asked him to be in touch to arrange daily call during campaign as discussed. Regards Aidan 2.69 In his evidence, Mr Barclay explained the background to the text and, in particular that he had suggested that there be a daily call between Mr Cameron and the editor of the Telegraph in order most easily to enable Mr Cameron to get his message across:93 A. Well, as you probably realise, in any large organisation sometimes you have difficulty communicating a message across to the right person, particularly if it gets passed down the line, and so I suggested to the Prime Minister that if he wanted to get the attention of the editor and wanted to get his message across in the most efficient manner, he should make a habit of phoning him on a daily basis and I recommended thats what they should do. Q. Sorry, is it the Prime Minister calling A. Its whichever way around it was, but there should be a daily call Q. Between the editor and the Prime Minister? A. Yes(emphasis added). 2.70 Mr Cameron did not think that a daily personal call between him and Mr Gallagher had been discussed but he agreed that a call between the Conservative Party and Mr Gallagher had been agreed and that its purpose was to facilitate putting across the Conservative message:94
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pp82-83, line 24-9, Andy Coulson, ibid Aidan Barclay, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Appendix-D-to-Witness-Statementof-Aidan-Barclay.pdf 92 p1, Aidan Barclay, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-AB1B.pdf 93 pp84-85, line 13 -1, Aidan Barclay, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-23-April-2012.pdf 94 p71, lines 11-16, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf
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A. I dont think so. I think the daily call was between the Conservative Party and Tony Gallagher. I dont know whether it was necessarily going to be me, but I think this was me wanting to make sure that the Telegraph knew our policies and our plans and all the rest of it. I think thats what it was about. 2.71 The advantages for both Mr Cameron and the Telegraph arising from this example of informal contact with the proprietor of a friendly title are plain to see. By this time Mr Cameron had already secured the clear support of the Telegraph and the discussions on 22 March 2010 concerned only the mechanics of best communicating Mr Camerons message. That the full throttled support of the Telegraph (as Mr Osborne described the Conservative Partys goal) had been won was made unequivocally clear both during and after Mr Cameron and Murdoch MacLennan, the Chief Executive of TMG, had dinner together in February 2010. In his follow up letter dated 9 February 2010, Mr MacLennan wrote:95 As I said when we sat down for dinner, we desperately want there to be a Conservative government and you to be our next Prime Minister. Well do all we can to bring that about and to give you great support in the gruelling months ahead, and as we are no fairweathered friend, well be there with you too when youre in Downing Street. (emphasis added) 2.72 These successes for Mr Cameron were of course not simply the result of dinner with Mr Barclay and Mr MacLennan. The Telegraphs support of the Conservative Party was predictable and there had been numerous meetings between senior Conservatives and editors and senior executives from TMG over the years. But they vividly illustrate the power of face to face meetings to maximise both the personal support of a sympathetic title for an individual political leader and the communication of a political partys message through it.
Relations with News Corporation and News International

2.73 Mr Cameron was understandably keen to win back the support of News Internationals titles from New Labour. As he put it: No politician who wishes to get his message across to the public could afford not to take into account the scope of News Internationals coverage when deciding which people to meet.96 When he assumed the leadership of the Conservative Party he hoped that: ...in time, we would have the support of News Internationals papers. After all, these papers fundamentally share the same views on society and the free market as the Conservative Party.97
I
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Rupert Murdoch Contact with Rupert Murdoch had in fact begun during the leadership contest. Mr Murdoch first recalled meeting Mr Cameron socially at a picnic hosted by his daughter Elisabeth.98 He
pp59-60, line 15-8, Aidan Barclay, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcriptof-Afternoon-Hearing-23-April-2012.pdf; p8, Aiden Barclay, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/04/Exhibit-AB1D.pdf 96 p64, para 190, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 97 p66, para 196, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 98 Elisabeth Murdoch has her own substantial business interests in the form of Shine Limited
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dispelled rumours that his first impression of Mr Cameron was of a lightweight politician.99 Rather, he said that he had been impressed with Mr Cameron as a family man.100 The first contact of a strictly business nature was when the two men met at The Suns offices in Wapping in October 2005 before the leadership election.101 2.75 Thereafter they met face to face, or were at the same events, on at least ten occasions whilst Mr Cameron served as Leader of the Opposition.102 There was some discrepancy between the schedules of contact provided by the witnesses.103 There were many potential reasons for the discrepancies and no indication that those who had compiled the schedules on behalf of their principals had done anything other than their best from old records, diaries etc, which were never intended to record precisely what contact had actually occurred.104 The contact usually took place at meetings over a meal, or at News Corporation functions but there was also some social contact. Both men were present, as were Mr Blair and Mr Brown, at the wedding of Rebekah Wade to Charlie Brooks on 13 June 2009. Six months later, on 19 December 2009, Mrs Brooks arranged a dinner attended by the Camerons, the Osbornes, Mr Brooks, Rupert, James and Kathryn Murdoch. This event took place not long after The Sun had, in September 2009, switched its support from Mr Brown to Mr Cameron, and it is easy to envisage it cementing the newly warmed relationship between News International and Mr Cameron. Describing what passed between them during the course of the working meals which they had together, Mr Cameron emphasised Mr Murdochs global perspective and interests:105 I mean, in most of my lunches or breakfasts with Rupert Murdoch, the conversation has always been predominantly about economic issues, security geopolitical issues, he was very interested in what was happening in Afghanistan, very interested in global markets. I think its of course all businesses have their interests and the rest of it, but in my dealings with Rupert Murdoch, most of the conversation has been about big international political issues. 2.78 Mr Murdoch did not recall the detail of the conversations but his recollection generally of his conversations with Prime Ministers certainly bore out that these were topics which he spoke to senior politicians about and was interested in. His keen interest in geopolitics was very probably raised and, in particular, the conduct of the war in Afghanistan and perception of public opinion on the circumstances in which British troops were fighting was to play a role in
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p1, lines 8-16, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-25-April-2012.pdf 100 p1, lines 15-16, ibid 101 p65, para 193, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 102 p54, lines 8-12, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 103 Compare David Cameron: http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-DC-2.pdf and Rupert Murdochs schedule of contact with Opposition leaders: http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/04/Exhibit-KRM-29.pdf 104 pp54-55, line 13-3, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 105 p68, lines 6-15, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf
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The Suns transfer of support away from Mr Brown to Mr Cameron.106 His strength of feeling on this issue was well illustrated by the following evidence which he gave about his views on Mr Browns handling of equipment issues:107 And Afghanistan I felt very strongly about. First, I thought it was right this was, I think, beyond us going in there. I felt very strongly, particularly when I came here and saw the photographs of the great young British soldiers whod either been wounded or killed there, I felt very strongly when the charge was made that they werent being properly protected, and I was dissatisfied with Mr Camerons [sic] answer that they were better protected than any other Europeans. Our argument was that they should be as well protected as the Americans. And although we kept the relationship always with Mr Cameron Im sorry, Mr Brown, youll note in the letters between he and I, we always finished with best wishes to our families. 2.79 Mr Murdochs interest, and that of The Sun, in British soldiers included News International Supply Company Ltd funding the Leader of the Oppositions Combat Stress Summit at the House of Commons, as declared in Mr Camerons entry for 15 July 2009 in the Register of Members Interests.108 Mr Brown was the subject of strongly worded criticism by The Sun on matters relating to Afghanistan. Mr Cameron said that he had not had a conversation either with Mr Murdoch or any other proprietor akin to that which Sir John Major had had with Mr Murdoch in which the latter had made clear that he could not support the Conservative Party unless policy on Europe was modified.109 On questions of media policy, Mr Murdoch denied discussing broadcasting regulation with Mr Cameron, BBC license fees, or Ofcoms role. He said, surprisingly, that the BBC and Ofcom had not come up in conversation even to the extent of his view being sought:110 LORD JUSTICE LEVESON: Id like to ask you to separate out in your mind the question whether you might be discussing some topic or issue for commercial advantage youve told Mr Jay that you never did from the separate question: whether in fact these were topics that were worthy of discussion and on which you had a view. So, for example, youve mentioned that you talked about Afghanistan, and it would be perfectly reasonable for you to have a view on that. Lots of people will. And your view may be informed by your worldwide contacts through the businesses that you operate. Thats merely your view. But, therefore, your view on, for example, the regulation of television would itself be of value and may be of interest to those who are formulating policy, not because it necessarily would affect News Corp, but because this is a business to which you have devoted your life, therefore its not surprising you will have strong views and Im just slightly surprised A. I understand.
p3, lines 11-25, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-25-April-2012.pdf 107 pp6-8, line 15 -8, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-25-April-2012.pdf 108 David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-DC-3.pdf 109 p44, lines 3-11, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 110 pp5-6, line 6 -1, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-25-April-2012.pdf
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LORD JUSTICE LEVESON: if nobody did ask your view. A. I understand, sir. I just wish to say that Id long since become disillusioned and it was a waste of time to talk to politicians about the BBC, and that was about all there was to it. And Ofcom, no, I did not speak to him about that. It would have been asking for something, probably, and I didnt do that. 2.82 Mr Murdoch was at pains to point out that if his priority had been to secure the most benign regulatory environment for his business interests then he would always have supported the Conservative Party which, of course, has not always happened. He said:111 No, Mr Jay, you keep inferring that endorsements were motivated by business motives, and if that had been the case, we would have endorsed the Tory Party in every election. It was always more pro business. I could have been like the Telegraph. I could even have texted him every day. But I didnt. I was interested in issues. (emphasis added) And later:112 If Id been interested in commercial interests, I would have supported the Tory Party in every election, because they were always more pro business (emphasis added) 2.83 He did not pretend though that his interest in issues was entirely divorced from his business interests: it was also in my interests to reflect the views or to talk to our readers, and maybe attract more readers.113 For his part, Mr Cameron was emphatic that there had been no deals between the Conservative Party and News International. He rejected the suggestion that there had been either express or implied deals with the media with this answer:114 A. I dont accept that. First of all, on this idea of overt deals, this idea that somehow the Conservative Party and News International got together and said, You give us your support and well wave through this merger, that by the way we didnt even know about at that stage, I think the idea of overt deals is nonsense, and youve heard that from lots of people in front of this Inquiry. I also dont believe in this theory that there was a nod and a wink and some sort of covert agreement. Of course, I wanted to win over newspapers and other journalists, editors, proprietors, broadcasters. I worked very hard at that because I wanted to communicate what the Conservative Party and my leadership could bring to the country. I made those arguments. But I didnt do it on the basis of saying, either overtly or covertly, Your support will mean Ill give you a better time on this policy or that policy, and there are plenty of examples of policies that I believe in that the people who were backing me didnt believe in. 2.85 One meeting which was to prove important from the point of view of public perception, if not of substance, was that which occurred on board a yacht, probably Elisabeth Murdochs, off the Greek island of Santorini, on 16 August 2008.115 The meeting, which resulted a brief face-
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p3, lines 17-23, Rupert Murdoch, ibid p6, lines 11-13, Rupert Murdoch, ibid 113 p6, lines 16-19, Rupert Murdoch, ibid 114 pp32-33, line 9-4, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 115 pp9-10, line 21-6, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-25-April-2012.pdf
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to-face encounter in a social context, involved some convoluted travel arrangements which were made possible by the provision of a private jet owned by Matthew Freud, Elisabeth Murdochs husband and a longstanding friend of Mr Cameron.116 Mr Cameron, who declared the flight in the Registry of Members interests, explained the lengths to which he had been prepared to go to meet Mr Murdoch:117 My wife and two of my children flew on Mr Freuds jet from Farnborough to Istanbul, where I met them on the way back from a visit to Georgia (which had recently been invaded by Russia). We then flew on the jet to Santorini where I met Mr Freud on his yacht before meeting Rupert Murdoch. After that we returned on the jet to Dalaman for a family holiday. My family and I did not fly back to London on the jet and I paid for my air fare as well as that of my family. 2.86 The excursion to Santorini was proposed to Mr Cameron by Mr Freud. For Mr Cameron it was an opportunity to try and win support from Mr Murdoch, by engaging directly at a personal level:118 Well, from my point of view, it was just a better opportunity to try to get to know Rupert Murdoch better. Obviously I was trying to win over his newspapers and put across my opinions, so for me it was just an opportunity to try and build that relationship. It was quite a long way to go and all of that, but it seemed a good opportunity. 2.87 For Mr Murdoch, the meeting was less memorable. He did not recall it and had had to check with his wife and daughter to remind himself.119 He regarded the lengths to which Mr Cameron had gone to meet him as not unusual and one got the feeling that Mr Murdoch was well used to political leaders seeking him out: a telling indicator of the power and importance of one of the biggest media proprietors:120 A. Well, I think Ive explained that politicians go out of their way to impress people in the press, and I dont remember discussing any heavy political things with him at all. There may have been some issues discussed passingly. It was not a long meeting. As I say, I dont really remember the meeting. I think thats part of the democratic process. They all politicians of all sides like to have their views known by the editors of newspapers or publishers, hoping that they will be put across, hoping that they will be that they will succeed in impressing people. Thats the game. The proprietor later added:121
p57, lines 18-21, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 117 p67, para 199, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf; Rupert Murdoch was missing from the list of people Mr Cameron listed in exhibit DC2 as having been present on 16 August 2008 but he rapidly corrected this error (which arose at a time when the meeting was already in the public domain) in his oral evidence, pp56-57, line 14 3, David Cameron, http://www.levesoninquiry.org. uk/wp-content/uploads/2012/06/Transcript-of-Morning-Hearing-14-June-2012.pdf 118 p59, line 11-17, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 119 p26, para 107, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/WitnessStatement-of-Keith-Rupert-Murdoch2.pdf; p10, lines 1-6, Rupert Murdoch, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/04/Transcript-of-Afternoon-Hearing-25-April-2012.pdf 120 p10, lines 13-24, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-25-April-2012.pdf 121 p11, lines 11-14, Rupert Murdoch, ibid
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Mr Cameron might, of course, think stopping in Santorini would impress me. I dont know. But I certainly didnt ... I didnt, I dont have any fealty to the Tory Party or to the Labour Party ... 2.88 Mrs Brooks recollection was that Mr Cameron had spent an afternoon and an evening with them.122 She had been a party to some but by no means all of the conversation between Mr Cameron and Mr Murdoch and concluded that:123 Well, it seemed to it was a very cordial meeting and it went well. Like I say, it lasted for either an afternoon or an evening, so it wasnt particularly long. James Murdoch 2.89 Mr Cameron saw more of James Murdoch than Rupert Murdoch whilst in Opposition. There were at least 15 meetings during this period.124 The type of contact was similar, typically taking place over meals or at events.125 Mr Camerons purpose in meeting James Murdoch was to get across his political message in the hope of winning the support of News International:126 most of these meetings were really about me trying to promote Conservative policy, the Conservative approach and the rest of it, but sometimes, because Im interested in media issues and have longstanding views on them, sometimes Im sure we would have discussed them. 2.90 2.91 There were wide ranging discussions including defence and economy.127 As James Murdoch put it: discussions were on a broad range of subjects, from foreign policy to other things.128 Of particular interest to the Inquiry, they also discussed both the role of Ofcom and the BBC, subjects on which each held different views. Speaking about the BBC and Ofcom, Mr Cameron put it this way:129 Im sure that over the years Ive discussed some of those issues with James Murdoch. He has very strong views on them, I have very strong views, theyre not really the same views, and Im sure we would have had discussions about it. Perhaps particularly well, I think probably on both. I dont recall the specifics, but Im sure we must have discussed our views. 2.92
122
These differences of view did not prevent News International ultimately coming to the view that The Sun should stop supporting Mr Brown and instead support Mr Cameron. When that
p49, lines 1-2, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-11-May-2012.pdf 123 p49, lines 17-19, Rebekah Brooks, ibid. Note that the transcript here records Mrs Brooks as saying that the duration of the stay was either an afternoon or an evening whereas she is earlier recorded as saying an afternoon and an evening. On any view it was a short stay. 124 p54, lines 8-12, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 125 David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-DC-2.pdf; James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-JRJM-10.pdf 126 p61, lines 4-10, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 127 p64, lines 3-16, David Cameron, ibid 128 p61, lines 10-12, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-24-April-2012.pdf 129 p60, lines 15-22, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf
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time came, it was James Murdoch who first signalled the change of course to Mr Cameron. Both the differences of view and the circumstances of The Suns political change of mind are discussed further below.130 Rebekah Brooks 2.93 Influential, and supremely connected, Rebekah Brooks (ne Wade) was editor of The Sun when Mr Cameron became Leader of the Opposition. She remained in that role until September 2009 when she was promoted to become Chief Executive of News International.131 The Inquiry took evidence from both Mr Cameron and Mrs Brooks about their contacts. Both provided lists of their contacts, Mr Cameron a list of meetings with media figures as Leader of the Opposition and Mrs Brooks a list of meetings with leaders of political parties.132 As has already been adverted to above, there were many straightforward reasons why Mr Camerons list could not be 100% accurate or comprehensive.133 Similar considerations applied to Mrs Brooks list and she accepted that hers was not comprehensive.134 It is plain enough that neither list is comprehensive insofar as it relates to contact between the two because each contains a number of entries relating to such contact not found in the other. Nevertheless, they were useful starting points for piecing together enough of their contact to form a reliable impression of what had passed between them in this period. Supplemented by the oral and documentary evidence, the Inquiry was able to build a picture, amply sufficient for its high level Terms of Reference. The account which follows is drawn from the totality of the evidence. After the leadership contest, contact started on 18 January 2006, when Ms Wade (as she then was) was one of a party of senior News International figures who accompanied Rupert Murdoch when he lunched with Mr Cameron.135 During the leadership race itself, Mrs Brooks did not recall supporting any particular candidate. She said:136 Q. Mrs Brooks, were onto Mr Cameron now, According to his biography, in 2005, you actually supported Mr Liam Fox for the Conservative leadership. Is that correct or not? A. I dont think that is correct. I cant I dont think the Sun came out for a particular candidate in the leadership. We probably didnt support Ken Clarke because of Europe, but I dont remember actually having a particular line in the paper for the leadership. 2.96 Ms Wade next dined with Mr Cameron, in the company of Trevor Kavanagh on 28 March 2006. Further dinners followed on 30 September and 1 October 2006, both in the company of a number of journalists from other media companies.137 Ms Wades record of contact also included a meeting at a hotel on 15 June 2006.138
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paras 2.138-2.159 and paras 2.120-2.137 below p1, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-RebekahBrooks.pdf 132 David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-DC-2.pdf Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-RMB-11.pdf 133 para 2.75 above 134 p41, lines 13-21, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-11-May-2012.pdf 135 David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-DC-2.pdf 136 p46, lines 1-9, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-11-May-2012.pdf 137 p5, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-RMB-11.pdf lists a dinner on 2 October 2006 but not 1 October 2006 138 p5, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-RMB-11.pdf,
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Meetings with Mr Cameron in 2007 started with a lunch on 16 January 2007, attended by colleagues from both The Sun and the NoTW and included a dinner on 1 October 2007, at which Les Hinton and journalists from The Sun were present, as well as drinks on 30 December 2007. As has already been discussed above, it was during the course of this year that Mr Coulson was recruited by Mr Cameron who spoke to Mrs Brooks about him.139 Mrs Brooks schedule of meetings with party leaders records a dinner with Mr Cameron on 24 March 2007. As for telephone contact during this period, including mobile phone contact, Mr Cameron described telephoning less than once a week. Less often, he thought, than Mr Brown:140 In opposition, perhaps particularly sort of 2006, 2007, not a huge amount. I mean, I always felt when I did ring her, ... it felt like I was telephoning a lot less than Gordon Brown, which I thought was interesting, that he was the Prime Minister and I was the leader of the opposition. My sense was I was in contact a lot less than he was. But I cant put numbers on it. But certainly, you know, in 2006, 2007, not necessarily every week, I dont think.
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In 2008, Mr Cameron and Ms Wade lunched on 23 April 2008. They were both at a social event on 5 July 2008 and an event on 10 July 2008. On 16 August 2008 they were both at a dinner with Matthew Freud and Elisabeth Murdoch (this being the occasion on which Mr Cameron flew to Santorini and also met Rupert Murdoch). Relations between Mr Cameron and Ms Wade were already warm by this stage. She accepted that by then she was quite friendly with Mr Cameron.141 Ms Wade and colleagues from The Sun dined with Mr Cameron on 29 September 2008.
2.100 The Rt Hon Dominic Grieve MP was the Shadow Home Secretary between June 2008 and January 2009.142 There was animated discussion about the Human Rights Act at a dinner at which Ms Wade, Mr Grieve and other shadow cabinet members, but not Mr Cameron, were present. The discussion turned upon the Conservative Partys interest in the possibility of repealing the Human Rights Act and replacing it with a British Bill of Rights. According to Mrs Brooks, Mr Grieve was just making the legal point that it was very difficult to do. Mrs Brooks denied rumours that she later sought to persuade Mr Cameron to remove Mr Grieve from his portfolio as Shadow Home Secretary, asserting that it was his colleagues who were in disagreement with him at the time:143 No, I did not tell Mr Cameron to move him. What the conversation as I say, it was a very heated conversation, borne out by his colleagues were trying to almost silence him at the table because he was, in effect, saying one of the promises the Conservatives had made to the electorate was they were going to repeal and it was almost the opposite way around, that they were concerned that his view was not to be taken seriously, and as it turned out, he was entirely correct.
paras 2.14-2.42 above p79, lines 14-23, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 141 p49, lines 20-22, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-11-May-2012.pdf 142 http://www.dominicgrieve.org.uk/about-dominic-grieve 143 p110-111, lines 18-2, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcriptof-Morning-Hearing-11-May-2012.pdf
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2.101 Mrs Brooks also denied expressing a view in any way to Mr Cameron about Mr Grieve.144 2.102 Mrs Brooks list of meetings with the leaders of political parties refers to a breakfast meeting with Mr Cameron at the start of the year, on 22 January 2008 and to a New Years Eve Party on 31 December 2008. Neither of these entries is in Mr Camerons list. The New Years Eve Party was held at the Brooks farm and was in fact hosted by Mr Brooks sister. By 2008, Mr Cameron counted Ms Wade as a good friend, notwithstanding her papers support, and her personal support, for Mr Brown.145 The growing friendship had been helped along by the fact that Mr Cameron had known Charlie Brooks, whom Mrs Brooks was to marry in 2009, for over 30 years.146 It did not prevent her newspaper giving its continued support to Mr Browns Government and remaining critical of the Conservatives. For example, on 14 October 2008, The Sun criticised Conservative opposition to extending the detention time for terrorist suspects to 42 days.147 2.103 There was a dinner on 29 January 2009 at which a number of newspaper editors and Robert Peston were present. Mr Cameron and Mrs Brooks were both at Mr Brooks book launch on 1 April 2009. Mr Cameron was then one of a number of high profile politicians who attended the wedding of Ms Wade to Mr Brooks on 13 June 2009. As has been explained he was a friend of both the bride and groom. The wedding further cemented Mr Camerons friendship with Mrs Brooks. In his words: our relationship got stronger when she married Charlie Brooks, who Ive known for some time and whos a neighbour.148 2.104 It was during this month that Mrs Brooks recalled initial internal discussions with Rupert and James Murdoch about transferring The Suns political support.149 Although it was not Mrs Brooks who informed Mr Cameron of The Suns decision to abandon its support for Mr Brown, Mr Cameron had felt that she was onside months rather than weeks before it actually took place.150 On 21 September 2009, a few days before The Sun announced its change of allegiance, James Murdoch, Mrs Brooks and Mr Cameron had dinner together. The three also shared breakfast on 2 November 2009 and on 19 December 2009 Mr Cameron dined with Mrs Brooks and Rupert Murdoch at the Brooks. 2.105 Mrs Brooks list of meetings with party leaders for 2009 includes a lunch at the home of James and Kathryn Murdoch on 3 May 2009, a meeting on 1 September 2009 and dinner at the Camerons home on 24 October 2009. None of these meetings appeared in Mr Camerons record. As best she could recall, Mrs Brooks thought that the European constitution debate and Afghanistan were discussed on 3 May 2009.151
p111, lines 3-7, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-11-May-2012.pdf 145 pp78-79, lines 19-5, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 146 p71, para 209, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 147 pp71-72, para 212, David Cameron, ibid 148 p79, lines 1-5, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 149 pp51-52, lines 17-20, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcriptof-Morning-Hearing-11-May-2012.pdf 150 p77, line 9-13, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 151 p51, line 1-7, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-11-May-2012.pdf
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2.106 The increasing social contact that Mr Cameron was having with Mrs Brooks brought about a commensurate increase in telephone contact. When asked about such contact in the years 2008 and 2009, Mr Cameron put it this way:152 I think as we got closer to the election and the decision of the Sun and also the wedding and shes moved in to Charlie Brooks house, which is very near where I live in where we live in the constituency, then the level of contact went up, and we saw each other socially more. And then:153 Its very difficult because I dont have a record and I dont want to give you an answer that isnt right, so, you know, sometimes I expect we would have been talking to each other quite a bit, particularly around the time perhaps of the wedding or when we were both in Oxfordshire, we would have had more frequent contact (emphasis added). 2.107 A check by Mr Cameron with Mrs Samantha Camerons diary was able to provide more detail, enabling Mr Cameron subsequently to add: [Mrs Cameron] points out that we were only in the constituency 23 weekends in 2008, 23 weekends in 2009 and I think 15 in 2010. And she reckons we probably didnt see them more than on average once every six weeks, so that is a better answer than what I was able to give you earlier.154 2.108 Mr Cameron and Mrs Brooks also used SMS text messages to keep in touch. Mrs Brooks estimated that she exchanged texts on average once per week with Mr Cameron, more during the subsequent general election campaign:155 Probably more between January 2010, maybe during the election campaign, maybe slightly more, but on average, once a week. 2.109 Text contact between Mr Cameron and Mrs Brooks reflected the close and friendly relationship which both explained had developed. This was not in issue because Mr Cameron agreed in general with the gist of her evidence about the quantity and tone of text messages.156 If illustration is needed, when asked how the messages were signed off, Mrs Brooks said:157 A, He would sign them off DC in the main Q. Anything else? A. Occasionally he would sign them off LOL, Lots of love, actually until I told him it meant laugh out loud, then he didnt sign them like that any more. But in the main, DC, I would have thought.
p80, line 1-6, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 153 p80, line 12-17, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 154 p1, lines 8-14, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-14-June-2012.pdf 155 p73, lines 20-22, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-11-May-2012.pdf 156 p79, lines 6-10, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 157 p76, lines 1-4, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-11-May-2012.pdf
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2.110 It is important that I repeat what I made clear during the hearing. Like everyone else, politicians are entitled to be friendly with whomsoever they wish and there must remain some space for a private life in even the most public of figures. For the purposes of the Inquiry, concerned with the relationship between politicians and the press, what matters is the extent to which the influence of the press can be manifest not only in public, through the megaphone of newspapers, or formally through transparent access, but also informally in ways which might cause a perception of undue influence. It is unnecessary, intrusive and unhelpful to descend into too much detail of personal contact; only its extent needs to be clear: this also I shall return to in the context of conclusions and recommendations. 2.111 That point naturally leads to the quantity of text messages passing between Mr Cameron and Mrs Brooks which were disclosed by News International and thus identifies the approach of the Inquiry to them. Mr Jay explained why only one of these was put into evidence:158 I should make it clear before I read it out that News International have recently disclosed a number of other text messages between Mrs Brooks and Mr Cameron, pursuant to a Section 21 request. A section 21 request is in fact an order under statute requiring people to disclose material. Those relate to the period October 2009, May 2011 and June 2011. In the Inquirys judgment, all the other text messages I have referred to are irrelevant to its terms of reference. Thats why were only going to look at one. And News International through their solicitors Linklaters have also explained why text messages in other monthly periods are not available, and their letter will be put on our website. So the one were looking at is 7 October 2009, which I think is during the party conference. 2.112 The text in question (which has been the subject of considerable media attention) was sent by Mrs Brooks to Mr Cameron on 7 October 2009 at 16:45hrs, just days after The Sun had abandoned support for Mr Brown. After the first line which was redacted on grounds of relevance, the text read:159 But seriously [which suggests that the first line contains or might contain something of a jocular nature] I do understand the issue with the Times. Lets discuss over country supper soon. On the party it was because I had asked a number of NI [thats obviously News International] people to Manchester post endorsement and they were disappointed not to see you. But as always Sam was wonderful (and I thought it was OEs that were charm personified!) I am so rooting for you tomorrow not just as a proud friend but because professionally were definitely in this together! Speech of your life? Yes he Cam! (emphasis added) 2.113 The reference in the message to tomorrow was to Mr Camerons speech to the Conservative Party Conference. The background to the message was that Mr Cameron had apologised for not attending the Times party at the conference.160 The striking phrase were definitely in it together was, in Mr Camerons words, a reference to the fact that, having parted company with Labour, The Sun wanted to: make sure it was helping the Conservative Party put its
pp81-82, lines 23-10, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Morning-Hearing-14-June-2012.pdf, and http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Letterfrom-Linklaters-regarding-Rebekah-Brooks-communications-with-Prime-Ministers.pdf 159 pp82-83, lines 19-5, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 160 p83, lines 8-18, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf
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best foot forward with the policies we were announcing, the speech I was going to make and all the rest of it and we were going to be pushing the same political agenda.161 The text illustrates how complete the sudden transfer of support was and how close the communication between News International and Mr Cameron was. 2.114 Mr Cameron confirmed that a country supper was the sort of interaction he often had with Mrs Brooks and demonstrates how the discussion of professional matters in a very informal social environment was occurring.162 2.115 The only pre-election meeting in 2010 between Mrs Brooks and Mr Cameron recorded in Mr Camerons schedule of contact with the media in opposition was on 29 January 2010, at an event also attended by the editors of the Times and the Sunday Times.163 This appears to correspond with Mrs Brooks record which refers to a single meeting at News Corporations Davos conference in that month.164 More meetings in fact took place. Mrs Brooks recalled meeting the Prime Minister three or four times between January 2010 and the election.165 2.116 During the general election campaign of 2010 Mrs Brooks put the frequency at twice a week. As to their content, she said:166 Some, if not the majority, were to do with organisation, so meeting up or arranging to speak. Some were about a social occasion, and occasionally some would be my own personal comment on perhaps the TV debates, something like that. 2.117 Mrs Brooks did not text either Mr Brown or Mr Clegg during the campaign.167 2.118 Tracing the development of the communications between Mr Cameron and Mrs Brooks during opposition reveals clear trends. The volume of contact increased over time, particularly as a result of the increasing social contact. The nature of the contact changed. At the start it can only really have involved Mr Cameron trying to get his political message across to the editor of a newspaper then supporting the opposition. By the end, it was less a matter of Mr Cameron getting his message over to the new editor of The Sun and more a question of News International being in it together with Mr Cameron, and seeking to get his message across for him. 2.119 It was not only Mrs Brooks who played a part in the developing contact between Mr Cameron and News International. Matthew and Elisabeth Freud (ne Murdoch) also moved in similar circles. As has been described, Mr Freud provided his private jet to enable Mr Cameron to meet Rupert Murdoch in Santorini.168 He and his wife had dinner with Mr Cameron and Ms Wade during the course of Mr Camerons brief visit on that occasion. Rupert Murdoch first met Mr Cameron at a picnic hosted by his daughter Elisabeth.169 Mr Camerons list of contacts with media figures as Leader of the Opposition records six occasions on which Mr Cameron met either one or both of the Freuds. Three of these occasions are listed as social contact and the remainder as dinner.
pp83-84, lines 22-9, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 162 p84, lines 10-13, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 163 David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-DC-2.pdf 164 p6, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-RMB-11.pdf 165 p75, lines 1-2, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-11-May-2012.pdf 166 p74, lines 6-10, Rebekah Brooks, ibid 167 p75, lines 7-12, Rebekah Brooks, ibid 168 See above at paras 2.85 2.87 169 See above at para 2.74
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The Suns transfer of support from Labour to the Conservatives

2.120 As relations warmed between Mr Cameron and Mrs Brooks, so they appear to have cooled between Mr Brown and Mrs Brooks, at least professionally. Criticism of Mr Browns Government increased and the subject of Afghanistan, in particular, became an issue on which The Sun was highly critical of Mr Brown. The title ran a campaign critical of the equipment and resources being allocated to British forces in Afghanistan, reflecting Rupert Murdochs strong views on the issue. One of the last headlines which Mrs Brooks published as the editor of The Sun, on 28 August 2009, read Dont you know theres a bloody war on?.170 2.121 Rupert Murdoch, James Murdoch, Mrs Brooks, Dominic Mohan, Trevor Kavanagh and Tom Newton Dunn were all involved in the discussions which led to the decision to abandon Mr Brown.171 The discussions appear to have begun around June 2009.172 2.122 By 10 September 2009 the plan to switch support was sufficiently concrete for James Murdoch to meet Mr Cameron at The George and tell him that it was going to happen. Mr Cameron described a short meeting of 30-40 minutes duration. At that stage Mr Cameron was not given the precise date on which the switch would be announced but he was given an indication that it would be during the conference season. Mr Cameron recalled:173 It was a drink and a catch-up, but it was he wanted to tell me that the Sun was going to support the Conservatives and he told me, I think, from my memory, that it was going to happen around the time of the Labour conference, and I remember obviously being pleased that the Conservative Party was going to get the Suns support, and I think we had a conversation about other policy issues at the time. Thats my memory of it. 2.123 Mr Cameron could remember discussion of economic policy and defence but not mention of Conservative policy on either the BBC or Ofcom, about which James Murdoch had pronounced views. Both bodies had received trenchant criticism as recently as 28 August 2009 in the controversial MacTaggart lecture that James Murdoch had delivered. Asked directly whether either had been mentioned Mr Cameron said:174 A. I dont recall that, and I think it unlikely. I think that this was he was very keen to tell me directly that the Sun was going to support the Conservatives, that he felt on the big economic judgment about what Britain needed we had the right argument, the government had the wrong argument, and my memory is thats what the conversation was about.
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LORD JUSTICE LEVESON: Yes, you said you had a conversation about other policy issues?
p52, lines 1-2, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-11-May-2012.pdf; http://www.thesun.co.uk/sol/homepage/news/campaigns/our_boys/2611351/ Dont-you-know-theres-a-bloody-war-on.html 171 p18, para 8.6, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/WitnessStatement-of-James-Rupert-Jacob-Murdoch.pdf; pp55-56, lines 25-3, Rebekah Brooks, http://www.levesoninquiry.org. uk/wp-content/uploads/2012/05/Transcript-of-Morning-Hearing-11-May-2012.pdf 172 p51, para 20-22, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-11-May-2012.pdf 173 p63, lines 1-10, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 174 pp64-65, lines 3-1, David Cameron, ibid
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A. Yes, he has lots of enthusiasms that arent about the media. Hes particularly enthusiastic about defence. He takes the view we should have at least six aircraft carriers, I think at the last count, rather than two, so he has lots of enthusiasms and Im sure we discussed some of those, but the key my memory is, and its difficult to recall all of these events, I definitely remember him saying the Sun was going to support the Conservative Party. I wouldnt forget that. I think he gave me a hint of the timing, and my memory is it was mostly about the big economic picture, because that was the key issue of the day. 2.124 James Murdoch emphatically denied any mention of regulatory issues on 10 September 2009: At that meeting I certainly didnt.175 2.125 The change, when it came, was calculated to do maximum political damage to Mr Brown.176 It was announced through The Sun headline: Labours Lost It, published on 30 September 2009, the day after Mr Browns speech to the Labour Party Conference.177 The timing and choice of headline bore a significance that went beyond simply communicating the transfer of The Suns political support, important though that was. The emphasis was placed heavily on the move away from Mr Brown personally rather than the shift towards Mr Cameron. 2.126 Mr Coulson would have preferred an endorsement of Mr Cameron timed to coincide with the Conservative Party Conference. He stated: I felt it was more a rejection of Labour than a positive endorsement of us. If Id had half the influence on The Sun that some claim, the front page would have looked very different;178 and he said: I didnt get involved in the Suns decision on the timing and frankly, had I done, I would have wanted it to come as a positive endorsement of the Conservatives in our conference.179 Nevertheless, he regarded securing the titles support as a serious positive for us .180 2.127 A number of explanations were given by witnesses for the change in support. Rupert Murdoch confirmed that he had been very much involved in the decision. He felt that Labour was making lots of mistakes181 and also compared the decision to that which he had made in 1997 only in reverse, stating: I supported a shift to Labour by NIs titles when I thought the Conservative Party had run out of ideas, and I supported a shift to the Conservative Party after 13 years of Labour rule for the same reason.182 2.128 James Murdoch described the discussions which led to the decision in terms of discussion of Labour policies:183
p67, James Murdoch, lines 2-5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-24-April-2012.pdf 176 p66, lines 20-23, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 177 http://www.thesun.co.uk/sol/homepage/news/2661063/The-Sun-Says-Labours-lost-it.html 178 p21, para 100, Andy Coulson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statementof-Andy-Coulson.pdf 179 p60, lines 14-17, Andy Coulson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-10-May-2012.pdf 180 p67, lines 15-17, Andy Coulson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-10-May-2012.pdf 181 p90, lines 6-11, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-25-April-2012.pdf 182 p29, para 120, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/WitnessStatement-of-Keith-Rupert-Murdoch2.pdf 183 p18, para 8.6, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/WitnessStatement-of-James-Rupert-Jacob-Murdoch.pdf
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The Sun is a campaigning paper involved in many policy issues, and there were discussions about some of these issues. The paper had started moving away from the Labour party over lack of funding, supplies and support for British troops in Afghanistan after the government had committed to the conflict there. The consensus was reached after discussing a range of policies and effectiveness at implementing them and resulted in the decision to support a change of Government. 2.129 He confirmed that polling data was available, and accepted that they were trying to read the mood of the country. There was also consideration of the individuals involved and the readership.184 The decision had a number of components. 2.130 Mrs Brooks described having an instrumental role in the change of support. Asked whether she had played a major role, she said: I was certainly instrumental in it. I mean, ultimately, Rupert Murdochs the boss, but I was instrumental in it, as was Trevor Kavanagh, Tom Newton Dunn and the editor, Dominic Mohan.185 She said that the decision was taken because it was the right thing to do for the paper and for our readership.186 2.131 All those from whom the Inquiry received evidence denied that there had been any conditions or exchanges, whether express or implied, upon which The Suns support was contingent.187 The allegation that the transfer of The Suns support to the Conservatives was the product of a deal between News International and the Conservative Party was made publicly by Lord Mandelson when he was interviewed on the Today programme on BBC Radio 4, a matter of weeks after The Suns about turn. He told the Inquiry that the basis for his view was what he perceived to be a coincidence between the views expressed in James Murdochs MacTaggart lecture and Conservative media policy:188 Q. Im going to come to that. Your feeling was that some sort of deal had been done between the Conservative Party and News International. You said as much on Radio 4, the Today programme, on 11 November 2009, didnt you? A. I did say that, and I know that, you know, some people have said that I was just, you know, throwing around these claims for specious reasons or without evidence. In fact, I made these comments both on the Today programme and in the House of Lords, when it was clear to me that there was more than a coincidence, if I can put it that way, between the Torys media policies and the views that were being expressed, for example, by James Murdoch in his MacTaggart lecture. In July 2009, Mr Cameron had pledged to dismantle the hated Ofcom I mean hated by News International. He said that it was part of the Tories cutting back of the
pp94-95, lines 21-2, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcriptof-Morning-Hearing-24-April-2012.pdf 185 pp55-56, lines 25-3, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcriptof-Morning-Hearing-11-May-2012.pdf 186 p60, lines 13-17, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-11-May-2012.pdf 187 pp51-60, lines 10-18, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcriptof-Morning-Hearing-11-May-2012.pdf; pp58-69, lines 10-11, Dominic Mohan, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-9-January-2012.pdf; p20, para 9.9, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-James-Rupert-Jacob-Murdoch.pdf; p90, lines 3-11, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of-MorningHearing-25-April-2012.pdf 188 pp71-72, lines 5-7, Lord Mandelson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-21-May-20121.pdf
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quango state and he said that under the Conservatives Ofcom will cease to exist as we know it. When I subsequently learned that the team supporting the Conservative Partys media policy developments were the same team and the same people who were helping Mr Murdoch to draft his speeches, including the MacTaggart lecture, I didnt have to go very far to put two and two together to realise that this coincidence of policy had slightly greater meaning and that there was, in fact, a sort of organic link between the two, which is why I said what I did. 2.132 Lord Mandelsons public comments contrast with those which he later expressed on the issue in his autobiographical book, The Third Man, which was published in the following year. He wrote:189 At his [Mr Browns] urging I spoke out on that issue publicly on a couple of occasions following the Suns switch. In fact, I suspected that the real reason for the change was simpler, and in a way even more discouraging. The Sun was a mass market paper. It saw its interests as backing a winner. While I was still not convinced, or at least not ready to accept, that a Tory victory at the next election was inevitable, given the yawning gap we would have to make up in the opinion polls, it was certainly looking that way (emphasis added). 2.133 Questioned about the apparent inconsistency, he said that his two statements were not mutually exclusive identifying two reasons why he thought that The Sun would have wanted to support the Conservatives: a desire to back the likely winner and commercial self-interest of its proprietor. Lord Mandelson said:190 First of all, I chose my words in finishing this book in 2010 without any prescience that I might be poring over it line by line, word by word with you in the course of justice, but secondly, and more seriously, two things were operating here, in my view: one, the Conservatives looked as if they were on the up and with a good chance of winning the election, and the Murdochs wouldnt ignore it. Secondly, they would have seen very clearly that their commercial interests would have been suited more by a Conservative victory, given what Mr Cameron was saying in his own public speeches, than they would with a further Labour government, you know. 2.134 Pointing to The Suns campaigns for a referendum on Europe and about Broken Britain, Mr Brown said that The Sun had never really supported him: at no point in these three years that I was Prime Minister did I ever feel I had the support of the Sun.191 Nevertheless, he identified a real change and felt that, under James Murdoch, News International adopted an aggressive public agenda and sought to put its own commercial interests first. He thought the Conservative Party went along with the media policies which News International sought:192 News International had a public agenda. Whats remarkable about what happened in the period of 2009 and 2010 is that News International moved from being I think
Mandelson, P, The Third Man, 2010, p489 pp74-75, lines 25-12, Lord Mandelson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcriptof-Afternoon-Hearing-21-May-20121.pdf 191 p24, lines 4-6, Gordon Brown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-11-June-2012.pdf 192 pp37-38, lines 22-15, Gordon Brown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Morning-Hearing-11-June-2012.pdf
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it was under James Murdochs influence, if I may say so to having an aggressive public agenda. They wanted not only not just to buy BSkyB, of course; they wanted to change the whole nature of the BBC. They wanted to change Ofcom, they wanted to change the media impartiality rules, they wanted to change the way we dealt with advertising so that there was more rights for the media company to gain advertisers. They wanted to open up sporting events so that Sky could bid for them in a way that they were perfectly entitled to put this agenda. That was the agenda they were putting publicly. I think what became a problem for us was that on every one of these single issues, the Conservative Party went along with the policy, whereas we were trying to defend what I believe was the public interest. (emphasis added) 2.135 Whatever the reaction of the Conservative Party to James Murdochs views about media policy in the United Kingdom (and they are explored below), for his part Mr Brown reached the point where he felt it was no longer worth talking to News International about the subject:193 It became very clear in the summer of 2009, when Mr Murdoch junior gave the MacTaggart lecture, that News International had a highly politicised agenda for changes that were in the media policy of this country, and there seemed to me very little point in talking to them about this. 2.136 Mr Brown provided an eleven point note to the Inquiry containing information and quotations from the Murdochs and Conservatives on which he relied in support of his view that the Conservatives in opposition and in Government shaped their policy to match the demands of NewsCorp on Ofcom, on the BBC, on TV advertising, on regulation and on the proposed takeover of BskyB.194 2.137 Mr Cameron rejected the allegation:195 To respond generally, and frankly it is absolute nonsense from start to finish. I think where it comes from is obviously Gordon Brown was very angry and disappointed that the Sun had deserted him, and as a result, in my view, he has cooked up an entirely specious and unjustified conspiracy theory to try and, I dont know, justify his anger. But Ive taken the time to look through the individual parts of policy that he points to, and in almost every case it is complete nonsense. Just to take a couple of examples, he makes the point about the listing of sporting events and particularly the Ashes, and actually it was the Labour government, his government, that delisted the Ashes. He makes a point about us taking a particular view on product placement. Again, it was a Labour government that started the process of changing the rules on product placement under his oversight. On the BBC, as Ive argued before, my position on the BBC is not the same as James Murdochs position on the BBC. I support the BBC, I support the licence fee. So the Conservative Party, I think, will be submitting a piece-by-piece response to this because it is complete nonsense, but Im very happy to go through the individual parts. But, as Ive said before, there was no overt deal for support, there was no covert deal, there were no nods and winks. There was a Conservative politician, me, trying
p39, lines 6-11, Gordon Brown, ibid Gordon Brown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-GB8-to-WitnessStatement-of-Gordon-Brown-MP.pdf 195 pp87-88, lines 11-17, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Morning-Hearing-14-June-2012.pdf
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to win over newspapers, trying to win over television, trying to win over proprietors, but not trading policies for that support. And when you look at the detail of this, as I say, it is complete nonsense.
David Camerons media policy and manifesto

2.138 Having identified the stance taken by Mr Brown on the one hand and Mr Cameron on the other, the matter can perhaps be left there. What will be important, however, is to examine whether (and, if so, to what extent) the allegation that the relationship between the press (and, more particularly, News International) might legitimately be argued to have affected public policy decisions of the new administration. It is therefore appropriate to consider Mr Camerons media policy and relevant parts of his general election manifesto. In doing so this subsection concentrates on policy towards the BBC and Ofcom. The BskyB bid is considered elsewhere in this Report.196 2.139 By the time of the general election of 2010, the Conservative Partys manifesto contained only a single paragraph about media policy and that concerned local media, particularly local television:197 Our plans to decentralise power will only work properly if there is a strong, independent and vibrant local media to hold local authorities to account. We will sweep away the rules that stop local newspapers owning other local media platforms and create a new network of local television stations. 2.140 Of relevance to the Conservative Partys policy towards the BBC, the manifesto contained a pledge relevant to its financing to: ensure the National Audit Office has full access to the BBCs accounts. So far as Ofcom was concerned, the general pledges to cut the quango state and any quangos that do not perform a technical function or a function that requires political impartiality, or act independently to establish facts were of relevance as is explained below.198 2.141 The principles underlying Mr Camerons approach to media policy were stated by him to be: the need for a strong BBC, backed by the licence fee; plurality of provision; proportionate, not artificial, rules on media ownership; and a greater role for local television.199 That statement of broad principles left plenty of scope as to the detail and during opposition Mr Cameron and his shadow cabinet colleagues debated and explored what that detail should be. The BBC 2.142 In March 2008 the Conservative Party published a discussion document, Plurality in a new media age, setting out its then current thinking. It entertained a particularly controversial
Part I, Chapter 6 p31, para 99, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf; p176, http://www.general-election-2010.co.uk/2010-general-election-manifestos/ConservativeParty-Manifesto-2010.pdf 198 p31, para 100, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 199 p32, para 103, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf
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idea as to the use to which the BBC licence fee might be put, known as top slicing, which was described in the document in these terms:200 One option is to consider whether other organisations should be allowed to bid for small parts of the licence fee. This would ensure a plurality of provision in key genres, such as daytime childrens TV and current affairs. However such a model would need to avoid the risk of distorting the commercial television market by mixing public and commercial funding, so it may be preferable for it to fund new channels rather than top up funding of existing channels. 2.143 In October of the same year Mr Cameron wrote an article about The Sun which was published under the headline Tory chief hits out Bloated BBC out of touch with viewers. It contained both praise for and criticism of the BBC, expressing particular concern about the negative impact which the BBC could have on small private sector competitors and proposing rules to prevent that from happening. In support of the BBC he wrote: I am a slightly rare creature a lifelong Conservative who is a fan of the BBC. I dont just mean the quality stuff If I tot it all up: rummaging around the BBC news website, Radio 4 every morning, Radio 5 on a Sunday, The Big Cat Diaries and whatever Andrew Davies has written up recently, I get a huge amount from the full range of what the BBC has to offer. And yes, I even approve of the way the BBC is funded. 2.144 Mr Cameron then critically observed that:201 Weve all seen in our own constituencies small internet businesses, often involved in education or other information provision, working away to create a market, to make some money, and then the BBC comes along and squish, like a big foot on an ant, that business goes out. He proposed: a better set of rules that stops the BBC from charging in and actually putting other people who are struggling to provide a market, out of work. 2.145 In a significant speech to the Oxford Media Conference in January 2009, Ed Vaizey, then Shadow Culture Minister, expressed support in principle for the BBC but made clear Conservative concerns about competition, the breadth of the BBCs activities, costs, funding, regulation and management. What he said merits full quotation because it articulates Conservative thinking at that time:202 We are fans of the BBC. In an uncertain world, the BBC provides a great resource for publicly-funded high-quality content. When looking for a solution to the future of public service broadcasting, we want one that is the least damaging to the BBCs integrity.
p40, para 117, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf; p4 of Plurality in a new media age 201 p69, para 203, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 202 http://www.conservatives.com/News/Speeches/2009/01/Ed_Vaizey_BBC_must_not_drive_up_stars_salaries.aspx
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Although we believe in plurality in public service broadcasting, we do not believe the solution to the challenges presented by the internet age is necessarily to try and create another BBC. Having said that, it is equally important that the BBC stop acting like a friendly monopolist, making noises about partnerships, and engages seriously in discussions about how to ensure plurality in public service broadcasting. On other matters: while we support the licence fee, and believe it is the best way to fund the BBC for the foreseeable future, we believe the level of the licence fee is at the top end of what is acceptable to the public. The current settlement which began in 2006 and lasts to 2012 built in increases of 13 15% over that period. That was a generous settlement when times were good. It may start to look prohibitive as times get increasingly bad. The BBC will have to think very hard about whether substantial licence fee increases can be justified in the coming years. The BBC Trust, under Sir Michael Lyons, has done a good job, and I would like to congratulate him. So what follows is not personal, it is, as they say, business. We think that there needs to be a clearer divide between the regulation and management of the BBC. The BBC and the BBC Trust should be clearly separate. The BBC should have its own chairman, who can cheer lead for the Corporation, while the head of the regulator gets on with regulating. A truly independent regulator would provide a genuine voice for the licence fee payer. Moving on from that, the expansion of the BBC into areas where the private sector is already working needs to be carefully watched. Our watchword will be simple if the private sector is already doing a good job in the area, or is developing a market in an area, the BBC should be prevented from going in with all guns blazing. Finally, there is the issue of costs. The Ross/Brand row was not just about bad taste, though of course that was important. It was also about the huge amount of money the BBC is paying Jonathan Ross and other stars. A public service broadcaster with guaranteed revenue shouldnt compete with the private sector on top talent salaries. In fact, I would go further and say the BBC actually pushes up the price of talent with its interventions. So we will ensure that the BBC publishes fully audited accounts which will include details of the salaries of all its top talent. The BBC should be prepared to defend salary and indeed all expenditure decisions it makes. 2.146 Significantly, Mr Vaizey went on to make clear that the Conservatives were already moving away from the idea of top-slicing the BBCs licence fee. He said:203 There are the solutions that involve the BBC straightforward top-slicing of the licence fee; partnerships with the BBC and BBC Worldwide, or by using money ring-fenced for digital switchover; or the sharing of resources such as studios and technology. Then there are the market solutions a merger with Five, with BBC Worldwide, changing the terms of trade, or a combination of these. We have been careful not to rule out any solution. But as I have indicated, we are less convinced about a solution that involves top slicing of the licence fee. (emphasis added)
203
pp33-35, para 107, David Cameron, ibid
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2.147 Two months later, in March 2009, in the context of an increasingly difficult economic climate, Mr Cameron personally returned to the question of the BBCs funding. He announced that a Conservative Government would freeze the licence fee:204 ... solving Labours Debt Crisis by making sure government lives within its means and delivers more for less. And its not just government that has to live within its means we all do. So today, I want to make an announcement that shows our expectation that government and all taxpayer-funded institutions should start leading by example. The BBC is one of our most important national institutions. It plays a vital role in bringing the country together, and I want to see it prosper and succeed and continue to be a fantastic cultural asset for Britain. But it also needs to maintain public support, and I want to see it leading by example at a time when the whole country is tightening its belt. And so I can announce today that we would freeze the BBC licence fee for one year. I think that would be an important signal to the country of the need for all public institutions, in these difficult economic circumstances, to do more with less. 2.148 In April 2009, the Rt Hon Jeremy Hunt MP launched a review of the creative industries which was chaired by former BBC Director General, Greg Dyke. It was one of a number of Conservative Party task forces formed in Opposition. Its work was still ongoing at the time of the general election. Elisabeth Murdoch, as CEO and Chairman of the Shine Group, was a member of the task force, one amongst a number of eminent industry figures.205 2.149 In October 2009, Mr Hunt told the Financial Times that he did not support Labours plan for state supported local television news on ITV, financed by top slicing the licence fee. On the topic of the ambit of the BBCs activities and competition he also said:206 It might sound well and good for [the BBC] to have, say, an angling website, but if it drove out of business every angling magazine in the country, you would have to question if it was the right sort of thing to do. 2.150 It was Mr Hunt also ultimately made clear that the Conservatives had rejected top slicing. On the Conservative Party website, he posted: on top-slicing We floated this idea two years ago and rejected it.207
2.151 In the result, when in power, the Coalition Government froze the BBC licence fee as Mr Cameron had promised to do. Mr Cameron was keen to point out that the imposition of a freeze left the BBC better off than many in the current climate of austerity and that the policy had fallen far short of what James Murdoch was advocating:208 We froze the licence fee, much to the anger of James Murdoch, who I think I think the Chancellor George Osborne [said] thought that it should have been cut. So we had
p36, para 109, David Cameron, ibid pp36-37, para 110, David Cameron, ibid 206 p39, para 114, David Cameron, ibid 207 p40, para 119, David Cameron, ibid 208 p89, lines 14-21, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf
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our own policy on the BBC licence fee which I think had been fair and reasonable to the BBC when other organisations have had their budgets cut be considerably more. So, again, this part of the conspiracy theory I think has absolutely no weight at all. 2.152 Mr Cameron rejected the suggestion that in imposing the freeze he had been meeting Mr Murdoch half way. He said:209 I think its quite difficult to argue, at a time when you know if you get into government youre going to have to be making spending reductions, that youre going to see the BBC licence fee go up and up and up, and I think we had a consistent and long-term argument, which very much flowed from my own views formed at Carlton, that the BBC needed to be strong, it needed the backing of the licence fee. I do think the BBC had gone into areas it shouldnt have done, and I mention that in some of my evidence, but I think this is a fair settlement for the BBC and its certainly not one that James Murdoch supported. 2.153 Mr Osborne recalled James Murdochs reaction to the decision to freeze the licence fee in these terms:210 Well, I remember this was a very specifically about the BBC licence fee, rather than as I say, James Murdoch would often let us have his views in public as well as in private about his view about the BBC, but specifically about the licence fee and our decision in October 2010 to freeze the licence fee but not to dismantle it, and indeed to, in effect, continue for the next five or six years with the current structure of BBC funding. Now, as I say in this statement, I cannot remember exactly how this conversation took place, and it may well have been on the phone, because its not obvious that there was a meeting where this would have had but I have a pretty clear memory of him being quite angry about our the decision we had taken, and I explained to him why I thought it was the right decision and why, in any case you know, we had always made it clear that we were not setting out to dismantle the BBC or radically cut the licence fee or distribute the licence fee in a different way, but he was clearly disappointed with that decision. 2.154 Commenting on James Murdochs 2009 MacTaggart lecture, Mr Osborne later made clear how significant were the differences between the Conservative Party and Mr Murdoch on the BBC:211 I disagreed with him, basically, and certainly David Cameron also disagreed with him, and I think you know, he had been agitating for some dramatic change in the funding of the BBC or the structure of the BBC and he was not going to get that from the Conservatives. Ofcom 2.155 The attitude adopted by Mr Cameron to Ofcom has to be viewed in the overall context of his policy on quangos generally which, in his words, was to redistribute power away from
p90, lines 1-12, David Cameron, ibid pp23-24, lines 20-15, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Afternoon-Hearing-11-June-2012.pdf 211 p25, lines 20-24, George Osborne, ibid
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unaccountable institutions and back to the people. Explaining his approach, and singling out Ofcom as an example, he said during the course of a major speech delivered on 9 July 2009:212 I have asked the Shadow Cabinet to review every independent public body that currently sits within their portfolio. For each one, they will be asking the key questions: Does this organisation need to exist? If its functions are necessary, which of them should be carried out in a directly accountable way within the department? And which, if any, should be carried out independently, at arms length from political influence? If there really is a need for an independent quango, how can we make sure it is as small as possible, operating with maximum efficiency, frugality and respect for taxpayers money? That process of review will go on up to and beyond the election. But today, I want to give you an idea of the scale of change we envisage by setting out what our approach would mean for three specific quangos. OFCOM is the regulator for the communications industry, and its clear that it has an important technical function. It monitors the plurality of media provision for consumers. It licenses the spectrum in the UK. And it sets the charges and the price caps for BTs control of so much of the industrys infrastructure. OFCOM also has an enforcement function ruling on breaches of the broadcasting code for instance. These matters relate to the operations of private companies in a commercial market and it is therefore right that they are free from political influence. But Jeremy Hunt has concluded that OFCOM currently has many other responsibilities that are matters of public policy, in areas that should be part of a national debate, for example the future of regional news or Channel 4. These should not be determined by an unaccountable bureaucracy, but by minsters [sic] accountable to Parliament. So with a Conservative Government, OFCOM as we know it will cease to exist. Its remit will be restricted to its narrow technical and enforcement roles. It will no longer play a role in making policy. And the policy-making functions it has today will be transferred back fully to the Department of Culture, Media and Sport. (emphasis added) 2.156 It is important to note from the speech that although Mr Cameron was proposing that Ofcom as we know it will cease to exist what he was referring to was the repatriation of policy functions back to a central Government department. There was no proposal to dilute Ofcoms technical regulatory functions which the speech expressly recognised should remain with Ofcom and at arms length from political influence. 2.157 Mr Cameron explained that the decision to use Ofcom as an example was simply a matter of his familiarity with it and had nothing to do with any external influence. He also pointed out that at the time Ofcom was the subject of criticism from diverse quarters:213 One of the reasons I picked Ofcom was because of my own experience from television of remembering what the Independent Television Commission had done, the ITC, the precursor of Ofcom, and also remembering the sort of levels of pay that there were in
pp38-39, para 113, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 213 pp92-93, lines 23-14, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Morning-Hearing-14-June-2012.pdf
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the ITC compared with Ofcom, and I did think Ofcom was quite a good example of a quango that had got too big, too expensive, and the pay levels were pretty excessive. I would just make the point Ill shut up in a second but at this time Ofcom was being actually roundly attacked on this basis by ITV, by the BBC, with which it had almost nothing to do, and also by commentators on the left of politics like Andrew Rawnsley, who were all saying Ofcom seems to have got too big and too bureaucratic. So this was an agenda that was very limited to my own views, not in any way proposed or dictated by others. 2.158 Mr Osborne confirmed that the Conservative Partys concerns about Ofcom were those which it had about quangos in general and did not relate to its media regulatory function:214 Q. [James Murdoch] was also agitating for the neutering, if not quite the dismantling of Ofcom. Did that chime at all with your policy? A. I never discussed with him Ofcom and I dont remember personally being involved in any great internal discussion within the Conservative Party about the future of Ofcom. There was a general concern that Ofcom had become, like many Quangos, rather bloated, but that was not a complaint about the function of Ofcom, just that like many parts of government, that there had not been a proper regard for cost. 2.159 In the result, Mr Cameron explained the impact of Coalition Government on Ofcom policy:215 Q. To take the story forward, as it were, is this right, that the reason this policy was not enacted was that in the pragmatic realities of the Coalition government it wasnt possible. A. Thats right. I wasnt involved in the detailed negotiation of the Coalition agreement, but some policies made it through, others didnt, and I suspect this is one that we didnt get agreement on, but we have taken action on pay levels in quangos and we have tried to restrict them.
The 2010 General Election campaign

2.160 The 2010 election campaign of course involved all of the contenders doing their utmost to get their competing political messages across using the media, including new media, and otherwise. Mr Cameron had won the much coveted support of News Internationals politically variable titles. He had secured the full throttled support of the centre right press and enjoyed the support of those other politically uncommitted media titles, the Economist and the Financial Times. But the endorsement of The Sun did not bring outright victory. 2.161 The political commentator Andrew Neil attributed the outcome to a number of factors: the declining political influence of The Sun; the lack of a long period of sustained press support for Mr Cameron before the election; the overshadowing of newspapers generally by television and, in particular, the introduction for the first time in the United Kingdom, of televised leaders debates during the campaign. Thought provokingly, he wrote:216
pp25-26, lines 25-11, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Afternoon-Hearing-11-June-2012.pdf 215 p94, lines 11-20, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 216 pp27-28, para 20, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-statement-of-AndrewNeil.pdf
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I have already referred (para 4) to the fact that, despite the overwhelming endorsement of what we still refer to as Fleet Street, Mr Cameron was unable to win an overall majority in 2010, even though the circumstances were widely regarded as propitious for the Tories. The Sun is a shadow of the political influence it enjoyed in the 1980s, peaking in the close-run election of 1992. In the 1997 and 2001 elections it largely piggy-backed on the Blair landslides: it needed to back Mr Blair to show it was in touch with its readers much more than Mr Blair needed its backing (though he did not realise that at the time since he was still obsessed with what had happened to Neil Kinnock). The Sun was following the crowd rather than telling it what to think. In 2005 the Sun was largely irrelevant because it took so long to make up its mind and by then had become half-hearted in its support of New Labour. In 2010 it backed Mr Cameron, though only in the autumn before a spring election, which did not give it time to get strongly behind him. Mr Camerons hopes of an overall majority faded the more the Sun cheer-led for him; he did not win. Like other newspapers the Sun was overshadowed by the leaders debates on prime-time TV and unfolding events on the news channels, replayed every night to much larger audiences on network news. The Guardian and other left-leaning papers backed the Liberal Democrats: they lost seats. Newspapers and their proprietors still have what many regard as an inordinate influence on our politics because politicians chose to confer it on them, despite increasing evidence it is not merited. Press proprietor-politician relationships will be transformed, many would say for the better, when the political elite realise that the emperors have no clothes, or are at most scantily clad. 2.162 Mr Osborne agreed that the support of The Sun, although important, was not, and probably had never been, determinative, saying:217 I think the endorsement of the Sun has been elevated to almost mythical status. It was just one of a whole range of things we felt we had to get right in the run up to a General Election, and ultimately, if we had not had the endorsement of the Sun I think we still would have gone on and done well in the General Election. 2.163 He further explained why he thought that the role played by support from the Economist and the Financial Times was significant: I remember also that it was significant we had the endorsement of the Financial Times and the Economist, both publications I think previously at various points had supported the Labour Party. They dont have mass readerships, but they bring a different kind of cachet. Before concluding:218 So I think in all this process, and I think maybe it stems back to the 1992 election and some of the mythology around that there is this feeling that the Sun endorsement is all you need to win a general election, and I would say it is far from that, and I certainly think you could win an election without the endorsement of the Sun.
p66, lines 2-9, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-11-June-2012.pdf 218 p66, lines 15-21, George Osborne, ibid
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3. Prime Minister Cameron: 2010-present

3.1 There has been a significant and inevitable diminution in Mr Camerons personal engagement with the media once in office. Comparison of the lists of meetings which he provided for the periods as Leader of the Opposition and as Prime Minister showed that the number of contacts halved from approximately 26 meetings or interviews per month to 13. There was a simple and compelling explanation for this change in the tempo of media engagement, as Mr Cameron explained:219 As I say, when I was elected, I did try to do less of this and try to have more of a distance, try to make sure because genuinely when youre in opposition, what are you doing? Youre campaigning, youre drawing up policies, youre trying to convince people. In government, it is and should be different. You should be spending your time governing, not talking about governing, so I did try to create some more distance, but as I explained earlier I think its very difficult because of these daily battles that you fight. 3.2 It is clear that Mr Cameron did very consciously change his approach to the press between Opposition and Government. He had some observations about the process:220 Yes. I think its right that in government youre making real decisions rather than just policy ideas and campaigns, so its more important that what you do is done properly. And thats why you have special advisers codes, ministerial codes and all the rest of it. But I do think there is when youre leader of the opposition, and I did the job for five years, its only in the last year you get the sort of Civil Service machine starting to talk to you about how youd translate your structure and your processes into Number 10 Downing Street, and I think there could be a strength in I dont believe in having a sort of official opposition office, as it were, but I think there could be a strength in having earlier discussions between the Cabinet Secretary or the Permanent Secretary at Number 10 with a new leader of the opposition, just to make them aware of some of the processes and practices that might assist them in the work that they do and avoiding any conflicts and the rest of it. 3.3 The latter is an interesting point. I can see that it might even have a potential to reduce the risk, which Mr Campbell felt had eventuated in 1997, of an opposition party carrying the media tactics of Opposition into Government. The same outcome, however, can also be approached (or assisted) by a more open and transparent approach to the press. I shall return to this issue when analysing possible ways forward. Asked whether media engagement in Government occupied time at the expense of policy formation, leadership and Government, Mr Cameron described how he sought to arrange his private office at No 10 Downing Street to reflect the extra distance from the media which he sought so as to be able to concentrate on Government:221 It shouldnt, but it can. I think the way Ive explained the 24-hour news agenda, when I arrived in Downing Street, I did think that the set-up was quite geared to 24hour news. It felt too much like a newsroom, and thats what the press department
p50, lines 15-24, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 220 pp51-52, lines 11-4, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 221 pp53-54, lines 17-1, David Cameron, ibid
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should be like, but you have to try and create a structure and a private office and a set of arrangements where you can think, take decisions, prepare for decisions properly, structure your day so youre not permanently in a sort of news warfare mode, if I can put it that way. 3.5 The risk which Mr Cameron was seeking to avoid, and which he graphically described in the quotation as news warfare mode, was of spending a disproportionate amount of time engaging with what is now a truly 24 hour, multi-media news cycle. It is the challenge which faces all current and future politicians. Establishing and maintaining both healthy boundaries and sufficient distance in this environment is not easy when what is published and broadcast can, at least over time, be so influential to a political partys fortunes. Mr Cameron accepted that he had not always been wholly successful in resisting the demands of the 24 hour news cycle. This was the exchange with Counsel to the Inquiry:222 Q. You refer to having a bit more distance. That depends, I suppose, on each party to the debate, as it were, having a sense of propriety as to what is right and where the boundaries are. Are we agreed about that? A. I think thats right, but distance is also about for the politician, and this relates to the issue of the 24-hour news cycle. There is a difficulty in Im not expecting sympathy for this, but theres a difficulty in politics that you are fighting a sort of permanent battle of issues being thrown at you hour by hour where responses are demanded incredibly quickly, and it can, if youre not careful, take up all your energy in dealing with that, and that is hopeless, because if thats what you spend your time doing, you will never reform our schools, cut our deficit, deal with our economic problems and all the rest of it. When I say distance, partly what I mean is that the politicians, and particularly prime ministers and Cabinet ministers, have to get out of the 24-hour news cycle, not try and fight every hourly battle, and focus on long-term issues and be prepared sometimes to take a hit on a story they dont respond to so quickly. Thats very easy to say that, but I did actually try on getting into Number 10 Downing Street to do that. Im not sure its always been totally successful, but thats part of what I mean by distance. It means not sitting under a 24-hour news television screen looking at the ticker and worrying about whats happening every hour. If you do that, you get completely buried by the daily news agenda. (emphasis added) 3.6 Focusing more specifically on newspapers, Mr Cameron explained how technological change has affected the content of printed news coverage, forcing it away from its historic model which focused on reporting the previous days news:223 I think a lot of evidence thats been put forward in the sessions youve had where people have talked about the growth of the 24-hour news culture, the fact that things move so fast that I think newspapers have been put in a difficult position, because the news has been made and reported long before they reach their deadlines and they publish their papers the next day, so I think newspapers have moved more towards trying to find impact, trying to find an angle on a story, rather than, as would have been the case before 24-hour news and all the rest of it, of just reporting what happened the day before.
222 223
pp12-14, lines 25-4, David Cameron, ibid pp6-7, lines 22-11, David Cameron, ibid
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So I think there has been a change, but I think thats quite a lot to do with technology and the development of the media rather than anything else. 3.7 From the politicians perspective he considered this development to have been certainly one which has brought challenges:224 I think from the politicians point of view, and particularly perhaps from the governments point of view, its sometimes a change for the worse, because if theres a big announcement, something we think is very important, that gets announced on the television, it gets picked over by the 24-hour news, and its quite understandable that the newspapers, by the time they come out the next day, have to find something different, and I completely understand why they want to do that, but from the perspective of trying to explain to the country why youre making difficult decisions, why youre reforming the health service in this way, why youre trying to cut the deficit in that way and get across more what it is you actually decided to do rather than an endless analysis of what the motives were or what the splits were or whatever, but politicians will always complain about this sort of thing, so I wouldnt put too much weight on it. 3.8 Mr Osborne explained how he and Mr Cameron had drawn lessons from New Labours media strategy in the early days of the New Labour Government and confirmed that there was less emphasis in Government on fighting for every headline than there had been in Opposition. He pointed out, though, that the proliferation of news sources has in any event now made such an endeavour impossible. He said:225 This is going to sound like talking my own book, but it also, I think, is genuinely the case. I think New Labour were very aggressive, when they became the government, in pursuing the media management techniques they had developed in opposition. And they had developed those techniques in opposition, to be fair to them, because of the way people like Neil Kinnock had been treated by all the press beforehand. Now, we learnt, in a way, from that. We were we came of political age myself, David Cameron and others during that political period, and we felt too that that government in its early years had been too obsessive about tomorrows headline and tried to control every aspect of the media. Thats not to say when we came into government, we didnt want to have a good and effective media operation, but we were more relaxed about fighting for every single headline or fighting for every news bulletin, and I think there is also partly an understanding on our behalf that in what has become, even over that period, a much more fragmented media, it is impossible to manage every single headline or fight for every headline. In the end, we had a belief that we came into government, we had to set out some difficult things we needed to do and we would trust ultimately to the judgment of the public but also trust to the judgment of the media, even if along the line you got some bad headlines. Certainly, I have been more relaxed as Chancellor of the Exchequer in that early period than I would have been as Shadow Chancellor about some the headlines weve had.
pp7-8, lines 14-7, David Cameron, ibid pp22-23, lines 5-11, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Afternoon-Hearing-11-June-2012.pdf
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3.9
That was not to say, however, that there had not still been a close relationship between the press and the Coalition Government under Mr Camerons leadership. Mr Osborne described calling editors and proprietors often:226 I often make calls to editors and proprietors after Major Treasury announcements and fiscal events which the diary records as a single block of time for calls to editors
3.10
Mr Cameron candidly accepted that political news management strategies had not always been unambiguously in the public interest, and not just those of other political parties. When asked whether he had seen evidence of attempts to control the news agenda by politicians in his own party through favouritism and anonymous briefings, he replied:227 Yes. These things do happen and its deeply regrettable. I think as long as theres been a press and politicians these things happen. But it is very regrettable, it often makes running a political party more difficult, running a government more difficult. Its deeply destructive. I think there are degrees of this. Of course, you know, some politicians have journalists they have a particular good relationship with, they think theyre going to understand a particular speech or a particular idea better than others, and in this world where the newspapers arent reporting yesterdays news, because thats already been reported, clearly newspapers are looking for something special, theyre looking for a particular angle or a particular story. So there are responsible ways of handling media relations in that way, but briefing against people, doing people down, there are some dreadful things that have been done in politics on both sides in recent years, and theyre very, very regrettable. (emphasis added)
3.11
As for a solution to the problem, Mr Cameron agreed that there was no single panacea, that a mixture of rules and culture were required and that political leaders themselves needed to put a halt to bad practice and a poor culture.228 A good start has already been made so far as transparency is concerned. On 15 July 2011, Mr Cameron was responsible for the amendment of the Ministerial Code requiring Ministers to disclose their meetings with media proprietors, editors and senior executives. The relevant addendum to the Code reads: The Government will be open about its links with the media. All meetings with newspaper and other proprietors, editors and senior executives will be published quarterly regardless of the purpose of the meeting.
3.12
I
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The current practice is that all Government departments compile the information required by the Ministerial Code set out above and give details of the month the meeting took place, the name of the individual and organisation meeting the Minister, and the purpose of the meeting. Each list is available for public inspection on the relevant departmental website (as part of a wider list of Ministers meetings with external organisations), as well as via links on
p2, para 2.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-GeorgeOsborne-MP.pdf 227 pp33-34, lines 18-12, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Morning-Hearing-14-June-2012.pdf 228 pp34-35, lines 23-8, David Cameron, ibid
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the No 10 website. In addition, hospitality received by Ministers is also declared and published on the respective websites.229 3.14 Mr Cameron has made public the fact of his Ministerial meetings with media proprietors, editors and senior executives since the 2010 General Election, regardless of the nature of the meeting.230 It has been an important step forward and transparency is an issue to which I shall return. Amendment of the Ministerial Code was undoubtedly a very important step towards affording the transparency that is going to be vital if public trust in the relationship between our national press and politicians is to be rebuilt. An important issue is whether it would be desirable to go further. On that question Mr Cameron thought that there was room for improvement. His view was:231 I think there are improvements we can make here. I think the idea that someone suggested of a sort of written note of every interaction with every editor, every broadcast I think that would be overly bureaucratic because most of the meetings are pretty similar. Youre explaining why youre in favour of free schools and academies and how to get that message across, and why the policys a good idea. Youre explaining something that youve already published. But where I think there is potential for improvement is in two areas. If its obvious that this is a meeting where the proprietor or the broadcasting business or what have you has got some, you know, commercial issues they want to raise, then I think it does make sense that a note is taken. Or, if in a meeting thats really about your policies and your approach and the rest of it, theres a discussion about commercial interests, then I think again in government, you know, under the Ministerial Code, I think its probably right that the minister or the politician should make a reference to that to the private secretary. 3.16 He also warned against an excessively bureaucratic approach which might easily become counter-productive:232 The problem with all this is the more rules and codes we create, the more difficult it is to make sure in every instance that people abide by them. I dont want to create a system that doesnt work, that is permanently broken. That would actually sap the faith of the public in this whole area. But I think some modest additions to the Ministerial Code to deal with the two points Ive made, I think that is something we could certainly look at. 3.17 I have no hesitation in endorsing the proposal that consideration should be given to enhancing the Ministerial Code so as to require a note to be taken at meetings with media proprietors, editors and senior executives at which their commercial interests are discussed and that should such an issue be raised in the course of a meeting with a different purpose, of which a note is not being taken, then that issue should be reported to the Ministers private secretary. Indeed, as I have said, I believe that it is appropriate to go further and I shall return
3.15
pp10-11, para 28, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 230 p10, para 26, David Cameron, ibid 231 pp39-40, lines 14-9, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 232 p41, lines 2-9, David Cameron, ibid
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to the concept of greater transparency when discussing the appropriate conclusions and recommendations to make. 3.18 A consequence of Mr Camerons contact with the media throughout his career, and in his private life, is that he has formed many friendships with people in the media. When compiling the lists of those media figures with whom he had had contact both as Leader of the Opposition and in Government, there are some whom he had met so often that it was impractical to list contacts individually. Instead he identified them:233 There is a small number of journalists who are close friends of mine and who I see so frequently that I have not included them systematically in these lists, namely Daniel Finkelstein, Alice Thomson and Sarah Vine from The Times, Xan Smiley and Christopher Lockwood from The Economist, and Robert Hardman from The Daily Mail. While my contacts are mainly social, they are also people with whom I discuss politics and particular projects, such as speeches. 3.19 The number of such friends demonstrates that Mrs Brooks was not alone amongst media figures with whom Mr Cameron socialised. Mr Smiley is a neighbour of Mr Camerons and Mr Finkelstein a former Conservative Party Parliamentary candidate, giving some indication of the diverse ways in which Mr Cameron has formed these media friendships. It is a convenient point at which to emphasise that there is absolutely nothing wrong with friendships between politicians and journalists and that they will inevitably be close contact between the two which result in friendships. That is not only perfectly normal, it is good. It is worth repeating: it is not friendship that is relevant to the Terms of Reference but, rather, the way in which what the politicians have described as overly close relationships can impact on policy and the needs of transparency to ensure that this becomes apparent.
Relations with Telegraph Media Group

3.20 Naturally, Mr Cameron continued to make efforts to retain the very strong links which he fostered with the Telegraph Media Group (TMG) in Opposition. He has met with a number of senior executives and editors on a number of occasions since the election.234 Aidan Barclays business interests are very much wider than TMG and so there are additional reasons why he is an important person for Mr Cameron to remain in contact with. There have been two faceto-face meetings since the election, in the period covered by disclosure to the Inquiry, which well illustrate how Mr Cameron has continued to engage in a mixture of formal and informal contact with senior media figures. On 6 July 2010 there was a meeting at No 10 Downing Street for general discussion followed by drinks.235 To put this meeting into context, it was one of a number of meetings with media proprietors and senior media executives which Mr Cameron had in the months immediately after he became Prime Minister.236 Mr Barclay was then given dinner on 18 November 2010 by Mr and Mrs Cameron, at which there was general discussion.237
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p26, para 79, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 234 David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-DC-1.pdf 235 p3, Aidan Barclay, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Appendix-D-to-WitnessStatement-of-Aidan-Barclay.pdf; p4, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/ Exhibit-DC-1.pdf 236 p70, para 206, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 237 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Appendix-D-to-Witness-Statement-of-AidanBarclay.pdf; p7, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-DC-1.pdf
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Rupert Murdoch pointed out that in contrast to Mr Barclay he had not been invited to dine at No 10 by Mr Cameron: Unlike Mr Barclay I dont get invited to dinner at 10 Downing Street.238 It is right that Mr Murdoch does not appear to have had quite the same access to the Prime Minister if Mr Barclay is used as a comparator, although that is but one of a number of comparisons that might be made. Media proprietors certainly do enjoy a good level of access generally to our political leaders. In addition to the face-to-face meetings, Mr Barclay and Mr Cameron have continued occasionally to communicate by SMS text message. Only two of Mr Barclays post-election texts disclosed to the Inquiry concerned a substantive issue and reflected Mr Barclays interest in the macro-economic situation. One of Mr Barclays texts read:239 David im sure your aware [sic] that the credit markets are not good and are likely to get worse as they all err on the side of caution faced with combination of more regulation Basle 3 more liquidity losses from sovereign debt the end of bank of England support and potential tax all at wrong time for economy given also government cuts I hope you dont mind me mentioning it regards Aidan.
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The other contained advice for Mr Cameron: Suggest therefor Bank of England announce extension to liquidity scheme allow Banks say 5yrs to implement Basle 3 and if you can scrap talk of Bank Tax other countries wont go along with it anyway Best Aidan240
3.24
Mr Cameron explained how this was one of a number of economic views which he had received and, coming from informed sources, they were useful. He said:241 Yes. I think this was the view of him, you know, not really as chairman of a newspaper group but as chairman of a big business heavily invested into the UK with lots of property and other businesses and this was his strong views about the financial situation and I think its perfectly legitimate. I get a lot of exposure to businesses views on these sorts of points, some by text, many more by the meetings I have, and that seems to me not a bad thing, as long as you can order them properly in your mind.
3.25
The contact was of a kind which is unexceptionable but the use of text messaging highlights just how, in the age of informal electronic communications, policy issues are easily discussed privately without the need for a face-to-face conversation. As already discussed, Mr Cameron has proposed that any contact relating to the commercial interests of a media company which occurs should be noted, if it is pre-planned, and reported to a Ministers private secretary if it occurs spontaneously. It is difficult to see any difference in principle if the same sort of communication takes place by text, email or telephone. I shall also return to this issue when discussing the way forward.242
p11, lines 16-18, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-25-April-2012.pdf 239 p8, Aidan Barclay, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-AB1B.pdf 240 p7, Aidan Barclay, ibid 241 p72, lines 15-24, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 242 Part I, Chapter 8
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Relations with News Corporation and News International

Rupert Murdoch 3.26 The first of four post-election meetings between Mr Cameron and Rupert Murdoch took place on 18 May 2010, shortly after Mr Cameron became Prime Minister. Mr Cameron explained how the meeting came about and gave his recollection of events which was as follows:243 The reason for Rupert Murdochs visit was that he was in London and in common with the reasons for my other meetings with newspaper proprietors and senior media executives, to set out the challenges that I and my Government saw the country facing and our broad approach to addressing them. I also wanted to thank him for his support. As far as I can recall, this meeting covered similar ground to my other meetings with newspaper proprietors and senior media executives at the time. (emphasis added) 3.27 Mr Murdoch recalled a short meeting at which he told Mr Cameron that his titles would be watching closely to ensure that campaign promises were kept:244 I do recall that, shortly after his election, Mr Cameron invited me in for tea at No.10 Downing Street, he thanked me for the support of our papers; I congratulated him and told him that I was sure our titles would watch carefully and report whether he kept all of his campaign promises. The meeting lasted at most 20 minutes... 3.28 He also recalled that Mr Coulson was present.245 Mr Coulson was certainly at No 10 when the meeting occurred. He recalled that: I met him when he arrived and took him to the Prime Ministers office. I didnt sit in on the meeting which I think lasted around 30 minutes. Afterwards I met him later in the corridor and we had a brief conversation.246 Commentators have observed that Mr Murdoch had been admitted to Number 10 otherwise than through the famous front door and speculated as to the reason for that, suggesting that there was a desire to keep the meeting low key. Mr Cameron said that he was not involved in the arrangements but explained that No 10 has a number of entrances which frequently are and have been used by visitors now and in the past by previous administrations.247 There is also a car park to the rear. Mr Murdochs evidence on the subject was somewhat equivocal, but a desire to avoid photographers appears to have played a part:248 Q. On that occasion and possibly other occasions you go in through the back door, is that right?
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p70, para 207, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 244 p27, para 110, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-KeithRupert-Murdoch2.pdf 245 p14, line 14, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-25-April-2012.pdf 246 p19, para 91, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-AndyCoulson.pdf 247 pp70-71, para 208, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 248 p13, lines 5-14, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcriptof-Afternoon-Hearing-25-April-2012.pdf; David Cameron, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/06/Exhibit-DC-1.pdf
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A. That yes. There are reasons for that. They always seem to dont want me to be photographed going out the front door or I dont want to be, but it also happens to be a shortcut to my apartment, so its quite okay. Q. All right. Why do you think A. And the car park [sic] is usually parked behind there, theres a car park behind 10 and 11 Downing Street. 3.30 3.31 Whatever the precise reason, the fact of the meeting was disclosed by Mr Cameron in his first quarterly release of general external meetings on 28 October 2010.249 The other three meetings included a dinner with Mayor Bloomberg, in New York, on 21 July 2010, the News Corp summer party on 16 June 2011, which is attended by a large number of politicians, amongst others, and the Times CEO summit dinner at which Mr Cameron was the keynote speaker.250 Of the dinner in New York, Mr Coulson said:251 The second post-election meeting with Rupert Murdoch was in New York on the day Mayor Bloomberg organised a party in honour of the Prime Minister. Before the party Rupert Murdoch met David Cameron for around half an hour. He and I met briefly when he arrived, but I did not sit in on the meeting. In the evening, before the dinner, I had a longer conversation with Rupert Murdoch and his wife Wendi at the drinks reception. From memory we mostly discussed American politics. 3.32 It is not surprising that Mr Murdoch and Mr Cameron have not met since July 2011 when the hacking scandal reached its apex. It is also right to observe that despite the election support afforded by News Internationals titles to Mr Cameron before the 2010 General Election, there has been noticeably critical coverage in News International and other titles dating from around the same time. James Murdoch 3.33 James Murdoch met the Prime Minister twice after the 2010 General Election. The first occasion was on 7 November 2010 when Mr Murdoch visited Chequers.252 The second occasion was a little over a month later, on 23 December 2010 at the home of Mr and Mrs Brooks.253 Both occasions took place whilst News Corps bid to acquire BskyB was current. The second was two days after the sudden and dramatic events which had led to responsibility for considering the bid being transferred from Dr Cable to Mr Hunt. Mr Murdoch recalled a dozen or fifteen people being present. He said the events of 21 December 2010 were briefly touched upon in conversation:254 there was no discussion with Mr Cameron other than as Ive detailed in my witness statement, which is simply he reiterated what he had said publicly, which is that the
p70, para 206, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 250 p4, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-27.pdf 251 p19, para 92, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-AndyCoulson.pdf 252 p7, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-DC-1.pdf; p2, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-JRJM-9.pdf 253 p8, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-DC-1.pdf; p2, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-JRJM-9.pdf 254 pp68-69, lines 23-5, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcriptof-Morning-Hearing-24-April-2012.pdf
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behaviour had been unacceptable, and I imagine I expressed a hope that things would be dealt with in a way that was appropriate and judicial. 3.34 Mr Camerons recollection was to the same effect. Having reminded the Inquiry that he had completely recused himself from the substantive decision about the bid, which is a fundamental consideration, he said:255 Well, the gist was, as I explained, what Vince Cable had said, albeit privately but made publicly, was very embarrassing for the government, and I wanted to make clear, I think appropriately, that this shouldnt have happened, that it was wrong, and that this issue would now be dealt with entirely properly, and I thought that was quite an important point to make. 3.35 The comment was perfectly in order. However, the fact that there was mention of the bid at a private function and that it had not previously been made public caused speculation when it emerged. Mr Cameron explained why Downing Street repeatedly declined to confirm the fact of the supper on 23 December 2010:256 I think what would have happened here is that before we became totally transparent about all these meetings, if Downing Street press office was asked about any social engagement or private engagement they wouldnt normally answer those questions, and I think thats what happened on this occasion. So they said, We dont comment on the Prime Ministers private or social engagements. I think the issue was pressed and in the end, I cant remember if it was me or someone else, suggested, Come on, theres nothing to hide here, just answer the question, but were now in a different world where all these sorts of meetings would be declared in the normal way, but at that stage we werent routinely giving out private and social engagements. (emphasis added) 3.36 The encounter illustrates why transparency is needed and also why it would be prudent to enhance the current system of disclosure: once more, I shall return to this issue later. Rebekah Brooks 3.37 After the 2010 General Election Mr Cameron and Mrs Brooks continued to have a significant amount of both formal and informal contact. Politicians, like everyone else, are free to choose their friends, and to be friends with whomsoever they please. What is of interest to the Inquiry, and what has been investigated, is whether the contact has brought with it any pressure or influence on the Coalition Governments policies. Mr Cameron had dinner with the Brooks on 22 May 2010.257 Mrs Brooks visited Chequers on three occasions: 13 June 2010, 13 August 2010 and 9 October 2010258. The last of these visits
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pp24-25, lines 25-6, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-14-June-2012.pdf 256 pp25-26, lines 13-1, David Cameron, ibid 257 p3, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-RMB-11.pdf 258 pp4, 6-7, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-DC-1.pdf; p3, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-RMB-11.pdf
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was to celebrate the Prime Ministers birthday.259 Shortly before that, on 4 October 2010, she had met Mr Cameron at the Conservative Party Conference.260 3.39 Mrs Brooks hosted the dinner party on 23 December 2010, discussed above, at which there was mention between James Murdoch and Mr Cameron of News Corps bid to acquire BSkyB.261 On 26 December 2010 both Mr Cameron and Mrs Brooks were at a party hosted by Mrs Brooks sister in law, although both Mr Cameron and Mrs Brooks recalled little contact on that occasion. Asked whether there was discussion of the BSkyB bid, Mr Cameron replied:262 No, I dont think there was. My memory is that Boxing Day was actually Charlie Brooks sisters house, there was a party, I think Rebekah was there briefly. I dont think there was certainly I dont think there was a conversation about BSkyB. Im not even sure there was much of a conversation at all, but thats my recollection. 3.40 Mrs Brooks was similarly unsure whether there had been any conversation at all and was sure that the BskyB bid had not been mentioned:263 A. Yes, no, its Ive been asked about it before. Mr Cameron attended a Boxing Day mulled wine, mince pie party at my sister-in-laws, and I popped in on my way to another dinner and I actually dont have any memory, because I dont think I did even speak to him or Samantha that night, but my sister-in-law tells me they were definitely there for the party, so I would have seen them, but not even to have a proper conversation. Q. So as to the scope of any conversation, which you say wasnt a proper conversation, are you sure it would not have covered the BskyB issue? A. Boxing Day. A. Definitely. Absolutely not. I mean, I dont think there was a conversation. 3.41 Other Cabinet Ministers also maintained the connection with News International generally and Mrs Brooks in particular. The most frequent such contact was with Mr Osborne who had six meetings with Mrs Brooks after the election, two of which were at Dorneywood.264 Turning to specific issues, the Inquiry explored with both the Home Secretary, the Rt Hon Theresa May MP, and the Prime Minister what role Mrs Brooks and The Sun had played in the decision for the Metropolitan Police to review the case of the disappearance of Madeleine McCann. The review had the benefit of extra financial support from the Home Office and was a subject of interest to a number of newspapers and their readers. The object of the review was to establish whether there were any other avenues of inquiry that should be pursued.265
3.42
p87, lines 1-19, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-11-May-2012.pdf 260 p6, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-DC-1.pdf 261 p8, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-DC-1.pdf; p4, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-RMB-11.pdf 262 p26, lines 7-13, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-14-June-2012.pdf 263 pp88-89, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-11-May-2012.pdf 264 p12, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-RMB-11.pdf 265 p97, lines 16-22, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-29-May-2012.pdf
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On 11 May 2011, Mrs Brooks saw two of Mr Camerons SpAds about the review. Both she and Mr Mohan also spoke to the Home Secretary about it by telephone. Mrs May was able to explain that the decision to have the Metropolitan Police review the case was, in fact, not one which had been made suddenly:266 No, a review was not ordered was not requested or required at short notice. The Home Office had been discussing first started discussing with ACPO the possibility of a Police Review or further police work on this they first started discussing with ACPO under the previous government. So the discussion had been taking place for some time it took place with ACPO initially for ACPO to identify which police force would be appropriate to undertake the is work, if it was to be undertaken, and at the same time there were discussions taking place with the Portuguese authorities, because of course, no UK police force can go into another country and start investigating; they can only do so with the agreement, approval and assistance of the resident authorities in that country.
3.44
She was clear that she had not been threatened with adverse coverage if she did not support the review by either Mrs Brooks or Mr Mohan. On the contrary, she had called them to tell them about developments: I think it was a call at my instigation. The exchange with Counsel to the Inquiry was as follows:267 Q. Did Mrs Brooks say anything about words to this effect: that unless you ordered the review, you would be on the front page of the Sun until that happened? A. No. Neither Mrs Brooks or Mr Mohan made any indication of that sort to me. The nature of the telephone conversation was to alert them to the fact that the government was taking some action, that there was going to be this further work by the police here in the UK and to put forward the point that it was very important that the UK authorities were able to work with the Portuguese authorities.
3.45
The Home Secretary did not feel that she had been pressured behind the scenes on the issue to take a position she would not otherwise have taken. Rather, she said:268 I felt that the work that we were doing to look at this review had been going on for some time, it was coming to a fruition around this time anyway, and obviously the issue was a matter of public concern.
3.46
The Prime Minister similarly had not felt pressured by Mrs Brooks, whether directly or indirectly, to support and finance the review: Pressure? No I wasnt aware of any pressure.269 He had checked and confirmed that the additional central government funding that was to be provided to the Metropolitan Police was being properly deployed. When asked whether Mrs Brooks visit to his SpAds had been reported to him, he said:270 I dont recall. It might well have been. I dont recall the exact conversations. I do recall, because I can see what might lie behind the question, which is: are you treating different investigations and campaigns fairly? And I do remember actually, as Prime Minister, consulting the Permanent Secretary at Number 10 about the step that the
p98, lines 1-15, Theresa May, ibid pp98-99, lines 22-7, Theresa May, ibid 268 p99, lines 13-16, Theresa May, ibid 269 p86, line 6, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf 270 pp85-86, lines 11-2, David Cameron, ibid
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police were about to take, backed by the government, which was to provide some extra funding for the investigation, and it was drawn to my attention that there is a special Home Office procedure for helping with particularly complex and expensive investigations thats been used in various cases, and it was going to be used in this case and he was satisfied that that was that had been dealt with properly and effectively. So its an example, if you lie, of the importance of making sure these things are done properly and I believe it was. 3.47 When it came to the influence of newspaper campaigning on the issue, Mr Cameron had rightly taken care to ask himself whether he was being confronted with self-interested media pressure or genuine public pressure:271 Well, I mean clearly this was a very high-profile case, and a case that a number of newspapers wanted to champion because their readers wanted to champion it, and obviously as government you have to think: are we helping with this because theres media pressure or is it genuine public pressure, is there a genuine case, are we treating this fairly? And I did ask those questions of the Permanent Secretary at Number 10, and so I think we made an appropriate response. But I dont remember any sort of specific pressure being put on me (emphasis added). 3.48 Mr Cameron and Mrs Brooks did discuss the phone hacking story. Mrs Brooks recalled that in the period after the Guardians July 2009 story, they spoke about it in general terms on occasion and once more specifically in late 2010 when there was an increase in the number of civil claims alleging phone hacking and seeking compensation. About the general conversations, Mrs Brooks said:272 I think on occasion you know, not very often, so maybe once or twice, because of the news and because, you know, the phone hacking story was a sort of a constant, or it kept coming up. We would bring it up, but in the most general terms. Maybe in 2010, we had a more specific conversation about it, which I think is yeah, thats about right. 3.49 On the occasion of the more specific conversation, she could recall only in general terms what Mr Cameron had asked:273 I think he asked me I think it had been in the news that day I think it was about the civil cases. Maybe a new civil case had come out, and he asked me about it and I responded accordingly. 3.50 As for what she had told Mr Cameron, she said:274 It was a couple of years ago. It was a general discussion about I think he asked me what the update was. I think it had been on the news that day, and I think I explained the story behind the news. No secret information, no privileged information; just a general update. Im sorry, I cant remember the date, but I just dont have my records.
p86, lines 9-20, David Cameron, ibid pp78-79, lines 22-3, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcriptof-Morning-Hearing-11-May-2012.pdf 273 p80, lines 22-25, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-11-May-2012.pdf 274 p80, lines 10-16, Rebekah Brooks, ibid
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Mr Cameron had little recollection of the conversation but did not deny asking questions about the subject:275 I dont really remember the specifics. I saw in her evidence that this was perhaps something to do with me asking a question about some of these civil cases and what was happening. I suspect it could have been that. This was an issue that was obviously being discussed. It was a controversial issue with all the civil cases and the rest of it, and I expect I could have asked some questions about that, but I dont recall the specifics.
3.52
From these imperfect recollections, it can be seen that the Prime Minister was paying attention to the emerging story, recognising its sensitivity, but does not appear to have focused on any detail. The indications are that he was provided with only general and publicly available information. When, on 15 July 2011, after the story had reached its height, Mrs Brooks resigned from her position as Chief Executive Officer of News International, she recalled receiving a message of support from Mr Cameron, albeit indirectly. The exchange with Counsel to the Inquiry on the subject was this:276 Q. It has been reported in relation to Mr Cameron but who knows whether its true that you received a message along the lines of: Keep your head up. Is that true or not? A. From? Q. From Mr Cameron, indirectly. Youll have seen that in the Times. A. Yes, I did see it in the Times. Along those lines. It was more I dont think they were the exact words but along those lines. Q. Is the gist right, at least? A. Yes, I would say so. But it was indirect. It wasnt a direct text message. Q. Did you also receive a message from him via an intermediary along these lines: Sorry I could not have been as loyal to you as I have been, but Ed Miliband had me on the run. Or words to that effect? A. Similar, but again, very indirectly. Q. So, broadly speaking, that message was transmitted to you, was it? A. Yes.
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It was but one of a number of messages of support or commiseration which she received from politicians, those working in their offices and others. The messages from politicians were all indirect and predominantly from Conservative rather than Labour politicians.277 This may have been more a reflection of News Internationals support for the Conservatives and a legacy of the companys sudden move away from Labour in 2009 than anything else.
p10, lines 1-8, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-14-June-2012.pdf 276 pp7-8, lines 6-2, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-11-May-2012.pdf 277 pp6-7, lines 2-24, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-11-May-2012.pdf
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As is well known, Mrs Brooks is currently facing criminal charges in connection with allegations of wrongdoing at the NoTW, including in relation to phone hacking, perverting the course of justice and conspiracy to commit misconduct in public office. As is equally well known, she vehemently denies wrongdoing and has declared her intention of mounting a vigorous defence to all charges.
Andy Coulson and the unfolding phone hacking scandal

3.56 Liberal Democrats had been highly critical of the appointment by Mr Cameron of Mr Coulson. It is therefore unsurprising that the question whether he should be appointed to the position Director of Government Communications was raised with Mr Cameron by the Deputy Prime Minister, the Rt Hon Nick Clegg MP, in the early days of the coalition. Mr Clegg recalled asking whether it was the right thing to do although he stressed that neither he, nor Mr Cameron, knew then what is known now. He said:278 A. Yes. That is my recollection. The background to it is that we, the Liberal Democrats, my colleague, for instance, Chris Huhne, had been very outspoken in our criticisms of Andy Coulson when he was appointed to work for the Conservative Party in opposition. Its self-evidently an issue. This was an individual who we had been highly critical of and had been critical of his appointment before the election, so, you know, it would have been very odd for us not to seek to straighten out our views now that we were suddenly and unexpectedly thrown together in government, as with so many issues. I genuinely cannot remember the precise wording, but, you know, I said to the Prime Minister, I asked him, Is this the right thing to do, given the controversy around Andy Coulson? given obviously the Prime Minister was aware of my partys views on it. The Prime Minister explained the reasons that hes given publicly why he felt that hed been satisfied with the responses that hed received from Andy Coulson and he felt, as hes put it, that he deserves a second chance. Of course, a lot of the information and allegations we now know were not known to me or indeed the Prime Minister then. Its quite important to remember that this conversation would have been quite different we know now or think we know now that we didnt know then. And also it is important to remember that in a coalition, the Prime Minister has a right to make choices about who he appoints to his team which I cant and wouldnt ever seek to veto, in the same way that I am free to make appointments to my team which he cant veto. It was not a conversation which was based on the premise that somehow, you know, I would say, You cant do that, its just that wasnt the understanding of it. 3.57 Mr Clegg was not the only person to raise the issue with Mr Cameron. The Prime Minister described a handful of people having done so, including from within the Conservative Party:279 Q. Okay. Were similar concerns expressed to you directly by anybody else, to the best of your recollection?
pp95-96, lines 10-20, Nick Clegg, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-13-June-2012.pdf 279 p3, lines 3-21, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-14-June-2012.pdf
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A. There were you know, some people did have concerns. I cant remember exactly who and when, but as I said, this was a controversial appointment. Ive read in some of these books about a number of people who have made these points, but I dont recall many specifics, but clearly some people did have concerns, yes. Q. And were they concerns expressed from within your own party? A. I think there might have been one or two, I think there might have been a specific MP, I think Andrew Tyrie. Thats not something I recall directly but something that has been pointed out to me, but he may have expressed concerns to me, but ... Q. In terms of quantity, approximately how many people fall into this group of expressing concerns to you? A. I couldnt put a number on it, but not you know, a handful of people, I think it would be. 3.58 Lord Ashdown cautioned Ed Llewellyn, whom he knew well, to the effect that the appointment was a decision which the Prime Minister might well come to regret; but he did not have any new specific information about him. Mr Llewellyn saw no need to pass on Lord Ashdowns opinion (for an opinion is all that it was) to Mr Cameron at the time, although he did so in the summer of 2011 when the hacking scandal peaked. The point was not new and Mr Llewellyn must have been well aware that Mr Cameron fully understood the position and his decision was perfectly reasonable.280 Contrary to some assertions that concerns were raised by a wide range of different people, Lord ODonnell did not receive any complaints about Mr Coulson as he made clear in his evidence:281 Neither the Deputy Prime Minister nor the royal household raised any concerns with me or officials either before or during Mr Coulsons period of employment as a special adviser. I have to admit to being somewhat surprised to be asked about Buckingham Palace when they have already clearly said on no occasion did any officials from Buckingham Palace raise concerns to Downing Street and indeed it is outrageous to suggest this. Neither were any concerns raised with my by the Prime Minister or any other special advisers about Mr Coulsons conduct in previous employment. 3.60 The question of Mr Coulsons security clearance in Government is an issue which aroused much public comment. When recruited by the Conservative Party, Mr Coulson was the subject of a standard background check by a commercial organisation, Control Risks: this relies on publicly available information.282 In Government he was vetted to a level known as SC, Security Clearance. He was not vetted to a higher level known as DV, Developed Vetting, although he was in the course of the lengthy process of being assessed for this level of clearance at the time of his resignation.283
3.59
p78, para 236, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 281 p66, lines 9-19, Lord ODonnell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-14-May-2012.pdf 282 p79, para 240, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 283 p19, Question 30, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-LordODonnell.pdf
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3.61
The level of security clearance was not the decision of either Mr Cameron or Mr Coulson but the Civil Service.284 SC is appropriate for long term, frequent access to secret material, or occasional/controlled access to top secret material. DV vetting is exceptional, conducted only where there is a business need and is required solely for those who have long-term, frequent/uncontrolled access to top secret material.285 Lord ODonnell made clear that it was not uncommon for people in Mr Coulsons position to start work without DV clearance but then come to require it. So far as Mr Coulson was concerned, he explained that a need for more frequent access to top secret material than SC clearance permitted had became apparent as a result of issues and stories concerning terrorism. He put it this way:286 It quite often turned out that they would start off with that view or, in this case, the Number 10 permanent secretary would have that view and then, as events changed, they would realise the first big terrorist event came along and then there would be a lot of papers which, by their nature, were all top secret, and then you would say, Actually, this isnt working, we need to give access to this, or: It would have been better if that person had access to these papers routinely, therefore weve decided .... And this is what happened with Mr Coulson: we decided in the light of the terrorist incident, the airline bomb plot, that actually it made for sense for him to be DVd so we could give him regular access to these papers. Up to then, it hadnt been an issue because I dont think hed been that interested in those aspects of work which would have required them to have top secret access.
3.62
Information concerning the recent Directors of Communication and Prime Ministers Official Spokesmen showed that, of six post holders, three had DV clearance when they took up their posts, two had it granted within around three months and the other just over seven months after taking up his post.287 In any event, the process of considering Mr Coulson for DV status would not have involved a detailed investigation of phone hacking at the NoTW; rather it is directed at whether he was at risk of blackmail. Lord ODonnell said:288 I think some people have different understandings of what DVing would reveal. It wouldnt have gone into enormous detail about phone hacking, for example. LORD JUSTICE LEVESON: No. Its concerned with whether youre likely to be a risk. A. Whether youre blackmailable, basically, yes, absolutely, and in terms of your financial position or your personal life.
3.63
3.64
Upon his appointment as Director of Government Communications, Mr Coulson was required to declare any conflicts of interest. He still owned some shares in News Corp at that time. Their gross value by the time he gave evidence was around 40,000.289 Lord ODonnell confirmed
pp5-6, lines 8-3, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-14-June-2012.pdf 285 Letter, Lord ODonnell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Addendum-to-evidence-ofLord-ODonnell-Letter-from-Cabinet-Office-on-vetting-of-officials.pdf 286 p68, lines 7-24, Lord ODonnell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-14-May-2012.pdf 287 Letter, Lord ODonnell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Addendum-to-evidence-ofLord-ODonnell-Letter-from-Cabinet-Office-on-vetting-of-officials.pdf 288 p70, lines 11-18, Lord ODonnell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-14-May-2012.pdf 289 p54, lines 13-16, Andy Coulson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-10-May-2012.pdf
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that these should have been declared but were not.290 Mr Coulson, realistically, did not seek to excuse his failure to do so. He first raised the point in his witness statement:291 Whilst I didnt consider my holding of this stock to represent any kind of conflict of interest, in retrospect I wish I had paid more attention to it. I was never asked about any share or stock holdings and because I knew that I wasnt involved in any commercial issues, including the BskyB bid, it never occurred to me that there could be a conflict of interest. Later, he said in evidence:292 This is by way of explanation, not excuse. My job in opposition was a busy one. My job in government was busier still, and I didnt take the time to pay close attention to my own circumstances in this regard, and I should have done. 3.65 Significantly for the purposes of the Inquiry, Mr Coulson did not discuss the existence of his shareholding in News Corp with anybody in the Conservative Party or in the Coalition Government. There is no evidence that anyone else knew about it therefore, or ought to have asked about it.293 Questions as to the wisdom of the appointment of Mr Coulson did not go away. When the New York Times published the article of 1 September 2010 which, amongst other things, directly accused Mr Coulson of encouraging or knowledge of phone hacking, Mr Coulson issued an immediate denial.294 Mr Cameron was made aware of the article but was prepared to rely on Mr Camerons denial:295 I dont recall exactly the conversations that took place. It was on the day I moved into Number 10 Downing Street after the birth of our daughter, so thats the memory I have from that day rather than anything around this, but Im absolutely clear he made an outright denial and that was that. 3.67 In the same month DAC John Yates reacted by offering to brief the Prime Minister on the response of the Metropolitan Police Service to the article in the New York Times. The offer was declined by Mr Llewellyn who made the Prime Minister aware of the approach.296 Mr Cameron explained why Mr Llewellyn was right to decline the briefing, a decision which he said DAC Yates has since accepted was proper and understandable:297 Q. But so we understand it, why was it not appropriate?
3.66
A. Well, I think because there was the potential of an investigation following this allegation in the New York Times article, I think in terms of just the perception that
p72, lines 7-10, Lord ODonnell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-14-May-2012.pdf 291 p11, para 46, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-AndyCoulson.pdf 292 pp54-55, lines 22-1, Andy Coulson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-10-May-2012.pdf 293 p55, para 2-7, Andy Coulson, ibid 294 http://www.nytimes.com/2010/09/05/magazine/05hacking-t.html?pagewanted=all 295 p7, lines 10-15, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-14-June-2012.pdf; note that although the transcript at p6 refers to an article dated 1 December 2010, the article was in fact dated 1 September 2010, see the footnote above for a link to the article 296 p7, lines 21-24, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-14-June-2012.pdf 297 pp8-9, lines 3-1, David Cameron, ibid
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there would have been if I was offered a special briefing by the Metropolitan Police, I think that would be inappropriate. Im sure the Metropolitan Police wouldnt have done anything inappropriate, but it would have given the appearance of at least being inappropriate, and so Ed Llewellyn declined the request. John Yates said, and I think the words are that that was understandable and sensible, I think he said, and Gus ODonnell, the Cabinet Secretary, looked into this and hes judged that Ed Llewellyn responded absolutely correctly to this. Q. Did you have any further conversations with Mr Coulson before his A. I think, sorry, John Yates said: The offer was properly and understandably rejected. These are the words that he used. So I think he understood that while it can be appropriate to brief ministers on operational issues, it wouldnt have been on this occasion. Sorry. 3.68 On 24 February 2010, before the election, the Guardian published an article alleging that, while Mr Coulson was the editor, the NoTW had employed a freelance private investigator even though he had been accused of corrupting police officers and had just been released from a seven-year prison sentence for blackmail.298 Although the article did not name the investigator concerned, for legal reasons, it was a reference to Jonathan Rees who was then the subject of further criminal proceedings. Ian Katz discussed the issue first with Steve Hilton in February 2010 and then with Mr Llewellyn in October 2010. The information was not passed to Mr Cameron. He explained why to the House of Commons on 13 July 2011, evidence which he repeated to the Inquiry:299 First, this information was not passed on to me, but let me be clear that this was not some secret stash of information; almost all of it was published in The Guardian in February 2010, at the same time my office was approached. It contained no allegations directly linking Andy Coulson to illegal behaviour and it did not shed any further light on the issue of phone hacking, so it was not drawn to my attention by my office. 3.69 The editor of the Guardian did not raise the issue with Mr Cameron at meetings both in the month after the article was published and the following year.300 Mr Cameron first became aware that Jonathan Rees had been employed by the NoTW on Mr Coulsons watch when the Guardian published a further more explicit story on 12 March 2011, seven weeks after Mr Coulsons resignation.301 In those circumstances there can be no criticism of Mr Cameron for not raising the issue with Mr Coulson or taking action arising from it. Matters eventually got to a point where, on 21 January 2011, Mr Coulson resigned. From his perspective, Mr Cameron described what happened:302
3.70
http://www.guardian.co.uk/media/2010/feb/24/andy-coulson-news-of-the-world p84, para 261, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 300 p84, para 260, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 301 p83, para 259, David Cameron, ibid 302 p9, lines 4-21, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-14-June-2012.pdf
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I had a number of conversations with him about his impending resignation and what followed from the New York Times article, which I know youve looked at, is the police then had an initial look to see if they should investigate again and said they shouldnt, then they had another look and again concluded that they shouldnt, and then the Crown Prosecution Service on 10 December said they werent going to take it any further. So again, these werent just assurances accepted by me, as it were, there were others that took this view. Then, really, this was the start of the process whereby Andy Coulson was becoming clear that, as he put it, when the spokesman needs a spokesman, its time to move on. He was finding his job was impossible to do because of all these stories and the rest of it, and obviously I had a number of discussions with him about his departure. 3.71 During the eight months in which Mr Coulson was the Director of Government Communications, he had very regular contact with the Prime Minister. His evidence gave a good insight into Mr Camerons media operation. There were usually two meetings each day at which he would see the Prime Minister, one in the morning between 08:30 and 09:00hrs and the other in the afternoon at 16:00hrs. Mr Coulson provided a brief media summary as part of the morning meeting. The afternoon meeting involved an update and a look ahead. Mr Coulson corroborated the Prime Ministers evidence that Mr Cameron made a conscious decision to reduce his personal contact with the media after becoming Prime Minister so that he could concentrate on Government. Cabinet Ministers, Mr Coulson stated, were encouraged to do more. He described the approach as follows:303 One of the biggest changes of approach from opposition to government with regard to communication and the media was the decision to reduce the amount of appearances by the PM. Cabinet members were encouraged to do more. We felt that Gordon Browns habit of providing an almost constant commentary of interviews was the wrong approach and that David Cameron would aim to be less obsessed by day to day media demands. This had the benefit of creating more time for the real work of Government. It also created the impression and more important a reality, of a calmer, more professional Government. This was demonstrated by the fact that on arrival in No10, David Cameron also opted to swap Gordon Browns private office, which resembled a newspaper newsroom complete with giant plasma screens showing 24 hour news channels, for the smaller office next to the Cabinet Room. 3.72 In Government Mr Coulson continued his policy of meeting media proprietors, executives and seeking to cultivate and maintain a wide and deep range of contacts. This included contact with former News International colleagues, both formal and informal in nature. He stayed at Dorneywood with Mr and Mrs Osborne, and with Mr and Mrs Brooks, in 2010. Having worked together, Mr Coulson and Mr Osborne had become friends.304 Mr Coulson later spent the night at the Brooks with his family on 31 December 2010 to see in the New Year. 305 He moved
p15, para 68, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-AndyCoulson.pdf 304 p69, lines 7-10, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-11-June-2012.pdf; p6, para 7.8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/ Witness-Statement-of-George-Osborne-MP.pdf 305 p18, para 86, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-AndyCoulson.pdf
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in a similar circle of politicians and media executives as Mr Cameron although he denied advising Mr Cameron to get as close as he could to Mrs Brooks.306 3.73 Mr Coulsons role on the first occasion that Rupert Murdoch met Mr Cameron after the election has already been described but he was also at the second, in New York; a dinner for the Prime Minister hosted by the Mayor of New York. He also met with Les Hinton and a number of News International editors as well as a wide range of other media contacts.307 Mr Cameron and Mr Osborne were unanimous that whilst working for the Conservative Party and later for the Coalition Government, Mr Coulson had discharged his duties professionally.308 Mr Cameron said of Mr Coulsons performance:309 I just make one other point, which is because I recognise this is a controversial appointment, this has come back to haunt both him and me and Ive said what Ive said about 20/20 hindsight, but in doing the job as Director of Communications for the Conservative Party, and then Director of Communications in Downing Street, he did the job very effectively. There werent any complaints about how he conducted himself. He ran a very effective team. He behaved in a very proper way. Of course, if that wasnt the case, then I think people would have an even stronger argument of saying, Well, you took a risk, you employed this person and look whats happened. He did his job very well, and I think that is an important point to make. 3.75 Mr Osborne, like Mr Cameron, has expressed regret at the appointment with hindsight. He stated:310 I said on 25th July 2011 that knowing what we know now, we regret the decision and I suspect that Andy Coulson would not have taken the job knowing what he knows now. But we did not have 20/20 hindsight when we made that decision. I hold this view because of the evidence that has since come to light about what happened at the News of the World that had not been uncovered by the original police investigation. I did not speak to Mr Coulson before making this statement, or since, so I was surmising what his view might be.
3.74
The decision to hold a public inquiry

3.76 2011 brought no abatement in concern about phone hacking. On 26 January 2011 the Metropolitan Police Service launched Operation Weeting, following the provision of significant new information to them by News International, which effectively reopened its inquiries into voicemail interception.311 The first of many arrests in connection with the
p49, lines 12-14, Andy Coulson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-10-May-2012.pdf 307 p19, para 94, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-AndyCoulson.pdf 308 p7, para 9.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-GeorgeOsborne-MP.pdf ; see also p57, lines 2-9, George Osborne, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/06/Transcript-of-Afternoon-Hearing-11-June-2012.pdf 309 pp109-110, lines 16-4, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Morning-Hearing-14-June-2012.pdf 310 p7, para 9.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-GeorgeOsborne-MP.pdf 311 p4, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DAC-SueAkers.pdf
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investigation occurred in April 2011. The scope of police inquiries widened on 20 June 2011 when Operation Elveden commenced.312 It set out to investigate allegations that police officers had been receiving payment for confidential information from NoTW reporters. 3.77 The tide of civil litigation against News Group News Ltd continued to rise, prompting significant public admissions and apologies in April 2011 to a number of public figures. Mr Miliband first called for an independent inquiry in April 2011.313 On 12 May 2011, in open court, NGN admitted liability to wide ranging allegations in the civil proceedings brought by Sienna Miller.314 Matters came to a head in July 2011 when a full blown media storm erupted. It began on 4 July 2011 with the publication by the Guardian under the Headline: Missing Milly Dowlers voicemail was hacked by News of World written by Nick Davies and his colleague Amelia Hill.315 News that the NoTW had intercepted Milly Dowlers voicemail caused immediate and profound public outrage. Mr Clegg put it this way:316 A strong, free, diverse press is the lifeblood of a democratic society. Yet the evidence of widespread phone hacking at The News of the World, culminating in the revelation that Milly Dowlers phone had been hacked, led to widespread and justified public revulsion. In a very vivid way, illegal newsroom practices were shown to have impacted on the lives of ordinary people in the most distressing of circumstances. 3.79 Events continued to move quickly after that. On 7 July 2011 James Murdoch announced the closure of the NoTW which was being abandoned by advertisers. On 8 July 2011, Mr Cameron announced that there would be a judge-led inquiry to investigate phone hacking at the NoTW and a second inquiry to look at the ethics and culture of the press. He described the moment as carthartic for both the press and politicians, a term to which he returned in his evidence:317 Were here because of the truly dreadful things that happened not to politicians but to ordinary members of the public whose lives had been turned upside down when theyve already suffered through losing their children, and had their lives turned upside down in a totally unacceptable way and this is, I think, a cathartic moment where press, politicians, police, all the relationships that havent been right, we have a chance to reset them and that is what we must do. 3.80 On the same day Mr Coulson, Clive Goodman and one other were arrested. The Guardian published the fact that it had discussed the NoTWs links with Jonathan Rees with Mr Camerons aides. On 9 July 2011, DAC Yates expressed his extreme regret at not reopening Operation Caryatid. The last edition of the NoTW was published on 10 July 2011. On 11 July 2011 Mr Hunt announced the referral of the BSkyB bid to the Competition Commission,
3.78
I
312
p1, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statement-of-DACSue-Akers1.pdf 313 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Ed-Miliband.pdf 314 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Exhibit-9-to-Mark-Thomson.pdf 315 The article contains an inaccuracy, for which the Guardian has subsequently apologised, in that it is unlikely that the News of the World caused the false hope moment described by Mrs Dowler in her evidence. However, the article was correct in its assertion that Milly Dowlers voicemail was intercepted by the News of the World. 316 p1, para 2, Nick Clegg, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-ofNick-Clegg-MP2.pdf 317 p31, lines 9-18, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-14-June-2012.pdf
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following the withdrawal of the UIL by News Corp.318 The cumulative effect of these events aroused very great public concern. There was also considerable concern about who else had been the victim of phone hacking and other unethical practices by journalists, or those working at their instructions. 3.81 On 13 July 2011 Mr Cameron, after discussions with both Ed Miliband and Nick Clegg, announced this Inquiry to Parliament.319 The terms of reference were agreed with Mr Miliband and Mr Clegg and later further discussed with the devolved administrations and others. Emphasising the need for a political consensus in response to the scandal, he explained:320 In my view, it is important that politicians rise to the challenge to do the right thing for the country. A free and fearless press is an essential part of our democratic process and politicians must act to maintain this wider principle. The opportunity is for this Inquiry to produce recommendations that all political parties can get behind and get the balance of regulation right. That is why when I set up this Inquiry I agreed the Terms of Reference with the leaders of the Labour and Liberal Democrat parties.
4. Reflections
4.1 Mr Cameron has worked closely with the media throughout his careers in politics and television. His experiences of the relationship between the press and the politicians in the 1990s and early 2000s before becoming Leader of the Opposition were evidently formative. Both in Opposition and in Government, his declared strategy has been to engage with a very wide range of broadcast and print media and to do so in depth, formally and informally. He felt it necessary to make considerable efforts and to allocate a good deal of his time, especially in Opposition, to his media strategy. The scale of his disclosed contacts with media figures amply demonstrate that this was so. As Prime Minister, he took deliberate steps to reduce his personal contact with the media but, at a different level, the approach of maintaining wide and deep contacts with the media remained and was continued in Government. The demands made of politicians both by the 24 hour news cycle and the increasing tendency to high volume newspaper coverage of events have become greater than ever during Mr Camerons time at the top level in politics. Those demands are felt in concentrated form by directors of communication for political parties and, especially, by the Director of Government Communication. Both Mr Cameron and Mr Osborne have, with hindsight, expressed regret at their decision to appoint Mr Coulson to that post. Mr Coulsons own assurances played an important part in that decision. He continues to stand by them. For obvious reasons concerned with the criminal investigations and prosecutions (both in England and Scotland), I have not asked any questions directed to the issue of what, if anything, Mr Coulson did know and when or whether the assurances that he has given are accurate. These are for another time. None of that, however, means that I cannot address the Terms of Reference.
4.2
4.3
4.4
Part I, Chapter 6 p1, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf; http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110713/debtext/110713-0001. htm#11071354000003 320 p43, para 128, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf
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4.5
The results of Mr Camerons media strategy in Opposition were successful in winning the support of the centre right press and the endorsement of News International. The circumstances in which Rupert Murdoch and his close advisers decided to endorse Mr Cameron are complex. Mr Cameron went to great lengths to secure meetings face-to-face with Mr Murdoch and other News International executives and editors. The benefits of this may have played some part in the outcome but should not be overestimated. As Mr Osborne fairly observed, the Conservatives were not the only politicians dining with the Murdochs and their executives.321 There were many factors other than personal contact. The evidence does not, of course, establish anything resembling a deal whereby News Internationals support was traded for the expectation of policy favours. All of those involved strenuously deny that there was a deal whether express or implied. The documents do not gainsay them. Nor do the Coalition Governments actions in Government. Nevertheless, Mr Cameron frankly and, in my view, properly accepts that politicians have got too close to the media. In his words:322 Yes. I mean, thats part of my evidence, really, is to say I think this relationship has been going wrong for, you know its never been perfect. There have always been problems and you can point to examples of Churchill putting Beaverbrook as a minister. There have been issues for years. But I think in the last 20 years, I think the relationship has not been right. I think it has been too close, as I explain in my evidence, and I think we need to try and get it on a better footing.
4.6
4.7
4.8
The problem is public perception. This section of the Report has dealt with too many issues where the public, not knowing any more than it has (or, I might say, than what it reads in the newspapers), has been entitled to worry about the way things have been done and what has been going on. A way of conducting relationships with the media which leads to a situation in which a public Inquiry is needed to take an objective, not to say forensic, look at the matter in order to reassure the public cannot be considered as satisfactory or itself in the public interest. Although it manifests itself in different ways, the problem is not unique to any individual politician or any one political party. It has affected previous administrations, both in office and whilst seeking power. As Mr Cameron has agreed, change is needed, and that means that political leaders need to show leadership in making that change. That is also my concluded view. I consider in the Conclusions and Recommendations section of this Part of the Report what, in my view, would support political leaders in making that change.
4.9
p19, lines 16-24, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-11-June-2012.pdf 322 pp14-15, lines 21-5, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Morning-Hearing-14-June-2012.pdf; pp17,73, paras 47 and 218, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/06/Witness-Statement-of-David-Cameron-MP.pdf
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CHAPTER 5 MEDIA POLICY: EXAMPLES FROM RECENT HISTORY

1. Purchase of The Times and The Sunday Times
Introduction
1.1 On 22 October 1980 Thomson British Holdings Limited (Thomson) announced its decision to withdraw from the publication of The Times, The Sunday Times and their associated publications and to cease publication of all the titles in March 1981 if a buyer could not be found by that time.1 It is well known that in the end a buyer was found: Rupert Murdochs News International (NI). The acquisition of these iconic titles immediately gave NI an important place in the national market for broadsheet newspapers. When combined with the companys existing tabloid titles, the News of the World and The Sun, it also conferred upon the company a very substantial share of the national newspaper market. The circumstances by which NI came to acquire these influential titles has been the subject of controversy ever since. This section of the Report examines that transaction for what it may tell us about the relationship between the press and politicians of the time.
The decision to sell

1.2 It is evident from the contemporary documents that Thomsons ownership of Times Newspapers had, by the autumn of 1980, become commercially disastrous. The sale marked a decision by Thomson to cut its losses and a conclusion that it had no realistic prospect of reversing the position. At the root of Thomsons problems was the state of industrial relations. So severe was the problem that publication had been suspended for 11 months in 1978/79 amidst disputes over procedures, guarantees of continuous production, a new wage structure, manning levels and the operation of new technology. Publication was resumed in November 1979 but many of the agreements reached between management and unions soon began to unravel. Industrial disruption in the shape of various forms of non-cooperation from sections of the workforce prevented the operation of new technology. In August 1980 there was a further strike by members of the National Union of Journalists (NUJ) which prevented publication of The Times and its supplements. During October 1980, The Sunday Times was damaged by action in the context of a dispute involving major matters of principle between members of the National Graphical Association (NGA) and the National Society of Operative Printers and Assistants (NATSOPA). That action alone, which affected production on two successive weekends, is estimated to have cost Thomson 500,000 in lost profits. Given the continuing industrial unrest, the conclusion recorded at the time by Thomson was that: ...there was no possibility of an improvement in industrial relations at Times Newspapers, such as to permit the Titles to be produced on an economic basis under Thomson ownership.2 The draft management plan for Times Newspapers produced in September 1980, but considered by Thomson to be very optimistic, forecast continuing losses until 1982 and
1.3
1
The last date set for publication in Thomson ownership of The Sunday Times and the Supplements was 13 March 1981 and a day later for The Times. p13, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/04/Exhibit-KRM-91.pdf 2 p5, ibid
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cash requirements totalling 34.4 million for the years 1980-1982.3 Those bleak statistics came against the background of very substantial interest free loans made by Thomson to Times Newspapers which, by 28 September 1980 totalled 69.8.4 At the time, the company described its reasoning in these terms:5 ...the Board of TBH concluded that, in Thomsons ownership, neither The Times nor The Sunday Times was economic as a going concern and that, in the interests not only of shareholders but also of the Groups employees, the present situation, if allowed to continue, would threaten the future security and development of the Group as a whole.
Setting the deadline

1.4 Of some importance to the later political debate was the manner in which it decided to put the titles on the market. In particular, and as described later in this section, the March 1981 deadline for closure of the publications, unless a buyer could be found became fundamental to the Secretary of States reasoning when he later exercised his discretion to permit NIs acquisition of the titles without a reference to the Monopolies and Mergers Commission (MMC). At the time Thomson asserted that it had to balance a number of factors: (i) its obligations to shareholders, as part of a public company, having regard to the scale of Times Newspapers losses and the demands on the cash resources of the Group; (ii) its desire to see the titles survive in other hands; (iii) the legal requirement to give 90 days notice of potential redundancies and begin consultations with the trade unions concerned; and (iv) the legal necessity to give certain minimum periods of notice to employees under the terms of their employment.6 Thomson recognised that any potential purchaser would have to reach satisfactory manning and technology agreements with the unions. Thomson itself had been trying for years, without success, to achieve just that. It was convinced that: The prospect of achieving the agreements necessary to make the Titles economic exists only in the context that the alternative is the certain cessation of publication and the closure of the Titles.7 Having adopted the deadline, Thomson resolutely stuck to it. It appears to have worked. When writing to the Secretary of State on 23 January 1981 the company was able to state that since the announcement of the deadline production of the Times Newspapers titles had been efficient and uninterrupted.8 Putting back the deadline would not have been an easy matter. Following the 22 October 1980 announcement, Thomson gave notice of redundancy proposals both to the Department of Employment and to the relevant trade unions allowing for the statutory period of consultation. Notices to staff were issued at the end of November. Once issued, these notices could not have been withdrawn unilaterally.
1.5
1.6
1.7
3 4
p6, ibid James Evans memorandum to The Secretary of State for Trade, 23 January 1981, pp4-5, ibid 5 p7, ibid 6 pp7-8, ibid 7 p8, ibid 8 ibid
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Chapter 5 | Media Policy
The bids
1.8 Seven proposals, or serious indications of interest, were received by S.G. Warburg & Company Limited (Warburgs) before the end of year deadline set by Thomson. They came from: (a) (b) (c) (d) (e) (f) (g) 1.9 1.10 NI; Associated Newspapers Limited (ANL); Pergamon Press Limited; Lonrho Limited; Sea Containers Inc (for The Times only); A consortium including Journalists of The Times (JOTT) (for The Times only); and Sir Harold Evans, editor of The Sunday Times, and his associates.
A number of other parties expressed but did not follow up an interest and two parties expressed an interest in the supplements only. In evaluating the bids and, before that, when deciding with whom to engage in serious negotiation, Thomson applied a range of non-financial criteria which were agreed by the Directors of Times Newspapers Holdings Limited (TNHL). These were:9 (a) (b) (c) (d) the new owner or owners should have (i) editorial credibility; (ii) commercial viability; and (iii) managerial skills industrially; the new owners should be seen to have no direct religious, sectional or political interests; the new owners should be of good reputation; the new owners should be asked if they would give a written guarantee of independence for the editors on similar lines to that which they have enjoyed under the Astor and Thomson ownership; if the appointment of the present editors was to continue then on what terms; the new owners should, for preference, be British but Commonwealth and North American would not be excluded; and the new owners should be asked if they had any views on staff involvement or consultation (this refers to JOTT), and would they agree a form of trust on similar lines to the National Directors to act in event of further disposals?
(e) (f)
1.11
Other non-financial criteria upon which Thomson stated they placed considerable weight in evaluating the proposals of the various parties included:10 (a) (b) (c) (d) their ability and determination to conclude complex and difficult negotiations with the unions; the financial and managerial resources required to sustain and develop the titles; the strength of their commitment to support the individual titles; and the views of the journalists.
10
pp16-17, ibid pp17-18, ibid
1235
1.12
Thomsons strategy was to negotiate with a single purchaser of all the titles as a continuing business without interruption to production. It decided not to pursue negotiations with other bidders unless a single purchaser and uninterrupted production proved impossible. The reasons given by Thomson for adopting this approach were that the separate acquisition of The Times would require its removal from the companys Grays Inn Road complex, at some considerable cost, cause the loss of 2,000 jobs, almost certainly cease publication for a period, and risk industrial unrest which might seriously disrupt production of The Sunday Times.11 Fully understanding that any potential purchaser would only commit to the acquisition subject to a satisfactory deal with the unions, Thomson recognised the importance of maximising the chances of such an accommodation with the unions. The company decided that this was best achieved by ensuring that negotiations with the unions should take place with not more than one prospective purchaser of all the titles.12 The result of this approach was that, at the start of 1981, Thomson entered into serious negotiations with NI and ANL. Of the others who might have been eligible on these criteria, Lonrho did not in the end submit a specific proposal and, for reasons which are not fully explained in the contemporary documents, but which appear to relate to the fact that the company was owned by Robert Maxwell, Thomson chose not to negotiate with Pergamon Press Limited. Internal discussion between Sir Denis Hamilton, Chairman and Editor-in-Chief of TNHL, Sir Harold Evans (as he now is) and William Rees-Mogg, then editor of The Times, resulted in their unanimous agreement that Mr Murdoch was the most suitable future proprietor. Their agreement to this effect is recorded in a memorandum to Thomson from Sir Denis, dated 16 January 1981.13 It is right that I qualify the agreement set out in that document by reference to the oral evidence of Sir Harold, who indicated to the Inquiry that in fact his own support for Mr Murdoch was, quite naturally, secondary to his preference for his own bid. The explanation for the discrepancy between what is recorded in the document and Sir Harolds oral evidence seems to lie in Thomsons negotiating strategy. Of course Sir Harold preferred his own bid, but that was at this stage academic because Thomson was at that time only countenancing bids for all of the titles, a restriction which excluded Sir Harolds bid for The Sunday Times. Sir Harolds preference, amongst those who were bidding for all of the titles, was for NI. The memorandum gives eight numbered reasons for preferring Mr Murdoch. First, and perhaps foremost amongst them, was the assessment that: He is a highly effective manager. He, therefore, has the best chance of success on his proven track record. He has built up a big business entirely on his own. The company is in a tough spot. It needs a tough operator to survive. It is also interesting to note reason number 5: He is neither greatly to the Left or greatly to the Right in his politics.14 In preferring NIs bid, Thomson was not selecting the highest bidder. ANL offered more money. However, its bid was thought by Thomson to fall short on other grounds, specifically the fact that ANL was not prepared to commit to the continuance of the titles. Thomson also took into account the capacity of ANL to carry through the transaction and subsequently to manage the titles, and the likely reaction of interested parties, including the journalists, to the ownership of the titles by ANL.
1.13
1.14
1.15
I
1.16
11 12
pp14-15, ibid p15, ibid 13 pp2-6, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-5.pdf 14 ibid
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1.17
Having emerged as Thomsons preferred bidder, the next step was for Mr Murdoch to appear before the Editorial Vetting Committee of Times Newspapers, consisting of the then Chairman of TNHL, three of the four then existing Independent National Directors and both of the then editors (Sir Denis Hamilton, Lord Dacre, Lord Greene, Lord Roll, Mr Evans and Mr Rees-Mogg). He did so on 21 January 1981. The purpose of the meeting was to evaluate would be an acceptable proprietor and at the heart of that process was establishing what assurances Mr Murdoch would be prepared to give on matters such as: maintenance of the titles, resources for their development; editorial independence and quality; board structures, especially continuance of the system of Independent National Directors; and restrictions on the acquisition of shares by persons other than the purchaser.15 The Vetting Committee was sufficiently impressed to recommend Mr Murdoch to the Board of TNHL as the preferred bidder. He secured the recommendation by providing a series of formal undertakings. The principal undertakings were published by TNHL on 22 January 1981 in a press release and covered the preservation and enhancement of the system of Independent National Directors; protection in relation to the appointment and dismissal of editors; limitation on the disposition of titles; and, in some detail, the maintenance of editorial independence.16
1.18
The Fair Trading Act 1973

1.19 A valid transfer of The Times and The Sunday Times to NI could not lawfully be executed without the written consent of the Secretary of State under s58 of the Fair Trading Act 1973. The provision was engaged because the circulation of NIs titles exceeded the limit stipulated in s58(1). In the normal course of events the Secretary of State was prohibited from giving his consent until he had received a report on the proposed transfer from the MMC. However, a number of exceptions to this rule were provided by the statute including, materially, s58(3) (a) which provided that: Where the Secretary of State is satisfied that the newspaper concerned in the transfer is not economic as a going concern and as a separate newspaper then if he is also satisfied that, if the newspaper is to continue as a separate newspaper, the case is one of urgency, he may give his consent to the transfer without requiring a report from the Commission under this section ... 23 January 1981 Thomson apply for consent 1.20 By letter dated 23 January 1981, James Evans, Joint Deputy Managing Director of The Thomson Organisation Limited applied to the Secretary of State for Trade, the Rt Hon John Biffen MP (as he then was) for written consents for the transfer of The Times and The Sunday Times from TNHL to NI.17 A memorandum, enclosed with the letter, explained the factual background in support of the application.18 The basis for contending that the case was one of urgency was the March 1981 deadline which Thomson had itself imposed. In addition to citing the original reasons for setting the deadline, the memorandum explained that it had resisted requests to extend the deadline and considered an extension to be impossible. Thomson steadfastly maintained its reliance
1.21
15 16
p2, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-7.pdf p3, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-6.pdf 17 pp2-3, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-91.pdf 18 pp4-31, ibid
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upon its original reasons and cited five further reasons in support of its stance. They were as follows:19 (a) trade union opinion at a senior level is very strongly of the view that a deadline for closure as an alternative to sale is essential if the necessary new arrangements are to be made with their members, particularly at chapel level, to secure the necessary cost reductions vital to the financial future of the Titles; (b) since the announcement of October 1980 the staff of Times Newspapers have inevitably been under a very considerable strain due to the uncertainties of their future and to prolong this period of uncertainty could now easily lead to many of the staff seeking other employment thus jeopardising the ability of Times Newspapers to continue publication of the Titles; (c) in addition, if the March deadline was extended, even for a very limited period, it would be necessary to withdraw a very large number of notices already issued, particularly those which terminate simultaneously with the deadlines. Since notices cannot be withdrawn unilaterally by the employer and must be subject to the agreement of the individual employee, it is highly likely that the trade unions concerned would seek to exact a heavy price for agreement to the withdrawal of notices or any extension of the notice period. Other alternatives such as the offer of short-term engagements have been considered but give rise to legal consequences involving a cost exposure which it is impossible to risk. Even if some employees were willing to cooperate, a position could easily emerge in which an insufficient number did so and the company would then be faced with a contractual commitment to pay those employees for a further period yet be unable to produce the Titles. (d) in the consultations which have already taken place with the trade unions since 22 October 1980, there has been great pressure from the trade unions to discuss redundancy terms on the basis of closure. The company has declined to do so, mainly for the reason that so long as there is a possibility of sale it is not only inappropriate to do so but inadvisable. The terms of redundancy on closure are likely to be a very contentious issue and discussion of them would run a grave risk of causing disruption at a time when continuity of production is vital for the prospects of sale. It will be necessary, for legal reasons, to enter into discussions of redundancy terms on the basis of closure within a very short time. If there is a further period of uncertainty as to whether or not a sale can be achieved, this could jeopardise the negotiations now beginning for the improvements required as a pre-condition of sale and survival of the Titles; (e) further uncertainty could have very adverse trading consequences. While readers and advertisers have remained loyal to the Titles not only through the period of 11 months suspension but also through erratic publication caused by industrial disruption, there are now signs that advertisers are becoming reluctant to commit ahead in terms of booking space except on a short-term basis, and this is a particular problem for The Sunday Times Colour Magazine because of its longer lead time to publication. In order to secure sufficient bookings for issues subsequent to 8 March, the Sunday Times Colour Magazine is now having to offer substantial discounts to advertisers. This has very
19
pp10-12, ibid
1238
serious implications in view of the importance of the magazine to the financial position of The Sunday Times. 26 January 1981 Mr Biffens consideration of the application 1.22 Mr Biffen acted with great speed. On 26 January 1981, he met first Thomson and then Mr Murdoch, before attending a meeting of the Cabinet Ministerial Committee on Economic Strategy.20 The fact that Mr Biffen met Mr Evans, who acted on behalf of Thomson, on the morning of 26 January 1981, and the substance of their discussions, is evidenced by the letter which the latter sent to the former later the same day. Mr Biffen attempted to persuade Thomson to extend the deadline and indicated that it would be reasonable to hope for a report from the MMC by 25 March 1981. The letter sets out Thomsons substantive response to that request. The company remained immovable on the subject, making essentially the same points as are set out in their earlier memorandum of 23 January 1980 (discussed above) but also relying upon a condition in their agreement with NI that, if the Secretary of States agreement had not been obtained by 12 February 1981, then the agreement would not have effect.21 Mr Biffens meeting with Mr Murdoch is evidenced by an office minute prepared by Mr Biffens officials. It is an important document, not least because it records Mr Biffen as being minded, at that time, to refer the transfer to the MMC:22 1 The Secretary of State said that there was a presumption behind the legislation that he had to refer a newspaper merger automatically to the MMC unless particular financial and timing considerations applied which allowed him to exercise discretion over whether the merger should be referred or not. He said that he had still to come to a decision on whether these considerations applied in this instance though he admitted that he was prejudiced in favour of a reference in order to defuse any criticism of the bid. 1.25 Mr Murdoch signalled to the Secretary of State his willingness to maintain his bid if Thomson extended its self-imposed deadline. Although he was at pains to explain that any such extension would create problems both for him and for Thomson. He thought that an extension of about two months would be required, on the assumption that the MMC reported favourably by 25 March 1981, because of the need thereafter to negotiate with the unions. Mr Biffen maintained his preference for a referral to the MMC throughout the meeting. He does not appear to have ventilated any concerns about plurality. Rather, his concern appears to have been to avoid criticism. The final paragraph of the minute states:23 8 The Secretary of State concluded that in his political judgment an MMC investigation would be the best means of defusing criticism. He considered that the MMC would be able to complete a report in about eight weeks and he hoped that Mr
1.23
1.24
1.26
20 21
p5, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-16.pdf pp2-4, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-10.pdf 22 See http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/23_12_10_murdoch_meeting.pdf. This document is dated 2 February 1981 but, since consent had been given by then, this must be a reference to the date upon which the document was produced. The fact that Mr Biffen met Mr Rupert Murdoch on 26 January 1981 is evidenced in the minutes of the meeting of the Cabinet Ministerial Committee on Economic Strategy. 23 ibid
1239
Murdoch would encourage Thomsons to extend their deadlines so as to allow such an investigation to take place. 1.27 Despite his clear preference for an MMC investigation, Mr Biffen did explore the alternative at the meeting, expressing the view that there would have to be ...an extremely comprehensive set of assurances to allay the fears that had been expressed.... On that issue, Mr Murdoch provided reassurance: ...he was happy to see the assurances that he had given on editorial independence given some statutory backing... At 4.45hrs on the same day, Mr Biffen attended a meeting of the Cabinet Ministerial Committee on Economic Strategy, chaired by the then Prime Minister, Margaret Thatcher. Times Newspapers was one of two items discussed. In the intervening period between his meetings with Mr Evans and Mr Murdoch and the meeting of the Cabinet Committee, Mr Biffen had received Thomsons letter declining to extend their self-imposed deadline because he was aware of it by the time of the meeting.24 It is clear from the minutes that Mr Biffen understood the test which he was required to apply under s58(3)(a) Fair Trading Act 1973 and that his Cabinet colleagues correctly understood that the decision had to be taken by Mr Biffen and not collectively. Mr Biffen reported that: ...On the basis of advice from his Departments accountants, he was satisfied that neither The Times nor The Sunday Times was economic as a going concern, though only in the case of The Times was the issue clear-cut. He was also satisfied the case was one of urgency .... Consequently, discussion was focused on whether Mr Biffen should exercise his discretion to consent to the merger without prior reference to the MMC. The minute succinctly records how Mr Biffen appears to have regarded the choice before him:25 ...He (the Secretary of State), therefore had two alternatives open to him. He could make a reference to the MMC in the hope that the Thomson Organisation would then extend their deadlines, but with the risks of causing TBH to lose a substantial sum of money, of declaring around 4,000 redundancies, and of bringing about what might prove to be the permanent closure of The Times. Alternatively he could give his consent without a reference, subject to a condition which would in effect entrench the undertakings which Mr Murdoch had given, bearing on the independence of the papers and on editorial freedom, and ensure that they could not be changed thereafter without his consent. 1.30 In discussion it was thought unlikely that Thomson would refuse to extend their deadline in the event of a referral, but that there was little advantage in a reference and considerable risks and costs in making it. Thomson had taken the view that no suitable alternative purchaser had made a bid. Those who were pressing for a reference were mainly concerned to secure greater authority behind the undertakings on independence which had already been given. This concern should be met by entrenching the undertakings in the consent. The Opposition, it was thought, might be less inclined to press for a reference when they understood the potential consequences. It was left to Mr Biffen to make his decision.26
1.28
1.29
pp2-4, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-10.pdf; p5, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-16.pdf 25 p5, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-16.pdf 26 ibid
24
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27 January 1981 Mr Biffens decision and debate in Parliament 1.31 An Emergency Debate was held in the House of Commons on 27 January 1981 to discuss a reference of the transfer to the MMC. Contrary to the hopes expressed in Cabinet the previous day, the Opposition pressed vigorously for a reference. The Rt Hon John Smith MP pointed first to the concentration of newspaper power which would result from the transfer, describing it as: probably unique and unprecedented in our history;27 second, to the special place of The Times and The Financial Times in national life; and third to the mechanism for scrutiny afforded under the Fair Trading Act 1973. As to that Act, he contended that The Sunday Times was economic as a going concern. The undertakings given by Mr Murdoch, he argued, removed rather than strengthened existing safeguards. The financial issue was contested by Mr Biffen, who insisted that he had to look at the issue under the existing ownership and under present conditions. He was supported in his approach by the Rt Hon Peter Emery MP, who had been the Minister responsible for getting the Act onto the statute book.28 Mr Biffen also made clear his view that there was a real possibility of closure if he chose to refer the matter to the MMC, pointing out that he had no power to compel the MMC to produce a report to an abridged timetable. He concluded:29 After earnest consideration, and to avoid disruption and uncertainty, I have concluded that I should give my consent forthwith, and without a Monopolies and Mergers Commission investigation, to the transfer of Times Newspapers to News International, subject to certain conditions. 1.33 The eight conditions referred to were firmly entrenched. Those relating to editorial independence were incorporated into the articles of association of the relevant companies. Any change to them required the Secretary of States consent. All of the conditions, if breached, were potentially the subject of criminal proceedings and a custodial sentence. Sections 62(2) and 62(3) of the Fair Trading Act 1973 provided:30 (2) Where ...the consent of the Secretary of State is given to a transfer of a newspaper or of newspaper assets, but is given subject to one or more conditions, any person who is knowingly concerned in, or privy to, a breach of that condition, or of any of those conditions, as the case may be shall be guilty of an offence. (3) A person guilty of an offence under this section shall be liable, on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both. 1.34 George Gardiner MP described the conditions in the debate as being: ...as stringent as any that could conceivably arise from an investigation by the Monopolies and Mergers Commission.31 At the end of the debate, Mr Biffen quoted Sir Harold Evans who had said earlier in the day that: No Editor or Journalist could ask for wider guarantees of editorial independence on news and policy than those Mr Murdoch has accepted and which are not entrenched by the Secretary of State.32 It is right, of course, to point out, as Sir Harold did when he gave
1.32
27
HC Hansard, 27 January 1981, vol 997 cols 780-826, http://hansard.millbanksystems.com/commons/1981/jan/27/ times-newspapers 28 p16, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-12.pdf 29 p6, ibid 30 http://www.legislation.gov.uk/ukpga/1973/41 31 p13, ibid 32 p23, ibid
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evidence to the Inquiry, that what he said was in the context of his still preferring his own bid to that of NI.33 1.35 The debate did not split strictly down party lines. Jonathan Aitken MP (Conservative), who, as the great-nephew of Lord Beaverbrook, had family connections with a newspaper empire spoke against the transfer, warning:34 The plain fact is that Mr Murdoch has strewn assurances and safeguards on newspaper and television ownership like confetti, all round the world, and the more one examines those assurances the more one has to say that in far too many instances they have proved to be worthless. 1.36 Mr Aitken was one of a number of MPs who criticised Thomsons self-imposed deadline and believed that there were other credible bidders. He put it graphically:35 Lord Thomson and Mr Murdoch are putting a phoney pistol to the head of the Secretary of State and saying to him, in effect, Stand and deliver without your reference to the commission. I believe he should have called their bluff, because there were plenty of other serious alternative bidders in the ring. 1.37 From the other side of the political fence, Ron Leighton MP (Labour), who was a sponsored member of the printing union NATSOPA, made clear the support of the trade unions for the NI bid:36 The printing trade unions and, I understand, a very large number of journalists take the view that the best chance of keeping the publications in existence is Rupert Murdoch not Atlantic Richfield or Associated Newspapers ...it is our view that the most viable offer is the one from Murdoch. 1.38 Two MPs alleged at the time that the decision was, in reality, that of the then Prime Minister. Firstly, Phillip Whitehead MP opined:37 I detect the opinions of the Prime Minister. I think that it is the Prime Minister who has dictated that Rupert is owed a favour and that the proposal should not go to the commission. The Minister is an honourable man and a man somewhat given to private and public agonising. Mr Biffen rejected that suggestion. 1.39 Second, the Rt Hon Geoffrey Robinson MP said: In this his first major decision the right hon. Gentleman has failed to stand up to the Prime Minister. That is the reality...This is a straightforward pay-off for services rendered by The Sun.38 In the result, the motion was defeated by 281 votes to 239 and the transfer took place without a reference to the MMC. The debate was followed by a brief correspondence between Mr Smith and Mr Biffen, about the figures upon which the Secretary of State had relied. By letter dated 3 February 1981,
I
1.40 1.41
33
p27, Sir Harold Evans, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-AfternoonHearing-17-May-2012.pdf 34 p9, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-12.pdf 35 p10, ibid 36 p18, ibid 37 p11, ibid 38 p15, ibid
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Mr Biffen conceded that he had made an error in the House but, for reasons which were explained in the letter, stood by the overall conclusion that neither The Times nor The Sunday Times was economic.39 The decision not to commence judicial review proceedings 1.42 The reaction of journalists at The Sunday Times was such that initially a legal challenge by way of judicial review of Mr Biffens decision seemed likely. In the result support for such action collapsed. Sir Harold Evans explained that this change of heart was the result of concern that, if a claim had been successfully brought, and a reference to the MMC ordered, The Times might have been lost.40
The continuing controversy

1.43 Allegations that the Minister might have taken into account irrelevant political considerations were not only raised in Parliament but repeated outside. In his diary entry for 14 June 1987, Lord Wyatt states that he told Mr Murdoch that:41 I reminded Rupert during the evening how at his request and at my instigation she had stopped the Times acquisition being referred to the Monopolies Commission though the Sunday Times was not really losing money and the pair together were not. 1.44 The entry for 1 December 1995 recites a conversation with Dr Irwin and Cita Stelzer, recording that he (Wyatt) had said:42 I had all the rules bent for him over The Sunday Times and The Times when he bought them. Because of the strikes the Sunday Times was at that time losing a bomb, and so was the Times. Through Margaret I got it arranged that the deal didnt go to the Monopolies Commission which almost certainly would have blocked it. 1.45 Sir Harold Evans was explicit in his suggestion to the Inquiry that there had in fact been something of a transaction in this matter between Baroness Thatcher and Mr Murdoch.43 He also said that he was told that Baroness Thatcher had determined the titles must go to Mr Murdoch because she valued his support:44 I was told by someone I know that Mrs Thatcher had determined it must go to Mr Murdoch because she valued his support. In this belief, I was supportive of Mr Hugh Stephenson at The Times, who had it from a friend in the Cabinet Office that Mrs Thatchers real debt of gratitude was the crucial factor in doing it. Lord Donoughue, Bernard Donoughue, had it from the Cabinet Office that she owed him a debt. He had supported her in the last election, and would support him in the next. Mr Jim Prior
39 40
pp3-4, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-13.pdf p27, Sir Harold Evans, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-AfternoonHearing-17-May-2012.pdf 41 Wyatt, W, The Journals of Woodrow Wyatt, Volume One, p372 42 Wyatt, W, The Journals of Woodrow Wyatt, Volume Three, p582 43 p20, Sir Harold Evans, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-AfternoonHearing-17-May-2012.pdf 44 p29, Sir Harold Evans, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-AfternoonHearing-17-May-2012.pdf
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in an interview with Mr Bruce Page said of course it was a purely cynical ploy for political support.
Lunch at Chequers
1.46 More than 30 years after the events in question, in March 2012, and not long before Mr Murdoch gave evidence to the Inquiry, previously unpublished documents were released by the Churchill Archives Centre. These revealed that Mr Murdoch had visited Chequers for lunch with Baroness Thatcher on Sunday 4 January 1981. This was a surprise because Mr Murdoch had not told the author of The History of the Times, Graham Stewart, about it when interviewed in 1995. Sight of the documents, which he did not dispute, did not rekindle any recollection.45 In the light of that, and of the allegations of influence made in 1981 and thereafter, these documents call for careful scrutiny. Events are primarily recorded in a four page note for the record produced by Sir Bernard Ingham (as he became) the day afterwards.46 The lunch was attended by Baroness and Sir Denis Thatcher, Sir Bernard and Mr Murdoch. It was at Mr Murdochs request. There was discussion of President Reagans then embryonic administration and of Australian politics. The main purpose of Mr Murdochs visit though was ...to brief the Prime Minister on his bid for Times Newspapers. The deadline for bids had expired during the course of the previous week. The note records in outline the bid which Mr Murdochs NI had made and his plans for turning the business around are set out in some detail. Mr Murdoch pointed out the scale of the financial risk that he was taking and the difficult economic climate in which he would have to operate. He also speculated about the other bids which he thought had been made (Sir Bernard had tried but failed to establish through the Department of Trade information about the bids). The impression given by the note is that Mr Murdoch did most of the talking. Sir Bernard was careful to record the passive role played by Baroness Thatcher in the last paragraph of the document:47 The Prime Minister thanked Mr. Murdoch for keeping her posted on his operations. She did no more than wish him well in his bid, noting the need for much improved arrangements in Fleet Street affecting manning and the introduction of new technology. Mr Murdoch made it clear that in his view the prime need, given the inevitability of progressing gradually, was to apply existing technology with reasonable manning levels.
1.47
1.48
1.49
The note was marked Commercial In Confidence and Baroness Thatcher required that it did not go outside No.10.48 Mr Murdoch sent a handwritten thank you letter, on 15 January 1981, reporting in relation to the sale that the field had narrowed down to two or three.49
45
pp9-10, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of-MorningHearing-25-April-2012.pdf 46 p3-6, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-14.pdf 47 p6, ibid 48 p2, ibid 49 pp2-3, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-15.pdf
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Reflections
1.50 There appears to be little reason to doubt the difficulty of the situation faced by Thomson in the autumn of 1980. Electing to cut their losses was a commercial decision in the face of mounting losses and real industrial relations problems. The reasons which they recorded at the time explain why it was important for them to set a deadline. Other aspects of Thomsons behaviour fall well within the range of reasonable responses for an organisation in its position. Looked at from the companys point of view, Thomsons preference for a single bidder with the means to purchase the whole of Times Newspapers is understandable. The successful sale of either title individually could have jeopardised the fortunes of the other. Their choice of Mr Murdoch as preferred bidder, later endorsed by the Times Vetting Committee, is explicable on the merits of his bid. ANL, the other serious contender for a purchase of both titles, would not commit to maintaining them both. Mr Murdoch was thought to be a man capable of negotiating successfully with the trade unions. Indeed, he was the preferred choice of the trade unions. Most significantly for the purposes of this Report, there is no evidence that any political pressure was put upon Thomson to prefer NIs bid. However, that there was a confidential meeting between the then Prime Minister and Mr Murdoch, the fact of which did not emerge into the public domain for more than 30 years, is troubling in its lack of transparency. It serves as a reminder of the importance of contemporary practice to make public the fact of such meetings. The perceptions at the time and since of collusive arrangements between the Prime Minister and the preferred bidder are corrosive of public confidence. Not surprisingly, the contemporary documents do not evidence any form of express deal between Mr Murdoch and anyone in the Government of the day, including the Prime Minister. The note of the meeting itself is careful to record that Baroness Thatcher did no more than wish Mr Murdoch well. The minutes of the Cabinet Ministerial Committee on Economic Strategy demonstrate that the committee was well aware that the decision was ultimately for Mr Biffen alone. They are corroborated by Mr Biffens contemporaneous denial that he took irrelevant considerations into account. Why then did Mr Murdoch seek an invitation to Chequers? The prospective deal was plainly of great importance to him. He no doubt believed that there was real value in meeting the Prime Minister face-to-face, to inform her of his bid and his plans in the event that it was successful, and importantly, to form a personal connection. He would have expected to make a good impression on Baroness Thatcher; he would have known of her respect for risk taking entrepreneurs, and that they would have thought alike on the merits of turning around a troubled newspaper company with industrial relations problems. Their world views had much in common.50 There is no evidence that the approach made any difference to the outcome of events; nevertheless, Mr Murdoch was no doubt making an investment, not least in the context of the union confrontation which both would have seen in the future. I have carefully considered what conclusions (whether as to fact or credibility), if any, I should draw from Mr Murdochs inability to recall the meeting either when interviewed for the History of The Times or when he appeared before the Inquiry. It is perhaps a little surprising that he does not remember a visit to a place as memorable as Chequers, in the context of a bid as important as that which he made for Times Newspapers. However, perhaps that is all I need to say.
1.51
1.52
1.53
1.54
50
p11, lines 13-17, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-25-April-2012.pdf
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2. Response to the reports of Sir David Calcutt QC

Introduction
2.1 The Report has already considered the background to, and conclusions of, the Calcutt Reviews in some detail.51 This section of the Report does not seek to repeat any of that detail but to examine the political response to the Calcutt Reviews. The first Calcutt Report 2.2 Sir David Calcutt QC published his first report on Privacy and Related Matters in June 1990. It was highly critical of the existing Press Council and set out in clear terms the failings of that organisation. It recommended that the Press Council be abolished and replaced with a new self-regulatory organisation, the Press Complaints Commission. The report recommended that this new organisation should deal with the numerous and substantial concerns that had been raised around the behaviour of some parts of the press. The report recommended that the new PCC be given 18 months to demonstrate that selfregulation could work effectively. Sir David recommended that, if this challenge could not be met, then an independent complaints-handling tribunal should be set up (which would have required legislation). The details of the recommendations are set out elsewhere.52 The response of the industry was swift but selective. The Press Council was disbanded, and the Press Standards Board of Finance (PressBoF) was created for the purpose of funding the PCC. The PCC itself was incorporated on 1 January 1991. However, many of the recommendations made in the first Calcutt report were not implemented by the PCC. For instance, the Code of Conduct was promulgated by the industry rather than the PCC itself, and the appointments to the PCC were made by the new Chairman, rather than by way of an independent appointments process. The second Calcutt Report 2.5 Concern about the conduct of the press continued and was not dispelled by the PCC. The final straw appears to have been the publication in The Sun of the detail of intimate conversations between the Princess of Wales and James Gilbey, and the Prince of Wales and the Duchess of Cornwall (as she now is). On 9 July 1992, Sir David was asked by the Rt Hon David Mellor QC MP, Secretary of State for National Heritage, to conduct a second review and he did so, reporting in January 1993. In summary, Sir Davids second report made clear his view that the press was neither able nor willing to initiate reforms that might constitute a credible form of self-regulation in which the public could have confidence. He put it in this way:53 The Press Complaints Commission is not, in my view, an effective regulator of the press. It has not been set up in a way, and is not operating a code of practice, which enables it to command not only press but also public confidence. It does not, in my view, hold the balance fairly between the press and the individual. It is not the truly independent body which it should be.
51 52
2.3
2.4
2.6
Part D, Chapter 1 paras 5.12-5.16, Part D, Chapter 1 53 David Calcutt QC, Review of Press Self-regulation, pxi, section 5
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2.7
He therefore recommended that the proposals set out in his first report for a Press Complaints Tribunal be enacted as soon as possible. The detail of his recommendations is set out more fully above,54 but can be summarised as having three main strands as follows: (a) (b) the PCC should be disbanded and replaced by an independent Press Complaints Tribunal; the introduction of new criminal offences, making it a criminal offence to enter property with a view to obtaining personal information without consent, to place surveillance devices on private property without consent, or to photograph or record someone on private property without consent. Various defences were proposed; and consideration of a new tort of privacy.
(c) 2.8
Both the PCC and the industry opposed Sir Davids analysis. The PCC suggested an alternative; namely amendments to the Code of Practice, new guidance for journalists and some changes to the way in which the PCC was run and governed.
The Political Response: David Mellor

2.9 In December 1989, some six months before Sir Davids first report, Mr Mellor was a Home Office Minister of State, working to David Waddington MP, who was then Home Secretary. At that time, prior to the creation of the Department of National Heritage following the 1992 election, the Home Office was responsible for media policy. Mr Mellor gave a television interview in that month indicating that, in the light of Sir Davids forthcoming report, the press were now drinking in the last chance saloon. These were words the press were never to forget. Mr Mellor became Secretary of State for National Heritage on 11 April 1992, just over a year after the PCC had been created. Shortly after commissioning Sir David Calcutts review, in July 1992, Mr Mellor was the subject of a kiss and tell story, in which the actress Antonia de Sancha sold her story of his extra-marital affair with her. Conversations between Ms De Sancha and Mr Mellor had been recorded and were then published in The Sun. Although Mr Mellor survived in office, the press pursued details of his private life and published a number of further stories about him, including one which alleged that he had enjoyed two free holidays; one as the guest of the daughter of an official of the Palestine Liberation Organisation and one as the guest of the ruler of Abu Dhabi. Finally, after weeks of personal and negative coverage, Mr Mellor resigned on 24 September 1992. Mr Mellor felt at the time that he had been hounded out of office by the press as a result of his comments and his formal request to Sir David to conduct a second review; asked by the Inquiry whether he believed that the timing of the adverse articles was deliberate, however, he said this: 55 No, I think it was coincidental, because interestingly, the News of the World had the first chance at the de Sancha story and elected not to publish it, so... I think it was just, you know, an inconvenient moment for ones private life to fall out of the cupboard.
2.10
2.11
54 55
Part D, Chapter 1 p30, lines 7-11, David Mellor MP, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-26-June-2012.pdf
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2.12
However, he did claim that coverage of the the kiss and tell story had been personal and disproportionate, and that the press did appear to be pursuing a personal attack: 56 What shouldnt happen, though, is it then becomes a sort of vendetta and people then go around thinking because you are a wounded animal, rather like in those nature films, you know, the beast can sort of rip you to bits without any worry about fairness, truth or anything and you know, we come to the wretched Chelsea shirt. You know ... fan that I am of Chelsea Football Club, I have never owned a Chelsea shirt. Never felt the need to and that was a total invention.... Insofar as my rather sad and pathetic little Chelsea shirt incident has any relevance... it shows a press that was out of control and had no concern with the truth whatsoever, no concern with the public interest. They were just having a laugh and I was stupid enough to put myself in a position where they could laugh at me, fool that I was.
2.13
Although Mr Mellor took the view that the timing of the articles, shortly after he announced the second Calcutt Review, was coincidental, there is no doubt that there was a measure of press triumphalism at his resignation. The day after his resignation, The Suns front page contained the headline From Toe Job to No Job57 and Bill Hagerty, then Editor of The People, commented: This is the first time in ages that David Mellor has done the right thing. 58
Lord Brooke
2.14 Mr Mellor was replaced as Secretary of State for National Heritage by the Rt Hon Peter Brooke MP, now Lord Brooke. Lord Brooke was Secretary of State for National Heritage between September 1992 and July 1994. As such, he was Secretary of State for the period immediately following the publication of Sir Davids second report and the first of two Secretaries of State with responsibility for responding to that report. He described this role in this way:59 I should stress that my involvement in that response [the governments response to Sir Davids second report] was my principal media responsibility during my 22 months as Secretary of State. 2.15 It is important to note from the outset that although Sir Davids second report was published in January 1993, the Governments response to it did not emerge until 1995, after Lord Brookes time as Secretary of State. He explained:60 the chronological narrative indicates how not once but twice we ran out of time to settle the genuine departmental differences between us.
He concluded:61 only historians can fully determine how, where or why we failed, which of course I regard as an embarrassment.
56
p31, line 19 and P35, lines 103, David Mellor MP, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/ Transcript-of-Afternoon-Hearing-26-June-2012.pdf 57 http://sunheadlines.blogspot.co.uk/2009/02/classics-toe-job-to-no-job.html 58 http://news.bbc.co.uk/onthisday/hi/dates/stories/september/24/newsid_2529000/2529115.stm 59 p1, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Lord-Brooke.pdf 60 p11, para 2(h), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Lord-Brooke. pdf 61 p11, para 2(h), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Lord-Brooke. pdf
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The Inquiry was interested in understanding how and why there was no consensus, why the process took so long, and why so little was ultimately done. In order to answer these questions, it is necessary to consider the chronological narrative in a little detail. 2.16 Upon publication of the second report in January 1993, Lord Brooke made an oral statement to the House of Commons. Having made clear that a final response would have to await the report of the Select Committee on National Heritage on Privacy and Media Intrusion and the outcome of the debate on Mr Soleys Bill,62 Lord Brooke indicated that the Government was broadly supportive of Sir Davids recommendations relating to privacy, such as the case for new criminal offences to deal with specified types of physical intrusion, and that further consideration should be given to the introduction of a new tort of infringement of privacy as recommended. However, on the central recommendation that a Press Complaints Tribunal be set up, he put the Governments position this way: 63 I turn now to Sir Davids recommendation that the Government should introduce a statutory regime for dealing with complaints against the press. That raises separate, and more difficult, issues which need to be carefully weighed. The Government agree with Sir David that the Press Complaints Commission, as at present constituted, is not an effective regulator of the press. It is not truly independent and its procedures are deficient. Sir Davids detailed analysis of those shortcomings is compelling. We also recognise the strength of the case that he makes in his report for a statutory tribunal with wide-ranging powers. At the same time, we are conscious that action to make such a body statutory would be a step of some constitutional significance, departing from the traditional approach to press regulation in this country. In the light of those considerations, the Government would be extremely reluctant to pursue that route. A most persuasive case for statutory regulation would need to be made out. 2.17 That was also the view of the press. The report of the Select Committee on National Heritage was published on 24 March 1993.64 In summary, it recommended a new Protection of Privacy Bill, but rejected the recommendation for a press complaints tribunal concluding that unless future events show such a tribunal to be utterly unavoidable,65 it was preferable to rely on self-regulation. Strand 1: The Press Complaints Tribunal 2.18 In rejecting the proposal of a tribunal, the Select Committee did propose the appointment of a Press Ombudsman (which would also have required legislation), on the basis that a regulatory level is needed beyond that of the Press Commission. The Ombudsman, it was envisaged, would be able to provide an accessible and effective recourse for anyone dissatisfied with the outcome of a Press Commission investigation, or whose complaint had been rejected without an investigation.66 Lord Wakeham (then the Chairman of the Cabinet Committee on Home and Social Affairs) opposed this proposal, describing it as Calcutts statutory tribunal by another name.67
62 63
now Lord Soley http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Lord-Brooke-Exhibit-1.pdf 64 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Lord-Brooke-Exhibit-2.pdf 65 Select Committee Report, para 39, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Lord-BrookeExhibit-2.pdf 66 Select Committee Report, para 97, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Lord-BrookeExhibit-2.pdf 67 p5, para 2(xv), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Lord-Brooke. pdf
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2.19
On 28 June 1993, Lord Brooke minuted Lord Wakeham saying that the White Paper would acknowledge the steps already taken to meet some of the Calcutt and Select Committee criticisms, but that the Government preferred to retain self-regulation. It was clear therefore from that date that the Government had decided to reject the proposals for a either a Press Complaints Tribunal, or a Press Ombudsman. On 29 July 1993 the Lord Chancellors Department, in conjunction with the Scottish Office, published a consultation paper. This floated the idea of a voluntary press Ombudsman scheme being set up within the PCC itself. In September 1993, Lord Brooke gave a speech to the Conservative Party conference, referring to the concept of a voluntary Ombudsman. In November 1993, he gave a speech to the Institute of Public Relations, calling on the press to establish such a voluntary Press Ombudsman. Again, as will be seen, this was never something taken up by either the press or by Government. Strand 2: criminal offences
2.20
2.21
On 14 January 1993, Lord Brooke made a statement to the House of Commons in which he said this about the new proposed criminal offences: 68 The Government accepts the case for new criminal offences to deal with specified types of physical intrusion and covert surveillance ... Subject to further examination of the details of the proposed offences ... The Government will bring forward legislation in due course.
2.22
By May 1993, the Cabinet had agreed that the Criminal Justice Bill, to be introduced either that year or the following year, should include provisions on intrusion. Indeed, Lord Brooke told the Inquiry that, before a Cabinet meeting in June 1993, Sir John Major had expressed interest in seeing details of proposed criminal offences. At that meeting, the new proposed criminal offences were discussed. Lord Brooke told the Inquiry: 69 Criminal offences had been discussed on June 24th in terms of Parliamentary handling. I sought to reach agreement with the Home Secretary and that the offences should apply to those who profited from, or even used without profit, the results of illegal intrusion. The intrusion and the use of the material should thus be separate offences. The offences should only apply to personal information but the offences should be in the 1993-4 session of legislation, having been accepted as far back as 1990.
2.23
I
2.24
On 18 August 1993, a Cabinet Office note on possible criminal offences on intrusion concluded by noting that the aim remained to publish a White Paper in September of that year, following a discussion at the first meeting of Cabinet after the summer break. However, the ambition of publishing the White Paper in September was not fulfilled. In January 1994, Lord Wakeham met with the Lord Chancellor (Lord MacKay), Lord Brooke, the Home Secretary and a number of other senior politicians, to discuss the Calcutt recommendations. Lord Wakeham himself described this meeting as productive, and it appears that a common view was reached on the proposed criminal offences. By 8 February 1994, Lord Brooke was proposing to circulate a draft of the White Paper which recommended the introduction of the new criminal offences. This draft of the White Paper was sent to the Prime Minister on 3 March.
68 69
HC Hansard, 14 January 1993, Col 1067 p5, para 2(xviii), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-LordBrooke.pdf
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2.25
On 7 March 1994, No 10 wrote to Lord Brooke asking for some further time to consider the White Paper, and on 31 March 1994 wrote again, asking him to recast the draft White Paper. The new draft was to make the case for the new criminal offences whilst balancing it with the arguments against; acknowledging the need for wide defence provisions against criminal offences but also the disadvantages of the offences with such defences included. This intervention marked a turning point in the history of the response to the recommended criminal offences. The new draft White Paper was produced on 30 June 1994.70 The Chancellor of the Exchequer expressed some disappointment that there had been a retreat on the idea of new criminal offences. By the time of Lord Brookes departure on 20 July 1994, it was clear that the Governments support for Sir David Calcutts recommendation for new criminal offences to be introduced was beginning to wane. Indeed, as will be seen, no new criminal offences were in fact introduced. Strand 3: civil offences
2.26
2.27
2.28
As referred to above, on 29 July 1993, the Lord Chancellors Department, in conjunction with the Scottish Office, published a consultation paper. This proposed the introduction of a civil penalty for infringement of privacy. Lord Brooke told the Inquiry that the Lord Chancellor was known to be of the view that his proposed tort would render unnecessary any changes to the criminal law.71 In January 1994, the Lord Chancellor invited the Department of National Heritage to agree that there should be a statutory remedy for infringements of privacy, arising from their conclusions on the July consultation paper that the civil law should be put on a statutory footing. On 3 March 1994 Lord Brooke provided a draft White Paper to the Prime Minister on that basis. By the end of that month, the Prime Minister had asked him to redraft it. On the issue of the new tort, the new draft was to say that, although a new tort was under consideration, the inclusion by the PCC of like provisions within its own Code of Conduct would be even better. Again, by the time that Lord Brooke left office, it was clear that the Government had also retreated from this recommendation, preferring instead to encourage enhanced selfregulation.
2.29
2.30
The Rt Hon Stephen Dorrell MP

2.31 In July 1994, the Rt Hon Stephen Dorrell MP was appointed as Secretary of State for National Heritage; he therefore inherited the amended draft White Paper.72 The key conclusions of the White Paper were as follows:73
70 71
http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-1-S-Dorrell.pdf p5, para 2(xxv), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-LordBrooke.pdf 72 pp3-4, lines 18-16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning-Hearing23-May-2012.pdf 73 p5, paras 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-StephenDorrell-MP.pdf
1251
The Government accepts the [Select] Committees analysis of the dilemma [posed by the need for a balance between freedom of expression and privacy] and agrees that, at the stage when Sir David Calcutt and the Committee reported, the necessary balance between these rights manifestly did not exist... Since that time, however, the press has shown hopeful signs of greater self-restraint, and the PCC has improved its procedures and practices. There have been regrettable lapses by individual newspapers, and the Government is still to be convinced that the newspaper industry, through the PCC, is fully in control of its members and we have entered a new era of wholly responsible journalism. But it considers that statutory intervention at this stage would be out of proportion and possibly counter-productive. Nonetheless the Government would urge the industry to consider further the selfregulatory improvements set out in paragraphs 2.36 to 2.39 and in paragraph 4.19 ... Failure to implement these changes, particularly if any such failure coincided with further press abuse, will incline the Government to introduce, or give support to any Private Members Bill introducing intrusion offences, a privacy tort, or both. 2.32 In written evidence to the Inquiry, Mr Dorrell indicated that his first instinct upon taking office was to take some time to reassess the various options. He noted as follows:74 (a) I am personally hostile to any proposal for official regulation of freedom of expression; (b) Quite apart from issues of principle, any proposal to regulate the activities of the press carries obvious political risks; (c) I was reluctant to publish the draft White Paper which combined a theoretical willingness to legislate (about which I was dubious) with practical unwillingness to do so (which I thought was unconvincing)75; (d) I was conscious that there had been substantial debate before I took office between senior members of government, some of whom were more sympathetic to a regulatory response than I was. 2.33 In his oral evidence Mr Dorrell was asked to elaborate why, in his view, the Government was so keen to avoid replacing the PCC. His explanation was as follows:76 I think it starts as an issue of principle ... it would be a step of considerable constitutional significance ... There was also, because this was a real political world with a real political set of decisions, there was the reality that if you were going to even contemplate going down that road, you would encounter huge opposition from the press themselves, based both on principle and its often argued on self-interest, but it would be powerful, vigorous opposition, and that would, as a practical matter, have made it impossible for such a proposal to have been carried through the House of Commons. So whether you address it as an issue of principle or reality, it wasnt an option that merited very serious consideration.
74
p6, para 15, Stephen Dorrell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statementof-Stephen-Dorrell-MP.pdf 75 Mr Dorrell explained in oral evidence that I think it was time in my mind for the government to stop talking in terms of threats, which it had no willingness to carry out, and indeed no ability to carry out and everybody knew that those things were true; p8, lines 10-14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-23-May-2012.pdf 76 pp3-4, lines 18-14, Stephen Dorrell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-23-May-2012.pdf
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2.34
Mr Dorrells written evidence indicates that, as of November 1994, the imminent appointment of Lord Wakeham as Chair of the PCC prompted a dialogue with the PCC about the options for improving the self-regulatory structure, and that this dialogue continued into the early weeks of 1995. He described his objectives at that stage as being to develop the policy outlined in the draft White Paper so that:77 (a) (b) the Government could report that it had agreed improvements to the operations of the PCC which would justify its decision not to replace it; and it could also report a clear conclusion namely that it intended to proceed with its commitment to legislate the proposed criminal intrusion offences, and that it did not intend to proceed with legislation to introduce a new tort of infringement of privacy.
2.35
This policy position was summarised in a minute sent by Mr Dorrell to the Prime Minister on 2 March 1995.78 This minute prompted responses from three Ministers, all of whom favoured proceeding with the policy position set out in the original draft White Paper. On 20 March 1995, Mr Dorrell produced a further minute for the Prime Minister. This brought a number of matters to his attention. In relation to the proposed tort of privacy, the minute revealed a real concern about taking on the press, reading as follows: 79 The tort would be the wrong thing at the wrong time. Most importantly, it would mean a major row with the press (the Daily Mail editorial of 16 March, annex B, is a good indication of the strength of feeling). By contrast, the press has never been in serious doubt that the criminal offences would be enacted (emphasis added).
2.36
2.37
The relevant Daily Mail editorial was headed Who are they to cry foul? and started with the words What is this profoundly unpopular government now doing? It went on to recite the names of a number of Ministers driven out of office by their own philandering and folly and concluded that the Prime Minister must know that in the current climate of sleaze and corruption any concerted political clamour for privacy legislation is liable to be dismissed as little better than a self-protection racket.80 Mr Dorrell was asked whether he was concerned about press coverage of this nature. He explained: 81 I was told early in my political life: any fool can have friends, it takes a wise man to have the right enemies. You have to pick which battles youre going to fight. Im not in favour of having government policy determined by press editorial, but nor am I in favour, in the real world, of government policy being determined blind to press editorial. You have to choose which arguments youre going to have. One of the elements of that choice is that theres not much point in the government committing itself to a course of action which, because of press hostility, it is profoundly unlikely to get through the House of Commons. That was in my judgment the position that would have been in if wed contemplated going down the route of introducing legation and privacy.
2.38
77
p7, para 19, Witness Statement of Stephen Dorrell MP, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/05/Witness-Statement-of-Stephen-Dorrell-MP.pdf 78 p11-12, lines 21-14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-ofStephen-Dorrell-MP.pdf 79 p15, lines 11-16, Stephen Dorrell MP, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-23-May-2012.pdf 80 pp15-16, lines 17-13, Stephen Dorrell MP, ibid 81 p16, line 16, Stephen Dorrell MP, ibid
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Q: It seems that editorials from the more influential papers like the Daily Mail were certainly having an effect on your thinking? A: Of course. Thats part of the public discussion and I think it would be for a politician to deny that the views of newspaper editorials are taking into account in policy making would be both implausible and actually wrong in principle. 2.39 A third minute was produced by Mr Dorrell for the Prime Minister on 24 April 1995. This minute referred to a request from the Prime Minister as to how the Government might present a do nothing option.82 Mr Dorrell was asked about this:83 Q: So can I take it from that that the Prime Minister was beginning to think in terms of a do nothing option? A: I think its relatively hard to draw any other conclusion from this correspondence. The government was arguing itself to a standstill, and therefore there had to be it was a reasonable question for him to ask. We had an obligation to reply to Calcutt. We also had an obligation to reply to a Select Committee report, which this response was by then two years behind schedule, so we had to bring the matter to a conclusion somehow. 2.40 The third minute accordingly discussed the do nothing option. It explored how such a decision could be presented. The practical options appeared to be: first, making no statement at all, second announcing that nothing was going to be done, or third making a statement which (a) confirmed the intention to legislate the intrusion offences when Parliamentary time permits (italics in the original) and (b) asserted the preference for self-regulation in the wider field of privacy law but underlined that continued public confidence in this approach depended on the effectiveness of the PCC. When asked why the words when Parliamentary time permits was in italics, Mr Dorrell confirmed that this was because the real intention was in fact simply not to enact these provisions.84 Mr Dorrells minute expressed the view that the final option was the least bad choice and that although it would take a good deal of brazening out, given the history, it could not be criticised as a substantive retreat, it avoids a head-on collision with the press and it gets the Select Committee off our backs. He went on:85 Q: Can I suggest that this political debate and the consideration of the announcing do nothing and the third option of saying that youre going to legislate when Parliamentary time permits, is that an example of a phenomenon which has been referred to by Tony Blair of not being able to be entirely frank for fear of how matters will be perceived?
2.41
A: I think that is a reasonable way of putting it, and I think its pretty explicit in the minute. I was asked to dress up a do nothing option. One way of doing nothing is to announce that youre going to do nothing, and I made it clear in the minute why, as a member of the government, that didnt seem to me to be an attractive way of announcing it, but clearly the option (c) amounts to the same thing. Q: Indeed it wasnt your preferred way forward, but a variation of the do nothing option was in fact what happened, wasnt it? A: Substantively, yes.
82 83
pp23-26, lines 3-19, Stephen Dorrell MP, ibid p22, line 9, Stephen Dorrell MP, ibid 84 p26, lines 7-14, Stephen Dorrell MP, ibid 85 p26, lines 1-19, Stephen Dorrell MP, ibid
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2.42
Thereafter, Mr Dorrell produced a further draft White Paper, which went to a Cabinet Committee meeting which was held on 15 June 1995. This set out Mr Dorrells preferred option, namely to legislate on the criminal offences but not the tort, and it encouraged the PCC to raise its game; but noted that the Government had no plans to replace it. No clear consensus appears to have been reached at that meeting, and Mr Dorrell explained in evidence that Ministers had differing views on the appropriate way forward.86 A number of discussions took place thereafter between No 10 and the Department of National Heritage, but matters were interrupted by the Prime Ministers decision to resign his position as Leader of the Conservative Party on 22 June 1995. Following Sir John Majors re-election, Mr Dorrell moved to the Department of Health. Mr Dorrell was asked whether he considered that the Governments response to Sir Davids second report had been a missed opportunity. Unlike Sir John Major, he did not think so: 87 My basic response to that is no I dont. First of all, at a purely mechanistic level, the ability to do anything fundamental in legislative terms I dont think was there because, as I have already said, I dont think in reality wed have been able to carry legislation, so there was no opportunity, if thats what you wanted to do. But ... I am not persuaded that if we go down the legislative route here we dont create a problem, a cure thats worse than the disease.
2.43
2.44
Virginia Bottomley MP
2.45 The results of the discussions referred to above were the White Paper, published on 17 July 1995, some two and a half years after the publication of Sir Davids second report. The Rt Hon Virginia Bottomley MP, now Baroness Bottomley, as the new Secretary of State for National Heritage, was responsible for its publication. The key points of the White Paper were as follows:88 (a) The Government does not find the case for statutory measures in this area compelling. It believes that, in principle, industry self-regulation is much to be preferred. (b) The Government has long recognised that there is, in principle, a case for the introduction of [new physical intrusion] offences ... The Government has however so far been unable to construct legislation which in practice would be sufficiently workable to be responsibly brought to the statute book. (c) In considering the results of the consultation [on the feasibility of introducing a new tort of the infringement of privacy] the Government draws two conclusions. First it does not believe there is sufficient public consensus on which to base statutory intervention in this area. Secondly it strongly prefers the principle of self-regulation ... It therefore has no present intention to legislate a new civil remedy. 2.46 In summary, the PCC was to remain, and there was to be no new tort and no new criminal offences.
86 87
p34, lines 5-17, Stephen Dorrell MP, ibid p37, lines 8-19, Stephen Dorrell MP, ibid 88 Cmnd 2918, paras 2.5, 3.3-3.4 and 4.13
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2.47
Baroness Bottomley summarised the position she inherited as follows: 89 Taking over in July 1995, I had little direct knowledge of the conditions prior to Sir Davids report. There was confidence that John Wakeham, as Chairman of the PCC, was the man for the moment and would lead self regulation in an authoritative manner with, if necessary, greater menace than before.
2.48
She therefore moved forward with the response to Calcutt largely as it had been prepared under her predecessor. She announced to Parliament that the Government would for the present allow Lord Wakehams commission, and the press, to demonstrate that selfregulation can be made to work.90 All three of the Calcutt recommendations for legislation were rejected and instead Baroness Bottomley told Parliament that she had written to Lord Wakeham setting out further improvements that the Government wish to see both in the procedures of the PCC and in the code of practice itself.91 Those improvements included the creation of a compensation fund from which the PCC would compensate those whose privacy had been violated by the press and a number of changes to the Code to place greater weight on the protection of individual privacy.92 This was a complete victory for Lord Wakeham and the press, delivered through negotiation with the Government in relation to the improvements that could be delivered through self-regulation. Baroness Bottomley appeared to consider that the Government and Lord Wakeham had an understanding and she presumed it would be honoured on both sides. She said: I was satisfied that Lord Wakeham, who is not to be trifled with, had got the measure of the role. There were lists of improved reforms and mechanisms.93 This was demonstrated, for example, in February 1996, when a Private Members Bill on protection of privacy was brought forward, Baroness Bottomley was keen to honour that agreement. In a letter to the Lord President of the Council she said: 94 More importantly, the Bill would cut across our policy on press regulation. It would be strongly resisted by the media, and would undermine the position of John Wakeham, whose authority as chairman of the Press Complaints Commission is predicated on the Governments assurance that it will not introduce legislation provided that he can make self-regulation work. For this reason alone, I think that the Bill should be blocked at Second reading.
2.49
2.50
2.51
By the end of 1996, it was becoming clear that the PCC and the press had not delivered on all that the Government had asked, and expected, of it in 1995. An internal Department of Heritage review of press self-regulation for the Secretary of State concluded that95 in certain crucial respects, and as shown by a series of unremedied press abuses, the weaknesses of self-regulation identified by the first review (covering July 1995-April 1996) have not been addressed, largely because the industry and Commission have not implemented various recommendations which you [Mrs Bottomley] made.
I
89
p1, para 2(a), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-statement-of-Rt-HonVirginia-Bottomley-of-Nettlestone-signed-30.04.12.pdf 90 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Exhibit-to-Rt-Hon-Baroness-VirginiaBottomley_Privacy-Media-Intrusion-17-July-1995.pdf 91 p3, ibid 92 p5, ibid 93 p2, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-statement-of-Rt-Hon-VirginiaBottomley-of-Nettlestone-signed-30.04.12.pdf 94 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Exhibit-to-Rt-Hon-Baroness-VirginiaBottomley_letter-to-Anthony-Newton-MP-Re-Private-Members-Bill-12.02.96.pdf 95 p2, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Exhibit-to-Rt-Hon-Baroness-VirginiaBottomley_letter-from-Lord-Wakeham-re-Press-Regulation-22.01.97.pdf
1256
2.52
The Department of Heritage note recorded agreement with Baroness Bottomley that she should write to Lord Wakeham to seek assurances that there would be action on breaches without a complaint, as well as incorporation of guidance on the public interest. This note shines a very interesting light on the relationship that had hitherto existed between Baroness Bottomley and Lord Wakeham. Baroness Bottomley was warned that seeking assurances from Lord Wakeham which he was known not to be willing to give would be a distinct change of approach:96 You should note that this will be a change of approach to the Press Complaints Commission. The two previous-exchanges with Lord Wakeham (i.e. the letters published in July 1995 in Privacyand Media Intrusion, and those referred to in paragraph 1 above) were agreed in draft by the recipient before they were sent, so that, for example, your letters to Lord Wakeham tended to be limited to recommendations which he personally favoured, which he thought the industry would accept, or which he felt he could reject or defer in a plausible way. Equally, we could ensure that his letters to you were less evasive than they might otherwise have been. I think that the difficulty with this method is that your letters push mostly at open doors, whereas it is the closed ones on which he has not been very forthcoming and which are at the root of the present failures of self-regulation.
2.53
It has not been possible to follow these policy developments from start to finish, but the evidence presented demonstrates first, that the 1995 Government response to Sir David Calcutts report was developed on the basis of an understanding between the Government and Lord Wakeham (clearly acting on behalf of the press), and second, the limited extent to which even that understanding, so wholly in favour of the industry, was ultimately delivered by the industry or the PCC.
Lord Wakeham
2.54 Lord Wakeham said in evidence that he was appointed as a fixer, a man tasked with restoring the reputation of the PCC with leading figures within Government and of convincing the public of the effectiveness of the PCC.97 In his evidence to the Inquiry, Lord Wakeham summarised the thinking of the industry in relation to his appointment in this way:98 I think the newspaper industry did not want statutory control and that they accepted they needed someone to be the chairman with a bit of clout, who could stop statutory control by getting the standards up to an acceptable level, and this was my view of what I thought they probably wanted. 2.55 Lord Wakehams particular skills were certainly recognised at the highest levels of Government. Sir John Major said:99 I think if you wanted someone who could guide the PCC to a better code of behaviour, it would have been difficult at the time to find anyone better than John Wakeham or more capable of being able to do it. Certainly he made some efforts to do it, but I think at the end John would concede there was more perhaps needed to be done than he was able to do. But it was perfectly credible to believe that he would achieve more than almost anyone in doing it.
96 97
pp1-2, para 3, ibid p19, lines 19-25, Lord Wakeham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-15-May-2012.pdf 98 p19, lines 19-25, Lord Wakeham, ibid 99 p76, lines 2-9, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-12-June-2012.pdf
1257
2.56
Sir John also made clear the political impact of Lord Wakehams appointment (as well as the intelligence of the industry decision) in these terms:100 I mean, those who were at all queasy about it would then say, Look, here is one of our own, a very respected former Cabinet Minister who is actually chairing the PCC. Therefore, why dont we wait and see how well he gets on? Why rush ahead with legislation? So his appointment did have a material effect upon views in the Parliamentary party.
2.57
Lord Smith of Finsbury, the Secretary of State for Culture, Media and Sport between 1997 and 2001, noted that the appointment of Lord Wakeham as Chair of the PCC represented a sea change in that organisation.101 He explained that Lord Wakeham moved to look seriously at how the powers of the PCC might be strengthened, stating that this was the first time that the PCC had demonstrated a preparedness to make real change. This, he suggested, led policy makers to be sufficiently impressed to remove the threat of concerted political action.102 This he asserts:103 effectively ensure[d] that the Calcutt proposal for statutory intervention did not have political legs.
2.58 2.59
Certainly, Lord Smith gave evidence that on his assumption to office, press reform was no longer an issue accorded any priority.104 It may be argued that this was the purpose of Lord Wakehams appointment; in the words of Lord Smith, to draw the sting of political pressure for greater and more far-reaching reforms. Lord Wakeham was regarded as an able political operator and was outstandingly skilful in his efforts at reforming the PCC.105 The purpose of his appointment, however, has been open to question. On the one hand, it is argued that it was to make use of his finely tuned political antennae to deliver the minimum reform necessary to placate the proponents of greater press reform and preserve as much of the industry influence and control of the system of press self- regulation as possible. On the other hand, it is contended that this was a genuine attempt at reform, that ultimately though well intended fell short of delivering real and effective change. The third possibility is that Lord Wakehams tenure as Chair of the PCC fell somewhere between those two stools. The role of Lord Wakeham is altogether more complex and nuanced than as the fixer he claims himself to be. He was also appointed as Chair to make certain that the PCC was satisfactory to the industry it sought to regulate. As the Report has noted, Lord Wakeham gave evidence that he was a strong supporter of both press freedom and self-regulation:106 I dont think you could be a chairman of a body that was running a system of selfregulation unless you believed in self-regulation. I think that would be a bit difficult. And I cant imagine you being a very good chairman of a Press Council if you didnt believe in press freedom. I would have thought they were pretty self-evidently things that were required for the job.
2.60
2.61
p76, lines 15-21, Sir John Major, ibid p2, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Lord-Smith.pdf 102 pp4-5, lines 18-9, Lord Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-22-May-20121.pdf 103 p5, lines 7-8, Lord Smith, ibid 104 p4, lines 18-25, Lord Smith, ibid 105 pp4-5, lines 25-2, Lord Smith, ibid 106 p15, lines 17-22, Lord Wakeham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-15-May-2012.pdf
101
100
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2.62
The key to Lord Wakehams success was that he provided the Government with a solution to what had increasingly become an intractable problem. By the time Mr Dorrell became Secretary of State, the Government may have privately abandoned proposals to implement the recommendations of Sir David Calcutts second report. It seemed to those in Government, including Mr Dorrell, that the most effective way forward was through reform of the PCC itself. Lord Wakeham had the personality, status and apparent willingness to take that reform forward to the satisfaction of Government.107 It is testament to the political skills of Lord Wakeham that, in this particular context, the PCC emerged as a potential solution to the issue of privacy.108 Additionally, it was fortuitous for Government that Lord Wakeham moved quickly to introduce reforms to make the PCC more credible. These included, for example, the strengthening of the position of the Privacy Commissioner, and the appointment of men of stature to key positions within that organisation, about which Lord Wakeham said:109 Well, I suppose this is the flipside of me being appointed as the chairman. I mean, things were changing and here it seemed to me that it was important to try and get the Press Complaints Commission more highly respected and therefore to get the right people and have the right people appointing them seemed to me to be a move in the right direction.
2.63
2.64
By the time that Baroness Bottomley took over as Secretary of State, it is clear that Lord Wakeham was successfully influencing Government policy, very much to the advantage of the PCC and the press without distinction between the two.
Sir John Major

2.65 The first Calcutt report was published a few months before Sir John Major became Prime Minister, but the second report was published in January 1993 when he had been in that position for a number of years and had, of course, been returned to power following his election victory in April 1992. Asked about his direct role in responding to Sir Davids second report, he said this:110 Well, I didnt acquire direct ownership of the issue, certainly not. It was one of 20 or 30 there are 30 to 40 issues a day that cross a Prime Ministers desk. The fact of the matter is that he or she can almost never have direct ownership of an issue. It has to be sub-contracted to the appropriate Secretary of State and the appropriate Cabinet committee and that is what happened with the Calcutt Report ... The dayto-day detail of examination, of what is a very complex matter ... was predominantly in the hands of the Secretary of State, although when things were snarled up, they were reported back to me and I became sucked in, in terms of expressing an opinion and inviting people to go back and look at something again or recognising that it wouldnt work.
pp9-10, lines 20-23, Stephen Dorrell MP, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/WitnessStatement-of-Stephen-Dorrell-MP.pdf 108 p27, lines 17-25, Lord Wakeham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-15-May-2012.pdf 109 p19, lines 12-18, Lord Wakeham, ibid 110 p64, lines 1-19, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-12-June-2012.pdf
107
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2.66
Sir John was asked in evidence about the three strands to the Calcutt recommendations. As to the recommendation for an independent tribunal, he noted:111 The grounds of principle we had in mind was the freedom of the press to comment. That was why we regarded the idea of a statutory tribunal as very much as a last resort and something that we were not at the time attracted to.
2.67
As to the proposed privacy tort, he noted:112 There were several difficulties with the tort of privacy. One of the difficulties was that it was very easy to portray a tort of privacy as being a piece of legislation that favoured people who were relatively well off and relatively well organised but without complete access to legal aid for everyone would not be available to be used by the vast majority of people ... The other point about the tort of privacy was that it became apparent in the deliberations of the Cabinet subcommittee was that there was a very substantial philosophical difference within the Conservative Party, within ministers, as to the desirability of a tort of privacy. Some thought it would be very difficult to frame and might only be unfairly framed and that would be unfair on the media. Others thought it would provoke such hostility that it would dwarf everything else that the government were doing. To that extent, some of them were very wary. Others were simply philosophically unsure that it was the right time and right place to actually go down that route. There was a universality of opinion across the press that the tort in particular would be very damaging to investigative journalism. That was their view and they expressed it very forcibly in the columns of their newspapers ... It was a universality of opposition that we thought would spill out beyond opposition to that into opposition on wider areas of policy as well. The government would, in effect, become tainted. I think some colleagues felt that and there would be a general opposition to what the government were doing and not just an opposition focussed on that particular piece of legislation and that particular provision.113
2.68
As to the proposed criminal offences:114 I asked the then Secretary of State why he felt that the press werent very concerned about the criminal clauses and he said that was what they had told him in discussion. I dont suggest that they were enthusiastic; I suggest that there wasnt a last-ditch determination by the media to have fought against that.
2.69
Asked why, in general terms, the Government had been unable to implement any of the main Calcutt recommendations, he said as follows:115 The principal reason, at the end of the day not the only reason, but the principal reason, at the end of the day, why we were unable to enact Calcutt is that we could not have got it through the House of Commons. If you cannot get something through the House of Commons, you are powerless. That is the difference between a government with a large majority can force something through. A government with a small majority and in the 1990s we had a small majority to start with and it shrank
111 112
p65, lines 11-15, Sir John Major, ibid p69, lines 1-12, Sir John Major, ibid 113 p72, lines 9-18, Sir John Major, ibid 114 p69, line 23, Sir John Major, ibid 115 p73, lines 3-16, Sir John Major, ibid
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to a majority of one makes you very dependent upon the whims and fancies of a handful of Members of Parliament in your own party, quite apart from the opposition you can expect from parties other than your own. 2.70 He also noted that the appointment of Lord Wakeham as Chairman of the PCC had also had a significant effect:116 It would have been difficult at the time to find anyone better than John Wakeham or more capable of being able to do it ... I mean, those who were at all queasy about [statutory regulation] would then say: Look, here is one of our own, a very respected former Cabinet minister who is actually chairing the PCC. Therefore, why dont we wait and see how well he gets on? Why rush ahead with legislation? So his appointment did have a material effect upon views in the Parliamentary party. 2.71 Asked about the do nothing option contained in the minute of 24 April 1995, Sir John gave evidence as to why Mr Dorrell was asked to explore this option, and why it was the option eventually chosen:117 We couldnt carry anything through Parliament, and at the time, I think we had a majority of I think our majority had fallen to single figures by then. So we were talking about a majority of nine and arguably the most contentious piece of legislation that anyone could have seen for quite a long time. 2.72 In his written evidence, Sir John expressed the view that the failure to implement any of the Calcutt review recommendations was a missed opportunity. Asked to elaborate on this in oral evidence, he said:118 Well, I do. I do feel that. I think many of the things that have happened subsequently that have led to this Inquiry may not have happened if we had been able to enact, and I think in the interest if the good majority of the press, the press wouldnt have fallen into the disrepute in which the criminal activities have laid it. If these changes had been made, I dont think many of the things that subsequently happened would have happened. So in that sense it was a missed opportunity. But it was a missed opportunity which was unavoidable. It wasnt a missed opportunity because we shirked it. It was a missed opportunity because we couldnt do it (emphasis added)
Reflections
2.73 The triumph of the do nothing option demonstrates the way in which the press and the politicians have worked together on questions of media policy. In this case, the context was of a reactive policy: both the Government and the industry leaders were responding to external events. First, doing nothing is both recognisable and perfectly legitimate in very many areas of policy and politics; there are many competing demands on the political agenda and public concern about press standards was, in a pre-internet age, afforded little publicity. Doing anything, particularly in this area, is always more difficult. Second, the press objected to the proposals both vociferously and comprehensively, deploying the megaphone at full volume. Third, they overtly attacked the authority of the Government to take any action at all in relation to the
2.74
116 117
p76, lines 5-21, Sir John Major, ibid p83, lines 1-7, Sir John Major, ibid 118 p83, line 18, Sir John Major, ibid
1261
press, mired as it was in sleaze allegations. Those allegations had of course been considerably amplified by the press itself; holding power uncomfortably to account, no doubt, but not necessarily disinterestedly. Fourth, without cross-party Parliamentary consensus and a powerful Government mandate, the lobbying by the press was impossible to withstand. Fifth, the PCC had appointed a Chair, in the person of Lord Wakeham, who was himself a skilled politician and advocate, and who had developed alternative proposals which appeared sufficiently plausible to be capable of being presented to the public as an adequate improvement. It is little wonder that Sir John Major, personally undermined and faced with a very small majority in the House of Commons, found himself with no alternative to the do nothing option. 2.75 I have no doubt that the success of this strategy would have left an indelible impression on the press and politicians alike.
3. Human Rights Act 1998

Introduction
3.1 The Long Title of the Human Rights Act 1998 (the HRA) states that it is designed to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights. In the preface to the White Paper Rights Brought Home, the Prime Minister explained that the HRA was intended to give people in the UK opportunities to enforce their rights under the European Convention in British courts rather than having to incur the cost and delay of taking a case to the European Court of Human Rights.119 A great deal has been written about the HRA, the debates in Parliament when the Bill was being passed, and precisely what it was intended to achieve. No such exercise is required in this context. This section of the Report seeks solely to ascertain the concerns of the press during the passage of the Bill through Parliament, and to set out the basis on which any amendments and concessions were made following lobbying efforts carried out directly or on their behalf. It is clear that the initial publication of the Human Rights Bill by the incoming Labour Government led to substantial concerns being expressed by most sections of the press. First, there was a general concern about a judge-made privacy law which the Human Rights Act in general might lead to. Initially at least, the press argued that in order to avoid this, they should be excluded from the ambit of the Human Rights Act entirely. Second, but linked to the general concern, a number of specific concerns were expressed, in particular about pre-action restraint in privacy cases. Representations were made to the effect that pre-trial injunctions should be granted in privacy cases in only the most exceptional of circumstances. The press argued that in general terms the Bill should ensure that complainants make full use of the PCC rather than the courts. As a result, what followed was sustained lobbying, and then detailed negotiations between government and Lord Wakeham, Chair of the PCC at that time. In summary, although the Government took the view that the press should not be excluded from the ambit of the HRA, these negotiations led to the enactment of section 12. This provides as follows:
3.2
3.3 3.4
3.5
3.6
119
Rights Brought Home (Cm 3782), 1997, p1
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12 Freedom of Expression (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. (2) If the person against whom the application for relief is made (the respondent) is neither present nor represented, no such relief is to be granted unless the court is satisfied (a) That the applicant has taken all practicable steps to notify the respondent; or (b) That there are compelling reasons why the respondent should not be notified. (3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. (4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to (a) The extent to which (i) The material has, or is about to, become available to the public; or (ii) It is, or would be, in the public interest for the material to be published; (b) Any relevant privacy code. (5) In this section court includes a tribunal; and relief includes any remedy or order (other than in criminal proceedings).
The Role of Lord Wakeham

3.7 Lord Wakeham, who had been a Conservative member of the House of Lords since 1992,120 became Chair of the PCC in January 1995. Given his background, and his commitment to the principles of self-regulation and freedom of the press, it would be surprising if he did not have strong personal views about the Human Rights Bill. In the event, he led support of the case the press was advancing with enthusiasm and effectiveness. Questions arise as to whether in doing so he was speaking on behalf of the PCC (as its Chair), the press as a whole, or both. On that point, Lord Wakeham said this in his evidence to the Inquiry:121 I must make it clear that throughout the discussions on the Bill, I never acted as a representative of the press. My concern was always with the future of self-regulation, and the way in which the human rights legislation might undermine it.
he was Secretary of State for Energy between 1989 and 1992, and Lord Privy Seal and Leader of the House of Lords between 1992 and 1994 121 p14, para 45, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Second-Witness-Statement-of-LordWakeham.pdf
120
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3.8
Asked about this in oral evidence, Lord Wakeham expanded as follows:122 Q: Some commentators have said that it is simply inappropriate for the chairman of the regulator, whos meant to be, at the end of the day, an impartial mediator and complaints handler, to essentially lobby on behalf of the press in respect of government decisions that might affect the press commercial interests ... A: I was never a regulator. I never said I was a regulator. I didnt pretend to be a regulator. My task was to try and raise standards in the press by means of a code and by self-regulation. You have to bear in mind that when I went there, the press had been governed previously by the Press Council, and there ... wasnt a code. We were the starting of the code. It was pretty crude when we started, and we refined it, but at no time was it a regulators job. It was a job of raising standards in self-regulation. Q: Did you speak to the press industry when the human rights bill was going through Parliament? Did you speak to representatives of the press industry? A: I cant remember doing so. I cant absolutely swear that I never spoke to a journalist at any time about it, but I certainly wasnt representing them. My concern was for the public. The Press Complaints Commission, in my view, was the best way of protecting the public and I didnt want to see it destroyed in the way that it more or less has been in the last few years.
3.9
Whether or not the PCC was a regulator in the full sense of that term, a question arises about how far Lord Wakeham as the Chair of the self-regulatory body charged with the responsibility for resolving press complaints should have been speaking out in support of the case which the press clearly espoused. He would doubtless have been aware of the position the press was taking on these issues regardless of whether he discussed them with journalists and editors. In any event, the connection between the role of the PCC in maintaining press standards and opposing the Human Rights Bill insofar as it related to the press is not immediately apparent. Other witnesses disagreed with Lord Wakehams recollection. Asked about a debate in the House of Commons during the second reading of the Bill, the Rt Hon Jack Straw MP gave evidence to the Inquiry as follows:123 Q: Then ... you make it clear that there were discussions which involved you, the late Lord Williams and Lord Wakeham ... The new clause was drafted in consultation with Lord Wakeham and representatives of the national and regional press. They have given it a warm welcome. So the upshot is that part of the explanation for the genesis of section 12, a consultation, agreement if you like, which you reach with Lord Wakeham, who may well have been speaking for a large section of the press. Is that fair? A: Yes. He was certainly speaking for a large section of the press. Whatever his position in the House of Lords, he was chairman of the Press Complaints Commission ... I mean, it wasnt a piece of private enterprise by Lord Wakeham. There would have been no purpose served in busy ministers spending their time speaking to Lord Wakeham if this was just a sort of personal foible. He had a very influential position and he was tending to speak on behalf of the press ... I worked on the basis that if I could square Lord Wakeham, Id square most sections of the press, which is what I wanted to do.
3.10
p46, line 5, Lord Wakeham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-15-May-2012.pdf 123 p36, line 14, Jack Straw, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-16-May-2012.pdf
122
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Concerns of the press and lobbying

3.11 In any event, regardless of whether he formally represented the interests and concerns of the press, it is clear that Lord Wakeham played a central role in advancing the arguments which the press would have wished to raise. On 12 January 1998 Lord Wakeham wrote to Lord Smith,124 the Secretary of State for Culture, Media and Sport, expounding his principal concerns about the Bill:125 ... there are two central problems with the Bill. The first is the issue of prior restraint and the new arsenal of weapons that will be available to the rich, the corrupt and those comfortable with the courts to gag newspapers. The second is whether the PCC should be a public authority within the terms of the Bill and therefore the sort of legal entity which the newspaper industry never intended it to be. 3.12 The issue of prior restraint is explained below: in fact, it came to the fore slightly later in the chronological sequence. The second issue is technical, but may be boiled down to this. If the PCC was a public authority within the meaning of what is now section 6 of the HRA, then it would be unlawful for it to act incompatibly with any human right. It was believed, or feared, at the time depending on ones point of view that the effect of incorporating Article 8 of the Convention into domestic law would be to create a privacy law by the back door. Subject to the application of section 6, the PCC would become bound to apply it. Lord Wakeham made two speeches in the House of Lords during the Committee stage and the Third Reading of the Human Rights Bill. In written evidence, he explained that his view was that:126 The Bill as drafted would damage the freedom of the press and badly wound the system of tough and effective self regulation that we have built up to provide quick remedies without cost for ordinary citizens. It would inevitably produce a privacy law, despite the Governments stated opposition to one. 3.14 Initially, the press through Lord Wakeham tried to obtain a complete exemption from the HRA. Lord Wakeham accepted this in oral evidence, also noting that he did not expect that this would be considered acceptable:127 Q: Did you initially seek to get the press a complete exemption from the provisions of the Human Rights Act? A: I certainly did, with absolutely no chance whatsoever of getting it through the House of Lords, but I wanted to raise the issue, which was important. I have to tell you that Parliament is in favour of strengthening restraints on the press whenever they find an opportunity, and if theres any legislation flows from the circumstances were in, I have considerable reservations as how it would get on in Parliament.
3.13
now, the Rt Hon Lord Smith of Finsbury p12, para 103, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Jack-StrawMP.pdf 126 Lords Hansard, 24 November 1997, col 771, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/LordWakeham-Exhibit-E.pdf 127 p45, lines 11-20, Lord Wakeham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-15-May-2012.pdf
125
124
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3.15
In oral evidence to the Inquiry, Mr Straw explained why Lord Wakehams assessment that he had absolutely no chance whatsoever of getting it through the House of Lords was correct:128 ... Lord Wakeham went on to say that there was a second issue, which he described as far more serious, which was whether the PCC should be a public authority within the terms of the bill. In fact, the PCC was not a public authority within the terms of the Bill, but what the PCC were trying to secure was a situation where the media were outwith the impact of the Bill so you just drew a ring around them somehow and they be excluded from any adjudication on the conflict between Article 8 and Article 10 or anything else. Now, that was just impossible to meet, and I had to explain that to them, and we didnt meet it. Its also simply incorrect for anyone now to say that nobody knew that a Human Rights Act would lead to a law of privacy. Of course they did. They said so. But as I brought out in my Gareth Williams lecture, we all knew it was going to do that. That was discussed endlessly in Parliament.
3.16
I now turn to the issue of prior restraint, in relation to which Lord Wakeham also made strong representations. What this issue amounted to concerned the legal test the High Court should apply in granting without notice injunctions in privacy cases: in essence, Lord Wakehams contention was that it should be more difficult for privacy claimants to obtain such injunctions than would ordinarily be the case because the right to freedom of expression would always be in play.129 Here, it is fair to point out that the reasons he advanced back in 1998 were broadly similar to the reasons he gave to the Joint Committee on Privacy and Injunctions in 2011:130 My concern was to stop privacy cases by and large coming to the courts at all. I wanted people who felt they were done down by the press to go to something less than court. You only have to look in the papers the other day; it cost a footballer half a million pounds to bring a privacy action, which he lost. That is of no use to the vast majority of my old constituents ... I wanted section 12 to try to encourage the use of the Press Complaints Commission and therefore people would not come to court nearly as much so we could deal with it....
3.17
On this issue Lord Wakeham received a sympathetic ear from Government. The Inquiry heard evidence that extensive negotiations took place between Lord Wakeham, Lord Smith and Mr Straw who was then the Home Secretary. Mr Straw explained in oral evidence to the Inquiry why he took the view that these negotiations were both necessary and appropriate:131 I was very anxious to achieve a consensus on this legislation because I have a principle which is that major constitutional change should only go through if there is some kind of greater legitimacy, either through a consensus in Parliament or through a referendum, and the Conservatives were opposing the bill at second reading and I was anxious to see whether we could reach an accommodation so we could get their endorsement to it. Also I thought a part of what Lord Wakeham and the PCC were saying was reasonable. [On the issue of prior restraint] ... I thought they had a point there.
p32, lines 8-25, Jack Straw MP, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-16-May-2012.pdf 129 the text of section 12 is set out above. It is a procedural provision which applies only to the grant of interim injunctions where the proposed respondent to the application is neither present nor represented. The test in s12 is higher than the legal test which ordinarily applies to the grant of such injunctions 130 hearing of Joint Committee on Privacy and Injunctions, Monday 17 October 2011 131 p31, lines 17-25, Jack Straw MP, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-16-May-2012.pdf
128
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3.18
During the Committee stage debate in the House of Commons,132 Mr Straw explained that the need for a more onerous legal test reflected a principle already recognised by the European Court of Human Rights:133 The dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest. Mr Straw added that in the light of this principle, the Government believed that:134 The courts should consider the merits of an application when it is made and should not grant an interim injunction simply to preserve the status quo ante between the parties.
3.19
Lord Wakeham gave evidence as to precisely how section 12 of the HRA came about, including the nature of his involvement in its genesis. In written evidence, he explained as follows:135 ... I believe Jack Straw understood ... [my views] more clearly ... When the Bill moved from the Lords to the Commons in the spring of 1998, he moved swiftly to try to deal with some of the issues that were raised and what became Section 12 was the result. Jack worked closely with me on the wording of the amendment, and we eventually agreed it at a hastily arranged meeting at Heathrow Airport. I believe Section 12 was the best compromise that was likely to have been achieved in the circumstances. It tried to tackle the issue of prior restraint and in Jack Straws phrase in the House of Commons, preserve self regulation. But it has as the recent rows over super-injunctions have shown only been partially successful.
3.20
The evidence of Lord Wakeham and Mr Straw therefore appears to be consistent. Mr Straw also accepted that the Government agreed to the inclusion of section 12 having regard to the concerns of the press. On 2 July 1998 the Bill had reached its second reading in the House of Commons. Mr Straw was asked at the Inquiry about a debate which took place on that day:136 Q: You were debating what was then clause 13, which became section 12, and ... you told the Commons: As the Committee will know, there was concern in some sections of the press that the bill might undermine press freedom and result in a privacy law by the back door. And then you say that was not the governments view and youve dealt with the issue. A: Yes. Q: But on the issue of prior restraint and what became section 12, the third paragraph, you say: We recognise the concerns expressed in the press. As I have made clear, for example in respect of the bills impact on the churches, we are anxious to deal constructively with them. In the light of those concerns we decided to introduce a new clause specifically designed to safeguard press freedom. We thought long and hard about it.... A: Yes.
315 HC Official Report (6th series) col 536 (2 July 1998). in Application 13585/88: Observer and Guardian v United Kingdom (1991) 14 EHRR 153, para 60 134 315 HC Official Report (6th series) col 536 (2 July 1998). 135 p15, paras 46-47, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Second-Witness-Statement-ofLord-Wakeham.pdf 136 p36, line 14, Jack Straw, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-16-May-2012.pdf
133
132
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3.21
Even so, it would be going too far to conclude that the Government introduced what became section 12 on account of the concerns of the press and for no other reason. Taking Mr Straws evidence as a whole, he made it clear that there were other reasons for raising the bar in relation to the grant of without notice interim injunctions. Press concerns may have been a factor to which the Government had regard, and there may have been a form of compromise as to the precise wording of the provision; this appears to have been a case in which the thrust of overall Government policy and the interests of the press came into alignment. I do not overlook the evidence of Mr Blair who placed a somewhat different interpretation of these events:137 Q. Was it the position that News International I suppose together with everybody else were lobbying for complete press immunity from the Human Rights Act? A. Yes, thats right. They wanted no suggestion that you would move outside the bounds of the PCC and self-regulation. Q. And were you generally supportive of that position? A. Yes, that was I mean, my my view was that if you were to deal with this, you had to deal with it head on, as it were, not through the Human Rights Act, which would be a sort of side way of dealing with it. Also, at that time, I think Im right in saying it was Lord Wakeham who was head of the PCC, who was something actually I thought was doing quite a good job of that, and the PCC were pretty fierce on this, on behalf the whole of the media, really, not any one particular part of it. Q. Was the position reached that following, if I can put it in these terms, pressure from Lord Irvine of course then your Lord Chancellor, who I think was responsible for piloting the act through Parliament generally, certainly of course through the Lords that he persuaded you that your position was incorrect and we ended up with a compromise, which we see in the form of Section 12 of the Act? A. Thats right. Q. In terms, though, of what your position was, what was the problem in allowing a privacy law to develop incrementally through Article 8, which is what would have happened indeed has happened in any event with the introduction of the Act in the form in which we now see it? A. As I say, I felt we should still be with the self-regulation argument, and I knew that we were going to have quite a big battle over it if we changed that position. In the end, we did come to a compromise, and I think that compromise was perfectly sensible, by the way.
3.22
3.23
I can quite understand how from Mr Blairs perspective, section 12 appeared to be a compromise; he after all was supportive of the press case for complete exemption from the scope of the HRA. But the evidence of Lord Wakeham and Mr Straw clearly demonstrates that complete immunity was unrealistic and unacceptable, not least from the point of view of public opinion.
pp96-97 lines 4-16, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-28-May-2012.pdf
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Aftermath
3.24 A number of academic commentators have taken the view that the press concerns about the application of the HRA and any satisfaction they may have gained from section 12 were misplaced. They argue that irrespective of the HRA, judges were already developing the common law of breach of confidence to protect privacy. They also argue that the Government did not intend by section 12 to include any provision which required the courts to do more than apply the principles set out in the Convention, and that it would have been pointless to attempt to do so in any event, as the UKs international obligations would permit persons who took the view that domestic law inadequately protects their rights to bring a claim against the UK in the European Court of Human Rights.138 However, evidence given to the Inquiry by a number of media lawyers was to the effect that the procedural provisions of section 12 have, in fact, afforded considerable protection to the press. Mark Thomson, of Atkins Thomson Solicitors, put it this way:139 It is important to note that section 12 of the HRA has made the threshold tests for interim injunctions harder to obtain than before in effect, a potential claimant has to show that he or she would be more likely than not to succeed at trial on proving the threatened publication is unlawful. Despite what the press say, for an interim court measure, that is a high threshold, and one which is meant to reflect the importance of freedom of speech. This point was recognised by Jack Straw and Professor Phillipson in their evidence before the Select Committee. 3.26 Mr Straw gave similar evidence to the Joint Committee on Privacy and Injunctions, on 17 October 2011:140 Lord Wakeham has kindly reminded me of what I said [at the time] ... it was words to the effect that the introduction of section 12 should make these interlocutory injunctions pretty rare, and people in general would go to the Press Complaints Commission. We can argue about the extent to which they are relatively rare. There has been a lot of publicity about individual ones, but they are fewer in number than is imagined. 3.27 Nonetheless, it is necessary to keep this in perspective. As already pointed out at paragraph 3.18 above above, section 12 of the HRA broadly reflected principles laid down by the European Court of Human Rights in Strasbourg.
3.25
Reflections
3.28 It is clear that the press in general, and Lord Wakeham in particular, lobbied heavily against the Human Rights Bill insofar as it related to the press and related freedom of expression issues. It is also clear that section 12 of the HRA was seen at the time as a form of compromise between competing interests. Even so, the robust evidence received from Mr Straw suggests that, although press/Wakeham lobbying had an influence on the ultimate course of events, there were other sound reasons for enacting section 12.
Lester A and Pannick D, Human Rights Law and Practice, (2009), P84. p7, para 27, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-MarkThomson.pdf 140 p7, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Exhibit-3-to-Mark-Thomson.pdf
139
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3.29
Section 12 did not of course create a complete immunity for the press from the ambit of the HRA. Following the comment that Lord Wakeham made to the Joint Committee on Privacy and Injunctions to the effect that he was disappointed that section 12 had not achieved what had been hoped and that he wanted to encourage the use of the PCC,141 there was the following exchange:142 Q (Lord Greenford): Do you think you succeeded in making freedom of expression superior to the right of privacy? Lord Wakeham: No, I do not. I think there was a balance, but the balance was not even-steven. What I thought I had achieved was what Jack Straw said in the House of Commons when he introduced section 12; I thought he got it exactly right at that time. It has not worked out like that, and I am disappointed.
3.30
On the other hand, Professor Gavin Phillipson told the Joint Committee:143 Can I just add that there was nothing in section 12 to suggest that cases should be steered off to the Press Complaints Commission? Section 12 tells the courts what to do. It does not say anything about whether or not someone would prefer to go to the PCC and there is nothing in it to say that injunctions will be rare. It simply says that injunctions will be granted only if the court thinks that the claimant has the stronger case. If the claimant has the stronger case they will get the injunction.
4. Data Protection Act 1998

Introduction
4.1 On 10 May 2006, the Information Commissioner published his report to Parliament entitled What Price Privacy? The Unlawful Trade in Confidential Personal Information.144 The background to, and the contents of, this report and the follow-up report entitled What Price Privacy Now? are both covered in greater detail in Part H above in the context of a broader discussion of the work of the Information Commissioner. This section of the Report is devoted to narrower questions relating to the way in which s77-78 of the Criminal Justice and Immigration Act 2008 came to be enacted, but not implemented and, in particular, how far press influence was brought to bear on Government policy in relation to these amendments to the Data Protection Act 1998 (DPA). In this context, it is unnecessary to address any, save one of the issues raised in the Information Commissioners reports to Parliament. The first report, What Price Privacy?, made the case for increasing the maximum penalty for the offence of misuse of personal data in breach of s55 of the DPA from a fine to a custodial sentence of two years. The Foreword to What Price Privacy? encapsulated the matter thus:145 The crime at present carries no custodial sentence. When cases involving the unlawful procurement or sale of confidential personal information come before the courts, convictions often bring no more than a derisory fine or a conditional discharge. Low
para 3.16, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Exhibit-3-to-Mark-Thomson.pdf p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Exhibit-3-to-Mark-Thomson.pdf 143 ibid 144 pp1-48, Information Commissioners Office, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Exhibit-CG8.pdf 145 pp4-5, ibid
142 141
4.2
1270
penalties devalue the data protection offence in the public mind and mask the true seriousness of the crime, even within the judicial system. They likewise do little to deter those who seek to buy or supply confidential information that should rightly remain private. The remedy I am proposing is to introduce a custodial sentence of up to two years for persons convicted on indictment, and up to six months for summary convictions. The aim is not to send more people to prison but to discourage all who might be tempted to engage in this unlawful trade. 4.3 In order to give effect to these recommendations, primary legislation would need to be enacted to alter the maximum penalties laid down in s60 of the DPA for breaches of s55. The ICO noted that a follow-up report would be published within six months in order to monitor progress on the recommendations made. At least initially, the Government appeared to be amenable in principle to introducing a custodial sanction in line with the ICOs recommendation. The Foreword of What Price Privacy? concluded with the observation that preliminary discussions with the Government had been encouraging:146 These concerns, and the need for increased penalties, have been raised with the Department for Constitutional Affairs. The positive response that I have received so far is encouraging. These are early and welcome indications of progress on the possibility of Government action. 4.5 On 24 July 2006, the Department for Constitutional Affairs (DCA) published a consultation paper on increasing the penalties for breaches of s55.147 This sought views on whether the proposed custodial sentences would act as an effective deterrent to those who deliberately or recklessly misused personal information. The consultation period ended on 30 October 2006.
4.4
Responses to the consultation document

4.6 The majority of respondents welcomed the introduction of custodial sentences. They indicated that the introduction of such sentences would provide a greater deterrence to potential offenders, provide public reassurance that offenders would receive the appropriate sentence, and achieve parity with a number of disparate pieces of legislation which dealt with similar offences. However, although the ICOs recommendations were not specifically targeted at the press, it was the press that co-ordinated the vociferous formal objections to them. In response to the consultation, the press strongly argued that the introduction of such penalties would have a chilling effect on journalism and that this was contrary to the principle of freedom of expression. Notwithstanding these objections, the Governments position remained that the introduction of custodial sentences was both appropriate and in accordance with the views of the majority of respondents to the consultation document. By the time the ICOs follow-up report, What Price Privacy Now? The First Six Months Progress in Halting the Unlawful Trade in
4.7
4.8
p5, Information Commissioners Office, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ExhibitCG8.pdf 147 Department for Constitutional Affairs, Increasing penalties for deliberate and wilful misuse of personal data, http:// www.dfpni.gov.uk/consultation_misue_of_personal_data.pdf
146
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Confidential Personal Information148 was published in December 2006, the ICO considered itself to have achieved some success. Not only had the consultation paper received a majority of favourable responses, but What Price Privacy Now? had attracted a significant amount of public attention and media coverage. The follow-up report concluded that the ICO would:149 ...continue to press the government to introduce the option of a prison sentence and see this progress report as supporting that goal. 4.9 On 7 February 2007, the Secretary of State for Constitutional Affairs, Lord Falconer of Thoroton QC, made the following statement in the House of Lords:150 I have today published the Government response to the consultation paper Increasing Penalties for Deliberate and Wilful Misuse of Public Data (C/P9/06) The response sets out how we will reform section 60 of the Data Protection Act 1998 to ensure that there is robust protection for personal data, and to strengthen individuals right to privacy. The Government believe that the existing financial penalties are not sufficiently protecting peoples personal data. In summary, following careful consideration of the responses received, we are proceeding with the proposals to introduce custodial sentences to section 60 of the Data Protection Act. The Government are clear that custodial penalties will be reserved for the most serious breaches of the Act. We will seek to introduce an amendment to the Act as soon as parliamentary time allows.
The Criminal Justice and Immigration Bill

4.10 By clause 75 (later clause 129) of the Criminal Justice and Immigration Bill, it was proposed to amend s60 of the DPA to increase the penalties for offences under s55 of the Act, to allow for a period of imprisonment of up to six months following summary conviction and up to two years following conviction on indictment. It is important to note that, at that stage, the Government did not have in mind any other alteration to the law such as the introduction of a subjective element to the existing public interest defence.151 The Bill received its Second Reading in the House of Commons on 8 October 2007, and at that stage Clause 75 did not appear to be generating any serious controversy. As at 27 November 2007, the Government was still actively rejecting any suggestion that this clause could have a chilling effect on the press, and were pressing ahead with the relevant amendments.152 However, in early 2008 it became clear that the press was organising a serious and concerted campaign against the proposals. The Rt Hon Jack Straw MP was Secretary of State for Justice during the relevant period.153 His written evidence records that he received a number of representations from members of the press particularly in January 2008, and that a number of meetings to discuss the press concerns were held.154
4.11
4.12
I
148
Information Commissioners Office, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-CG9. pdf 149 What Price Privacy Now?, 13 December 2006, p30, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Exhibit-CG9.pdf 150 p1, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RTF-Exhibit-30.pdf 151 pp42-43, lines 24-6, Jack Straw, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-16-May-2012.pdf 152 House of Commons General Committee, Session 2007-2008, 14th Sitting, 27 November 2007, Cols 585-587, http:// www.publications.parliament.uk/pa/cm200708/cmpublic/criminal/071127/pm/71127s02.htm#07112811000157 153 he was appointed to that post in June 2007 154 paras 83-84, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Jack-StrawMP.pdf
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4.13
By February 2008, and following continued vociferous representations from the press, the Government was proposing to withdraw clause 75 (now clause 129) completely. The ICO expressed deep regret at this proposed course of action.155 A letter from Mr Richard Thomas dated 4 March 2008 noted that: The representations against the measure from media organisations have not been convincing. In effect, they are arguing against a criminal offence which has been on the statute for many years. They object to tougher sanctions against activities which they say do not exist or are not widespread. The louder their protests against stronger penalties, the more it suggests questionable practices. The offence is only committed when there is deliberate or reckless disclosure of personal data without the consent of the organisation which holds it. The implication of their case is that they wish to be able to break the law... This is a pernicious, and largely hidden, illegal market and I am determined to stop it.
4.14
Mr Thomas met the Prime Minister on 5 March 2008 to discuss the proposed withdrawal of clause 75. Mr Thomass notes of the meeting record that the Prime Minister accepted that a strong sentence is needed to deter all those involved, but at the same time, he is concerned to strike the right balance with protecting freedom of the press, especially in relation to legitimate investigative journalism. Now that some time has been bought (between Committee and Report stages in the Lords) he wants a compromise position to be achieved to minimise media concerns.156 The compromise which was in the end achieved saw the replacement of clause 75 with two provisions, each of which required secondary legislation to be activated: the first providing an additional defence to the offence in s55 of the DPA as to subjective belief in the journalism in question being in the public interest; and the second providing for an increase in the maximum penalties under s55 to terms of imprisonment in line with the original proposals, but only after consultation. These provisions were enacted in the form of ss77 and 78 of the Criminal Justice and Immigration Act 2008 and, as has already been noted, the relevant secondary legislation has not as yet been introduced. The Governments official position therefore changed radically during this period. It is clear that pressure from the press as a whole was brought to bear, but cause and effect is not necessarily established by narrating the relevant sequence of events. The influence of press lobbying, and the Governments reasons for their change of policy, therefore fall to be examined.
4.15
4.16
Evidence of lobbying behind the scenes: reasons for the policy change
4.17 Not merely did representatives of the press makes strong public representations against the introduction of a custodial sentence, but a number of significant meetings took place behind the scenes. The issue was clearly one which the press had taken to heart, and the nature of the relationship of a number of key players with politicians was such that ready access was available.
155 156
pp1-3, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJT-Exhibit-39.pdf p1, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJT-Exhibit-40.pdf
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4.18
The Prime Minister, Mr Brown, dined with Les Hinton, Murdoch MacLennan and Paul Dacre on 10 September 2007. Mr Hinton, then Executive Chairman of News International, did not give evidence to the Inquiry. Mr MacLennan gave evidence on 10 January 2012 but was not asked to deal with this occasion. The accounts I received from Mr Brown and Mr Dacre are different in emphasis if not in substance. Mr Browns account of the dinner was as follows:157 A. I remember the issue. I told them, as we started the dinner, what my own view was. I didnt ask them for their view, Im afraid. Maybe I should have. I told them what my view was, that there should be a public interest defence, and therefore it wasnt a question of them lobbying me. I was informing them that this was my view, but that Michael Wills, who was an excellent minister, and Jack Straw, who was doing a great job on this, were consulting people about how we could implement this in a way where there was a public interest defence but we werent going to back off entirely the potential need for legislation. Q. Mr Dacres account doesnt quite match that, Mr Brown. Under tab 34, he gave a speech to the Society of Editors conference on 9 November 2008. So its about 16, 17 months after the relevant date. A. Yes. Q. He says: About 18 months ago [he means on 10 September 2007] I, Les Hinton of News International and Murdoch McLellan [sic] of the Telegraph, had dinner with the Prime Minister Gordon Brown. On the agenda was our deep concern that the newspaper industry was facing a number of very serious threats to its freedoms. Then he said: The fourth issue we raised with Gordon Brown was a truly frightening amendment to the Data Protection Act. This is the amendment A. I dont think theres any disagreement in these accounts. He had it on his agenda for the meeting. They raised it, but I told them as they raised it: Look, this is my view. I didnt say, Im waiting to hear your view; I told them: This is my view. I remember this distinctly. I had already made up my mind before I went into the meeting, and I told Jack and Michael that there should be a public interest defence and that we should probably postpone the implementation of this clause. Look, at that time, of course, we didnt have all the information we now have about the abuse of this of data by the media. At that time, there was no suggestion that there was anything other than what was called the rogue hacker. But again, my instinct is still the same, that there ought to be a public interest defence. I know its uncomfortable, because you are balancing off two freedoms, as we said at the beginning. You have this right that I would defend for people to have privacy, and you have this right of the media, I would say the individual, to express themselves and for the media to do this through a freedom of speech and therefore a willingness or ability to investigate things that are wrong, and you are balancing off these two freedoms. It seemed to me that we may end up with the custodial sentences, and that was an option that was left to us. We said wed come back to this, but at that time we thought that let us look at whether a public interest defence can be introduced into this legislation, which is what we did.
pp74-76, lines 10-19, Gordon Brown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Morning-Hearing-11-June-2012.pdf
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4.19
During the course of his oral evidence to the Inquiry, Mr Dacre touched on his lecture to the Society of Editors in 2008 but was not asked to address in detail the exact circumstances in which the DPA issued was raised and discussed on this occasion; there was evidently not thought to be an issue about it at that time. His understanding was that Mr Brown was hugely sympathetic to the industrys case and promised to do what he could to help.158 Mr Browns recollection was that the initiative came from him, rather than that he was responding to press influence or pressure. Mr Dacres was more along the lines that he and his press colleagues had proved to be persuasive. A few questions perhaps arise. First, if Mr Brown was as sympathetic to the press case as Mr Dacre claimed, why was the Government were still pressing ahead with a Bill introducing a custodial sentence without a revised public interest defence as late as 27 November 2007? Secondly, Mr Browns testimony did not touch on the issue of the custodial sentence which was, after all, at the centre of the press concerns; he referred instead to the need for a public interest defence. This overlooks the fact that s55 of the DPA in its un-amended form already contained such a defence, admittedly one cast in objective form. Lastly, Mr Browns assertion that, in September 2007, his knowledge as to the extent of data abuse was somewhat limited (we didnt have all the information we now have about the abuse of this of data by the media. At that time, there was no suggestion that there was anything other than what was called the rogue hacker)159 may be a mis-recollection of the background events that triggered the move to amend the legislation. The contents of the ICOs two reports were the reason for Parliament debating amendments to the statute in the first place: there was no doubting what they said. The rogue hacker issue was relevant to the standing of the press and the extent to which journalists were likely to break the law but it had no bearing on the Motorman case: there was no question of increasing the penalty for offences under RIPA and both Clive Goodman and Glenn Mulcaire had, in fact, been sentenced to terms of imprisonment. Accordingly, the impact of the private dinner of 10 September 2007 on the evolution of Government policy at this time is difficult to tell. Mr Dacre clearly believed that it made a difference; an examination of the chronology suggests that official Government policy remained unchanged. Responsibility for the policy and the navigation of the legislative amendments through Parliament lay with Mr Straw as Secretary of State for Justice. As has been pointed out, and as was scarcely unusual, Mr Straw was also subject to behind-the-scenes lobbying by senior members of the press, including Mr MacLennan, Mrs Brooks, Guy Black and Mr Dacre, the latter of whom Mr Straw had known from their university days and with whom he enjoyed a respectful relationship.160 Mr Straws written evidence recorded that as a result of the representations made by the press (which included those received at a meeting that he had with Mr Dacre, Mr MacLennan and Mrs Brooks), and despite the Governments commitment to bringing in custodial sentences, he proposed to ministerial colleagues that the relevant clause should be withdrawn from the Bill to enable all parties to work out a compromise.161 Interestingly, at no stage during his written or oral testimony did Mr Straw indicate that he had had any conversation with the Prime Minister which referenced the latters preference for a public interest defence.
4.20
4.21
4.22
4.23
4.24
4.25
see the full text of Paul Dacres speech: http://www.pressgazette.co.uk/node/42394 pp75-76, lines 24-3, Gordon Brown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-11-June-2012.pdf 160 para 32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Jack-Straw-MP.pdf 161 para 85, ibid
159
158
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4.26
In oral evidence, Mr Straw explained why the Governments position changed. Having referred to meetings he had had with various parties, Mr Straw was asked:162 Q: If we can look at the text of the letter dated 12 February 2008, you write to Mr. Dacre. Under the heading Data Protection Act, you say: Were not proposing to criminalise any conduct which is currently against the law. However, we do understand your and the medias concerns more generally about the introduction of custodial sentences for breach of section 55. We have no wish to curtail legitimate and responsible journalism, and when the proposed penalties were designed it was not considered that they would have that effect. Were not aware that section 55 has caused any problems such as a chilling effect since the DPA came into force. The penalties were proposed and strongly argued for by the Information Commissioner to strengthen the protection of individuals rights to respect for their privacy... But I have reviewed your proposals in light of the important points which you and others have made. As I explained when we met, I was increasingly minded to consider inclusion of provision for the reasonable belief of someone at the time an offence was committed. I understand that there will still be considerable anxiety about the potential impact of this measure and that there is, therefore a case of reconsidering it in slower time. Then you say Alongside this, I am faced with the overwhelming need to achieve royal assent for the bill by 8 May 2008, when the existing legal restrictions against prison officers taking industrial action otherwise terminate. Taking all these factors into account, Im making a further recommendation to colleagues and I will be back in touch. So youre faced here, Mr. Straw, with a double pincer movement. On the one hand, you have the press stirring up trouble, making the arguments youd expect them to make, and we can analyse those in a moment, and you would say, perhaps even more importantly, you had to get the bill through by a particular date because there were other provisions in it which were absolutely vital. Is that it? A: Yes... Im afraid that other issues then became subordinate to it. Thats life, thats politics. ... Q: Mr. Straw, we understand this is, as it were, a classic case study in realpolitik. Royal Assent had to be obtained by a certain date for reasons extraneous really to the merits of section 55. Had it not been for that consideration and/or the pressure you were under by the press, would your policy position have been either adhere to the original position, in other words just up the sentence to include a custodial penalty, or were you in fact persuaded by the merits of the argument that the subjective/ objective test should be introduced? A: .... Id like to say that even in slower time I would have made the same judgment about the subjective defence that was inserted, but I cant say for certain ... I am absolutely clear that the two went together, and I mean I regret the fact that that I didnt bring in the amendment to section 55 before the election, and I think it ought to have been brought in by now, but there we are
pp46-51, lines 13-25, Jack Straw, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-16-May-2012.pdf
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The immediate cause of the compromise, which ultimately was fashioned in the form of ss77 and 78 of the 2008 Act, was the political reality of the need to enact the whole statute before 8 May 2008, in the face of a threat of industrial action by prison officers. Mr Straw in particular formed the political judgment that this could only be achieved by compromise, notwithstanding that this had, at least, the appearance of yielding to pressure. Although the Government had a sufficient majority in the House of Commons to force through this legislation in its original form, it had never had a majority in the House of Lords, and there clearly was a risk that the Peers might decide to block or delay the Bill on this very point.163 By then, the press had very publicly made it an issue, which was no doubt part of their overall strategy. Mr Straw was also asked to explain whether he had been persuaded by the logic and overall merits of the press case, or whether political imperatives predominated. Understandably, and very frankly, Mr Straw found that a difficult question to answer given the difficulty in disentangling cause from effect: as he put it, because I became persuaded, if you follow me, so you have to work out why you were persuaded....164
4.28
Reflections
4.29 The evidence leaves no room for doubt that the press brought its full resources and influence to bear on an issue about which it clearly felt very strongly. In that respect, it was acting no differently from any other interested party with political influence in relation to proposed policy or legislative changes. Their case was highly stated, and to a degree they had the Government over a barrel on timing. The merits of the argument are dealt with in detail in Part H. The dinner engagement of 10 September 2007 must have made it clear to Mr Brown just how seriously the press was prepared to campaign on this issue, and one way or another he made it clear to his interlocutors that he might be prepared to move on aspects of the policy. Having said that, the DPA amendments was only the fourth item on Mr Dacres agenda and, as has already been pointed out, the Government adhered in the short term to its policy. But Mr Brown would have been aware of how high the stakes had become, and that if the passage of the amendments through Parliament became problematic, for any reason, then he was taking a significant political risk. These risks became more acute in January 2008 as pressure mounted, press lobbying intensified and deadlines loomed. Furthermore, there was at least some presentational attraction in the argument that the increase in the sentencing options should be matched by a broadening of the scope of the public interest defence. However, if anxiety about the passage of the Bill prior to 8 May 2008 might explain the compromise at that time, it does not explain why in the two years that followed the passage of the legislation until the general election, the legislation was not, in fact, commenced. Nobody has suggested that the policy had changed because something had happened to cause the Government to consider that the legislation had been misconceived. A more plausible explanation may be that the impetus that had been provided by the What Price Privacy? reports had been lost and, for understandable reasons, the fast approaching general election meant that a further battle with the press over implementation was the last thing that the Government wanted.
4.30
4.31
4.32
p50, lines 2-19, Jack Straw, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-16-May-2012.pdf 164 p50, lines 3-4, ibid
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I am not in a position to reach a decision as to the reasons why, four years on, legislation that Parliament saw it fit to enact has still not been commenced. Its commencement is now said to be dependent on the recommendations that I make notwithstanding that the focus of the ICO is not on journalists but others who commit egregious breaches of the data protection legislation.
5. Communications Act 2003

Introduction
5.1 The Communications Act 2003 (the 2003 Act) represented a major and controversial landmark in New Labours media policy. Its main features in relation to plurality and media ownership have already been outlined earlier in this Report.165 The Act had a protracted legislative history covering a wide array of media issues. This sub-section of the Report focuses on the genesis of those parts of the Act which relate to newspaper ownership, particularly foreign ownership, and cross media ownership involving national newspapers and terrestrial television. So far as terrestrial television is concerned, for reasons which will become clear, the focus is on Channel 5. In particular, this sub-section seeks to examine the relationship between politicians and the national press as it relates to the legislative process. Legislation was considered and in due course enacted in the context of a rapidly changing media landscape. Digital media and satellite television, in particular, were both growing prodigiously. At the start of the story, the position was that (save for EU and EEA countries) foreign ownership of, inter alia, analogue terrestrial television was prohibited.166 Moreover, cross media ownership was the subject of quantitative limits including a rule which stipulated that no proprietor of a national newspaper could be a participant with more than a 20% interest in a body corporate which was the holder of a licence to provide a Channel 3 service, or Channel 5, or a national radio service.167 Consequently, Rupert Murdoch, could not have acquired Channel 5, had it been for sale, on not just one but two separate regulatory grounds: the ban on foreign ownership and the 20:20 rule. By the time that the 2003 Act became law, the position on both fronts had been reversed. There was no ban on foreign ownership and the 20:20 rule, insofar as it applied to Channel 5, had been dropped. It is true that a public interest plurality test had been inserted which would have had to be applied to any bid by Mr Murdoch for Channel 5 but that was only as the result of determined campaigning against the Government by Lord Puttnam. The regulatory door had been opened, by the Labour Government, for Mr Murdoch, amongst others, to bid for the terrestrial channel, if it came up for sale. How did the change come about? Is there any merit in the suggestion (made at the time) that there was a deal, between Mr Murdoch and the then Labour Government?168 What influence, if any, did the media have on this policy? These are the issues to be explored. Many of the arguments deployed by diverse interests during the course of the consultations and debates which took place remain pertinent to the question of media plurality today but are not fully explored here. Current and future plurality issues are considered later in the Report.169
5.2
5.3
I
5.4
Part C, Chapter 4 Para 1, Part II, Sch 2, Broadcasting Act 1990 167 Para 2, Part IV, Sch 2, Broadcasting Act 1990. Para 5(a) afforded the Secretary of State the power to vary the percentage by Order. 168 Owen Gibson, http://www.guardian.co.uk/media/2002/may/10/broadcasting.politics; pp11-12, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ53-to-Witness-Statement-of-Tessa-Jowell2.pdf 169 Part I, Chapter 9
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The Legislative Process

5.5 The development of policy on media ownership and the resulting legislation which gave life to the policy, rested jointly with the Department for Culture, Media and Sport (DCMS) and the Department for Trade and Industry (DTI). The Secretary of State for Culture, Media and Sport was initially Chris Smith, now Lord Smith, and, later, Tessa Jowell. Stephen Byers, and later Patricia Hewitt, were their counterparts at the DTI. Tony Blair was consulted at key stages and was involved in the decision making on a number of issues as to the direction of the legislation. Striking features of the legislative process were both the length of time it took and the extensive consultation, scrutiny and debate which occurred, each indicators of the importance and sensitivity of the subject matter. A Communications White Paper A New Future for Communications Cm 5010 (the White Paper) was published in December 2000 by Lord Smith and Stephen Byers but the Act did not receive Royal Assent until 17 July 2003. In between there were extensive consultations, a draft bill published in May 2002, pre-legislative scrutiny by a Joint Committee (described by Ms Jowell as a relatively unusual process), as well as considerable debate in both Houses, notably consideration of a number of amendments by the House of Lords.170 Of some significance is the fact that Ms Jowell felt it necessary, shortly after her appointment as Secretary of State for Culture, Media and Sport, to ask Mr Blair in terms whether or not he had reached a deal with Mr Murdoch on the reform of cross media ownership rules. It demonstrates that even within the Cabinet there was suspicion that an arrangement might have been reached:171 Q. Can I start by asking you whether you had any conversations with the prime minister of the time when you took up the portfolio? A. Yes, I did. From memory, it was, I think, the day after or within a couple of days of being appointed, once I had had time to assess what the priorities were for me as an incoming Secretary of State, what was in the in-tray. ... I saw the Prime Minister, as I say, within a couple of days of my appointment, and I had a conversation with him which was, I think, necessary, and I asked him whether or not any deal had been done with Rupert Murdoch on the reform of the cross-media ownership rules. He gave me an absolute assurance, which I completely accepted, that there had been no prior agreement, so that it to a great extent, I had no constraints on the conclusions I might reach... 5.8 Mr Blair confirmed Ms Jowells account of the conversation and that there was no implied deal with Mr Murdoch. He was not surprised by his Ministers question, a fact which says something at least about contemporary perceptions about the relationship between Mr Murdoch and Mr Blair:172 Q. Were you surprised that she asked you that question?
170 171
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5.7
p4, p8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Tessa-Jowell-MP.pdf pp3-4, Tessa Jowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-21-May-2012.pdf 172 pp106-107, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-28-May-2012.pdf
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A. Not particularly, I mean, you know, were talking 2002, are we, around about? Yeah. By then, this issue to do with me and Rupert Murdoch and so on, so it didnt surprise me that she asked that question. 5.9 Throughout there was a good deal of lobbying by interested parties. Amongst the many lobbyists were News International and BSkyB. Views were received through written submissions, formal meetings, if requested, correspondence and participation in conferences and seminars.173 News International contended that competition law was all that was required adequately to regulate the industry:174 They want all restrictions on foreign ownership removed and would prefer media markets to be regulated solely through competition legislation, which they felt could be further improved by the removal of the special newspaper regime that currently exists. 5.10 News International was not alone in their view. All broadcasters, except Channel 4, maintained that there should be no restriction on ITV/Channel 5 joint ownership save for competition law.175 Bloomberg LP forcefully pressed the case for the removal of the foreign ownership rules,176 as did Telewest. DMGT complained, via a letter to Charles Clarke, then Minister Without Portfolio and Party Chairman, about the competitive disadvantage which it felt arose from the domestic regulatory regime:177 The fact is that foreign media companies are able to use the more relaxed regulatory climate of their home countries to build the kind of powerful domestic base that enable them, through acquisition, to become major global players. The irony is that these foreign firms are then able to acquire major British media companies that are denied to the Daily Mail & General Trust an all British company because of this countrys regulatory climate. It contended: For the future, DMGT wants clear, consistent rules and an open and transparent regulatory environment...
Policy objectives
5.11 The policy objective was to: preserve plurality of media ownership while not placing unnecessary and unreasonable restrictions on growth and the workings of the market.178 The key principles were described as being: ensuring universal access to a choice of high quality services; deregulation to promote competitiveness and investment; self-regulation wherever appropriate, backed by tough measures to protect plurality and diversity; and ensuring that public service principles remain at the heart of British broadcasting.179
pp7, 9-10 (a list of those with whom meetings were held), http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/05/Witness-Statement-of-Tessa-Jowell-MP.pdf 174 Tessa Jowell, https://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ7.pdf; see also News Internationals full response to the White Paper, pp2 9, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/05/Exhibit-TJ19-to-Witness-Statement-of-Tessa-Jowell.pdf 175 p3, Tessa Jowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ20.pdf 176 Bloombergs consultation response to the White Paper, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/05/Exhibit-TJ25-to-Witness-Statement-of-Tessa-Jowell.pdf 177 pp1-2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ30-to-Witness-Statement-ofTessa-Jowell.pdf 178 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ30-to-Witness-Statement-of-TessaJowell.pdf 179 pp2-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ30-to-Witness-Statement-ofTessa-Jowell.pdf
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5.12
A briefing note from the period succinctly sets out the then Governments thinking on democracy, plurality and diversity:180 Our democracy and our cultural vitality depend on the availability of a range of different media voices, views and styles. The ownership of our newspapers, television and radio is therefore of the utmost importance. That is why the Government is concerned to ensure that citizens can receive a diversity of media content from a plurality of sources. Diversity is about having a wide range of content and in the White Paper, a New Future for Communications, we set out the commitments to public service broadcasting and positive content regulation that we believe will be sufficient to ensure this diversity. Plurality is not about content but the source of that content, the voice behind it the owner. A plurality of voices should: ensure no individual has excessive control over the democratic process; provide a plurality of sources of news and editorial opinion, preserving the culture of dissent and argument on which our democracy rests; prevent the emergence of any one source able to control the news agenda by the inclusion / omission of particular stories; maintain our cultural vitality by ensuring that different companies exist to produce different styles of programming and publishing, each with a different look and feel. We therefore need regulation that is specifically directed to ensure plurality and that is why we have imposed rules on media ownership.
5.13
The evidence discussed in more detail below is consistent with the pursuit of these policy objectives throughout, although there was considerable debate about the best kind of rule to apply and the precise formulation thereof so as adequately to protect plurality whilst at the same time minimising the impact upon economic growth and the market.
Foreign ownership of terrestrial television

5.14 At the start of the legislative exercise the Governments position was that the existing prohibitions on foreign (non EU/EEA) ownership of, inter alia, analogue terrestrial television should be maintained. The purpose of this prohibition, as expressed in the Communications White Paper, was to help ensure that European consumers continued to receive high quality European content. It was further felt that without reciprocal reforms in countries like the US or Australia that put restrictions on British companies, we cannot justify lifting our ban at the present time.181 However, the downside to the rule was that it excluded investment from many countries, notably a number of countries with developed economies, and vibrant media industries, including the United States, Australia and Japan. As Ms Jowell explained:182
p2, Tessa Jowell, https://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ13.pdf p6, Tessa Jowell, https://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ13.pdf 182 p11, Tessa Jowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning-Hearing21-May-2012.pdf
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So the very important and balanced judgment that we had to make was the extent that we could open up the possibility of American investment, Japanese investment, Australian investment in our British media without prejudicing the quality and without jeopardising plurality. 5.15 News International lost no time and lobbied energetically on the issue from an early stage. It took issue with the status quo in its formal response to the White Paper.183 Les Hinton wrote to Ms Jowell and Kim Howells (then the newly appointed Parliamentary Undersecretary of State at DCMS) in June 2001 to congratulate them upon their appointments and sought a meeting. He met Mr Howells on 26 July 2001, following up first with a brief letter the same day in which he wrote: I am particularly delighted to hear that, contrary to the White paper, the Government is prepared to consult on the foreign ownership prohibitions184 and then with a longer letter dated 8 August 2001 fully articulating News Internationals position on this issue and on cross media ownership.185 The letter contained a thinly veiled threat to litigate relying upon Article 10 of the ECHR (freedom of expression), read with Article 14 (prohibiting discrimination) and concluded: Foreign ownership prohibitions are unnecessary, anachronistic and discriminatory. Furthermore, they are an insult to those foreigners such as Roy Thomson and Max Beaverbrook, whose contributions made Fleet Street what it was not to say to those foreigners who are currently active in this industry. 5.16 The Government initially was not persuaded. As the consultation document was launched Ms Jowell briefed the Prime Minister in November 2001 in the following terms:186 Foreign ownership of broadcasting: our working assumption is that we stick to the line in the White Paper that there will be no lifting of foreign ownership restrictions. We invite views on whether we should develop reciprocal arrangements with those countries which might lift restrictions on UK companies, or put this issue on the table for WTO discussion. 5.17 The documentary evidence shows that arrangements had been made for both Ms Jowell and Patricia Hewitt to meet Mr Hinton on 26 November, although the indications are that that meeting was subsequently postponed.187 Ms Jowell was again due to meet Mr Hinton on 23 January 2002, although it is unclear whether this meeting in fact went ahead.188 There was no documentary record of such a meeting having taken place amongst the DCMS disclosure and so the meeting may not in fact have gone ahead. The first sign of a shift in the Governments position on foreign ownership appears in an internal briefing document prepared for Ms Jowell on 30 January 2002, following consideration of responses to the formal consultation process, which had been launched in November of the previous year. On the issue of foreign ownership an official recommended removing the existing restrictions on foreign ownership. The recommendation was founded in an analysis
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p6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ19-to-Witness-Statement-of-TessaJowell.pdf 184 p1, Tessa Jowell, https://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ6.pdf 185 pp1-7, Tessa Jowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ8-to-WitnessStatement-of-Tessa-Jowe.pdf 186 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ12-to-Witness-Statement-of-TessaJowell.pdf 187 p2, Tessa Jowell, https://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ11.pdf 188 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ19-to-Witness-Statement-of-TessaJowell.pdf
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of the consultation responses and fully reasoned. The author of the document noted that all the major British companies (TV and radio) had argued for reciprocity. Foreign companies (News International, Bloomberg, Telewest) had called for the restrictions to be removed. Some independent voices had argued for the retention or strengthening of the rules to maintain levels of high quality European content. Six considerations were set out in support of the recommendation:189 1. Tier 1 and 2 requirements will guarantee original production, independent production and UK regional production and programming. Non-EEA companies could bring welcome inward investment. 2. There is arguably no difference in principle between French or German ownership, which we currently allow, and US or Australian ownership which we ban. To remove the ban is to remove an anomaly. Other European countries (eg Germany, Spain, the Netherlands) have removed foreign ownership rules without any obvious adverse effect. 3. Foreign owners are already allowed into the newspaper market, where there has been no obvious loss of British content. 4. The Radio Authority argue that foreign ownership will dilute the local nature of services, but there seems no reason why a large US company should have any more reason than a large UK company to degrade the service offered in any local area. 5. Foreign ownership can be difficult to identify, eg in the case of Sky, which the ITC do not consider to be a foreign-controlled company. 6. A position of reciprocity would in effect add up to a ban on American companies, given that the US is extremely unlikely to remove their rules on foreign ownership in the foreseeable future. 5.19 Ms Jowell did not accept the recommendations uncritically. An internal minute of 7 February 2002 evidences the fact that she called for a note from the Radio Authority on foreign ownership. The official who considered that note did not feel that it provided a strong case for maintaining a ban on non-EEA ownership. The internal minute also records preliminary legal advice about the strength of the ECHR challenge which had been threatened by News International (see 1.14 above) and Bloomberg. The view of the Departments lawyers was that the matter was not clear cut and that the argument advanced against the secretary of state would involve an extension of the current law if it were to prevail.190 In the result, both Ms Jowell and Ms Hewitt were persuaded that the best course was the abolition of the restrictions on foreign ownership and recommended the same to the Prime Minister in a joint letter to him about media ownership rules dated 7 March 2002.191 After discussion, Mr Blair accepted the recommendation.192 In due course the decision was accepted by the Cabinet and incorporated into the Draft Communications Bill which was published on
5.20
p11, Tessa Jowell, https://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ20.pdf; see also the briefing note on the effect of foreign ownership rules at p19, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/05/Exhibit-TJ24-to-Witness-Statement-of-Tessa-Jowell.pdf 190 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ21-to-Witness-Statement-of-TessaJowell.pdf 191 p2, ibid 192 Evidencing the fact of the decision, see p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/ Exhibit-TJ45-to-Witness-Statement-of-Tessa-Jowell1.pdf
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7 May 2002. On the issue of foreign ownership, in the course of her statement about the Bill, Ms Jowell told the House:193 We also intend to scrap the inconsistent rules that prevent the non-European ownership of some broadcasters. It makes no sense that French, Italian or German companies can own television and radio licences, but Canadian, Australian or United States companies cannot. The resultant inward investment should allow the UK to benefit rapidly from new ideas and technological developments. New blood and new competition will help to give our industry the edge. 5.21 In her evidence to the Inquiry, Ms Jowell, also explained how the change in policy thinking in relation to foreign ownership was interrelated with Ofcoms emerging content regulation role:194 ...we were very concerned to avoid a situation where we lifted the restriction on foreign ownership of terrestrial television in a way that invited dumping of low quality content. So the decision on relaxing foreign ownership really moved alongside the development of our thinking on the content regulation role of Ofcom.. 5.22 The history above has been set out at some length because it demonstrates an entirely proper and reasoned approach to a significant policy decision. News International lobbied with characteristic determination (something that they would not have needed to do had there been a pre-existing deal). The records show that in fact the change of policy on foreign ownership occurred as a result of the consideration of responses to a formal consultation process. Indeed further views were sought from the Radio Authority, and preliminary legal advice taken about whether or not maintenance of the ban on foreign ownership would be discriminatory as alleged by News International and Bloomberg, before the Ministers made their recommendation to Mr Blair. These are not the actions of persons seeking to advance a particular agenda, but those of persons seeking to make an informed decision. The reversal of position is consistent with a trend towards incorporating more, rather than less, deregulation as the policy developed. Both the removal of the ban on foreign ownership and the relaxation of the 20:20 Rule in relation to Channel 5 (see below) exemplify this trend. The Ministers plainly took account of, and were influenced by, the responses to the consultation process. It was the responses of large foreign owned media companies which proved more persuasive.
5.23
Channel 5
5.24 Consideration of the relaxation of the 20:20 rule in relation to Channel 5 first requires some background. At the material time, Channel 5 was not for sale. Nor had either BSkyB, or News Corporation, indicated a firm intention to bid for the channel if it did come onto the market. BSkyB was, however, potentially interested as is evidenced by an internal Sky memo, obtained by DCMS through an undisclosed means, in which the possibility, amongst others, of a bid for Channel 5 is countenanced.195 The memo is striking because it also appears to
p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ50-to-Witness-Statement-of-TessaJowell1.pdf 194 p12, Tessa Jowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning-Hearing21-May-2012.pdf 195 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ15-to-Witness-Statement-of-TessaJowell.pdf
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show that representatives of BSkyB had previously met James Purnell196 and discussed what would happen if BSkyB bid for a Channel 3 licensee:197 For the record, shortly after Carlton made its bid for UN&M and Granada made its bids for both Carlton and UN&M, Irwin and I met with James Purnell. He confirmed that the Government would not rely on the 20:20 Rule to block a takeover bid by Sky for a Channel 3 licensee (and one would assume that the same approach would apply to Channel 5). James anticipated that any such bid by Sky would be referred to the Competition Commission (as was the case with bids by the ITV companies for each other). Assuming that the Competition Commission did not find such a bid by Sky to be against the public interest, the Secretary of State would use the statutory power to amend the 20:20 Rule to ensure that it did not block that bid (emphasis added). 5.25 It is not necessary to determine whether or not Mr Purnell did in fact say what is attributed to him in the note because whatever he did say was overtaken by events when the rule fell to be considered at the highest levels of Government as described below. After publication of the draft Communications Bill, BSkyBs potential interest in Channel 5 was confirmed by Tony Ball, then chief executive of BSkyB, who told the Guardian that a takeover of Channel 5: could be interesting if the price was right.198 Channel 5 was in some difficulty because it had not lived up to financial expectations and was rapidly losing money. It was entirely realistic to believe that it might be offered for sale to a large media organisation. One of its significant shareholders, United Business Media plc (UBM), had expressed the view to Ms Jowell, that its future best lay as a part of a larger media organisation and had gone so far as to identify BSkyB amongst others as a potential buyer. Lord Hollick, on behalf of UBM, wrote:199 ...As you know we own 36 per cent of Channel 5 which you visited recently. I was responsible for persuading the then Government to consider the award of a further terrestrial franchise in the early 1990s. At the time I told the Government and the ITC that I anticipated that Channel 5 would have a brief and hopefully profitable career, as a stand-alone station but would soon become part of a larger broadcasting and media enterprise where its small but innovative and different voice would thrive. I had three particular options in mind; it should either become ITV 2 (to provide ITV with competitive bulk equivalent to the BBC), Sky 5 (where it would merge with Sky 1 and become the terrestrial arm of Sky), or Cable 1 (where it would become the terrestrial arm of the cable companies). Channel 5 has indeed made a bright start and its ratings have exceeded our expectations but unfortunately its financial performance has fallen far short of the plan and with its fifth birthday approaching it is still losing well over 50 million per year. The strategic and economic case for a merger of Channel 5 into a larger media
Mr Purnell was a special adviser from 1997 until his election as a Labour MP in 2001 and became Secretary of State for Culture, Media and Sport in 2007. See also, http://www.ippr.org/staff-profiles/58/603/james-purnell 197 pp2-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ15-to-Witness-Statement-ofTessa-Jowell.pdf 198 p8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ53-to-Witness-Statement-of-TessaJowell2.pdf; see also the speculation in The Sunday Express, p38, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/05/Exhibit-TJ53-to-Witness-Statement-of-Tessa-Jowell2.pdf 199 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ26-to-Witness-Statement-of-TessaJowell.pdf
196
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5.27
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organisation which would both strengthen its service to viewers and substantially reduce the administrative and programme acquisition costs it is burdened with by operating on a stand-alone basis, is now overwhelming...(emphasis added) 5.28 Quite properly, Ms Jowell responded to UBM assuring Lord Hollick that his comments would be considered closely but being careful to state: You will appreciate that I cannot discuss the detail of our thinking at this stage ...200 Channel 5 had a very small audience share and did not enjoy universal coverage.201 Nevertheless, the concern in some quarters was that if it was acquired by News Corporation, or BSkyB, then with the benefit of heavy investment it could grow in influence and audience share and be used to cross-advertise BSkyBs satellite channels. The scenario was taken seriously enough to have been specifically covered in Ms Jowell and Ms Hewitts briefing ahead of their appearance before the Joint Pre-Legislative Scrutiny Committee.202 It is in this context that the Governments modification of the 20:20 rule falls to be considered. Despite a general wish to deregulate, the direction initially and jointly taken by Ms Jowell and Ms Hewitt in relation to Channel 5 was in favour of maintaining the 20:20 rule. Thus, on this point, their joint recommendations to Mr Blair, made by letter dated 7 March 2002, following the formal consultation, and in preparation for the publication of the draft Bill, were:203 Cross media ownership removing most media-specific rules, leaving it to competition rules to prevent undue dominance; maintaining restrictions on significant cross-ownership of newspaper and TV assets;... (my emphasis) and were detailed in annex 3 thereto as meaning:204 A continuing restriction on large newspaper groups and subsidiaries (News International and Sky, Trinity Mirror, and possibly Associated Newspapers in the near future) owning any significant share of ITV or Channel 5 companies. Other newspaper group, with less than 20% of the national market, would now be able to invest in terrestrial TV without the acquisition having to pass a public interest test. (my emphasis) 5.31 The change in direction came as a result of discussions, shortly thereafter, with Mr Blair, and is evidenced by a discussion paper sent to him by Ms Jowell and Ms Hewitt. It is notable that Mr Blair was not seeking to impose a particular solution, rather he was seeking further to explore different options. The recommendation specifically to remove all restrictions on the ownership of Channel 5 came from the Secretaries of State and not from the Prime Minister:205 At our meeting this week, you asked for some further discussion of the merits and defects of the different approaches we could take to the rule preventing anyone owning 20% of both the national newspaper market and a Channel 3 or Channel 5 service. Our original recommendation was to keep this rule. Three other options are discussed in the pages that follow. Of these, we would recommend Option 3, which
p1, ibid p15, Tessa Jowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning-Hearing21-May-2012.pdf 202 p69, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ58-to-Witness-Statement-of-TessaJowell.pdf 203 p2, ibid 204 p10, ibid 205 p1, ibid
201 200
5.29
5.30
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removes all restrictions on the ownership of Channel 5, to allow free investment and growth in that channel, while protecting the independent voice provided by ITV, by far our largest commercial public service broadcaster. 5.32 Having said that, Ms Jowell, recalled that this exploration of deregulatory options was itself the result of Mr Blair encouraging her to go further than she might otherwise have gone:206 I have no detailed recollection of the conversation at that meeting ten years ago, save to say that the Prime Ministers instincts in relation to this were, I think, more deregulatory than mine. He pushed me further than I might have gone myself on exploring deregulatory options, but that was a constructive part of the process. 5.33 As to the recommendation, it was itself carefully reasoned in the discussion paper:207 OPTION 3 KEEP A 20% RULE FOR ITV, BUT NOT FOR CHANNEL 5 Possible effect News Corporation/BSkyB own Channel 5; ITV companies (or perhaps eventually a single ITV) separately owned by a separate media giant with no British newspaper interests Bertelsmann, or Disney perhaps. Channel 5 would be free to benefit from all sources of additional investment, allowing it to grow over time into a more serious competitor to ITV. ITV will also be able to benefit from new sources of investment, as long as that investment doesnt come from the British newspaper industry. Advantages This suggestion would be proprietor-neutral it allows anyone to buy and invest in Channel 5. ITV would survive as a voice independent of newspapers editorial agendas, but will still be able to benefit from new sources of investment. There are some obvious justifications for making a distinction between ITV and Channel 5: C5 doesnt cover the whole of the UK population, has low viewing figures and few public service broadcasting commitments. ITV has a much more defined public service role, and comprises 15 regional licences that cover the whole country. These regional licences are already the focus of a 20% rule, and cannot be joint-owned with more than 20% of a regions press. We could try to protect the independence of Channel 5 by maintaining or even strengthening its public service requirements.
p21, Tessa Jowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning-Hearing21-May-2012.pdf 207 p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ42-to-Witness-Statement-of-TessaJowell1.pdf
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Drawbacks Although Channel 5 is small in terms of viewing figures and influence now, with increased investment it may grow its share of both over the coming years, to remove the most obvious distinctions between it and ITV. POSSIBLE STEPS TO STRENGTHEN REGULATION OF CONTENT Whichever option we choose, Channel 5 might be owned by a large newspaper group, and its audience share may grow. To address any concerns we might have over the quality of news and programming, there are some steps we could take to regulate content, rather than ownership... 5.34 There was a further meeting with Mr Blair and it was agreed to remove the restriction against sizeable newspaper companies owning Channel 5:208 We have met twice to discuss the reform of media ownership rules. This letter summarises the decisions we have taken. Our approach will be deregulatory wherever possible, but we will retain a set of simple rules to prevent too great a concentration of ownership and political influence. Where we propose to remove rules (for example to allow sizeable newspaper companies to own Channel 5) content regulation will be able to maintain the quality, impartiality and diversity of programming and competition law will tend to encourage dispersed ownership and new entry... 5.35 The then Prime Ministers thinking was obviously influential in this decision, as Ms Jowell readily acknowledged:209 He was in favour of this option and he agreed with me on the safeguards that should accompany a decision to pursue this option to lift the ownership bar created by the 20 per cent on Channel 5. and, later:210 Q. Im not for a moment suggesting that this wasnt a considered decision and that these things can happen as policy and legislation develops, but my question was: was it the influence of the Prime Ministers thinking that set you on a course of thinking that led to you changing your mind? A. Well, of course, it did, because hes the Prime Minister, and, you know, when you develop youre a Secretary of State and youre developing policy and the Prime Minister has a slightly different view from the one that youre advancing, you take that seriously. 5.36 The safeguards referred to in the first of the quotations above concerned content regulation and the ability to require that Channel 5 took a nominated news provider in the event that the channel grew significantly. Their inclusion indicates that consideration was clearly being given to the plurality ramifications of the altered stance on Channel 5:211
p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ45-to-Witness-Statement-of-TessaJowell1.pdf 209 p25, Tessa Jowell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning-Hearing21-May-2012.pdf 210 pp26-27, Tessa Jowell, ibid 211 p25, Tessa Jowell, ibid
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But the safeguards I wanted to ensure was that if Channel 5 exploded on the back of new investment from being a tiny and rather marginal terrestrial company, that Ofcom would be in a position to (a) require that they took a nominated news provider and that they would be in a position to exercise the content control that ITV, for instance, was accountable foror accountable to 5.37 In the course of denying the existence of any implied deal, Mr Blair confirmed his preference for deregulation, explained that he thought that Mr Murdoch was more interested in Channel 3, and emphasised his wish to encourage very large foreign media companies to enter the United Kingdoms market:212 Q. In terms of the substance of the matter though, do you feel that the Communications Act reflected in any way an implied deal with Mr Murdoch or not? A. No, absolutely not. For a start, the thing that we did which was boost Ofcom is a thing that he absolutely disliked. And contrary to whats often written about this, Channel 5 was not his I mean, I never thought he was (inaudible) Channel 5. Channel 3 would have been a far better fit for him, and that he was unable to do. I mean, my thing with this Communications Act because I did talk to the ministers about it several times, my thing was very much to do with trying to open up the media ownership thing. ... And I actually remember during the course of this piece of legislation, I actually wanted to see if there were major media companies, I mean people the Time Warners of this world, Viacom, I think, Axel Springer, other big organisations that if you had a more open media policy would be prepared to come in, because what concerned me always was that you needed it wasnt necessary just to have other media ownerships, it was necessary to have other media owners with heft, with the ability to put major investment in, and frankly with the type of global media position that I could see the world moving to. 5.38 There can be no doubt that the relaxation of the 20% rule was good news for Mr Murdoch, and that the decision to relax the rule was personally influenced by Mr Blair. However, it does not follow from those bare facts that there was any explicit arrangement to that effect; nor even that the latter pushed this point specifically in order to favour News Corp in the hope of maintaining its support. The evidence demonstrates a more complex position. There was a clear desire to deregulate within the Government, the only differences being as to how far deregulation should go. Mr Blair was ready to go further than Ms Jowell was initially prepared to go and she in turn was prepared to go further than her predecessor Lord Smith.213 Ultimately, this was an area in which a balance had to be struck between plurality safeguards and market freedom and in which there was considerable room for differing views as to what was best for the country. The decision was not unqualified good news for Mr Murdoch. As Mr Blair pointed out, the 2003 Act contained much which News Corp did not like, not least insofar as it related to Ofcom. In relation to the 20% rule, the final decision to remove the rule only in relation to Channel 5, but not in relation to the more influential Channel 3 did not go anything like as far as News Corp had been seeking. Whilst it would be wrong to say that Mr Murdoch had no interest in Channel 5, the evidence does not demonstrate that it was a priority.
5.39
pp107-108, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-28-May-2012.pdf 213 p5, Lord Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Lord-Smith. pdf
212
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5.40
This is an example of media policy being personally influenced by a prime minister and, as such, points to the importance of the personal access which many senior media figures have had to our Prime Ministers. There may not be a deal, actual or implied, but access to communicate ones views in person to a Prime Minister who can directly influence policy is potentially a very important advantage.
Lord Puttnams amendment and the media plurality test

5.41 In relation to acquisitions by national newspaper owners of terrestrial television interests, before the enactment of the 2003 Act, a public interest test was applicable in three circumstances:214 (c) (d) (e) Any application by any newspaper owner to hold a licence for GMTV, Channel 5, or any national radio service; Any application to hold a regional Channel 3 licence or a local radio licence, by any national or relevant local newspaper owner; and Digital programme services could not be provided for three months after the award of the licence to a national or relevant local newspaper owner unless a plurality test was met.
5.42
These rules were not thought to be helpful by DCMS and DTI. They initially consulted on the possibility of incorporating an alternative public interest test into cross media ownership decisions, in terms which were summarised by Ms Jowell, when writing to Mr Blair, as follows:215 ...We ask for views on whether the cross media ownership limits should be abolished, retained or reformulated. If they are retained in some form, we ask whether they should be permeable, with decisions above the threshold of the formula subject to a plurality test, and whether such decisions should be taken by the Secretary of State or by OFCOM.
5.43
Government thinking was at that stage concerned with whether to apply a plurality test above a quantitative ownership threshold so as to make the threshold permeable. It was not the overarching test that was ultimately adopted following Lord Puttnams intervention. Even this limited proposal met with disfavour when the responses to the consultation paper had been considered. DCMS officials noted that most respondents rejected the idea of a media plurality test and recommended against such a test:216 Plurality tests are not well supported by the industry because they are inherently uncertain. Given that we are offering significant deregulatory reforms in most areas, and setting rules only where we feel we need to draw a line at what is acceptable in terms of plurality, there seems little point in offering additional flexibility where it is not wanted.
p30, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ38-to-Witness-Statement-of-TessaJowell.pdf 215 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ12-to-Witness-Statement-of-TessaJowell.pdf 216 p10, Tessa Jowell, https://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ20.pdf
214
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5.44
The notion of some kind of plurality test was nevertheless explored further, and at Ms Jowells request, the idea of expanding the plurality test in the newspaper regime to apply to all mergers (including cross-media mergers) that involve newspapers was the subject of a detailed ministerial submission prepared for her and Ms Hewitt in February 2002.217 The fact that this paper was sought at all tends to suggest that the Ministers had open minds and were genuinely seeking to explore the options. The joint recommendation which ultimately went from the Secretaries of State to the Prime Minister did not propose the inclusion in the draft Bill of a plurality test to be applied to cross media acquisitions. On the contrary, it recommended the abolition of the three extant public interest tests which applied to the acquisition of other media by a newspaper proprietor (see 1.41 above):218 The three existing rules that together make any purchase of any broadcasting service by any newspaper proprietor subject to a public interest test will be removed. The scope of these tests is not clear; they discourage newspaper owners from attempting levels of consolidation that would not necessarily dilute plurality; and they distort the market by encouraging existing owners who wish to sell to accept bids from non-newspaper owners who will not have to wait to pass a public interest test (a parallel may be drawn with the recent purchase of the Express newspapers by a non-newspaper owner who was not subject to any test under the special newspaper regime).
5.45
5.46
Plurality was instead to be ensured by quantitative limits on cross media ownership and competition law. The rules were to be the subject of automatic review by Ofcom no less than every three years. Insofar as it relates to national newspapers, their relevant proposals were summarised as follows:219 Cross-media ownership The existing patter of rules to be stripped down to those rules we feel are essential: A rule preventing those with more than 20% of the national newspaper market buying a significant stake in Channel 3 or Channel 5... Other rules to be removed: Rules that stipulate public interest tests for any acquisition of any broadcasting licence by any newspaper company to be scrapped ... ... Review of ownership rules All rules to be subject to automatic review by OFCOM no less than every 3 years OFCOM to make recommendations to the SofS, who can amend rules by secondary legislation.
5.47
At this stage, on cross media ownership, the large media companies were heading towards getting most, but not all, of what they wanted. Within Government there was (and always remained) a refusal to accept that competition law alone would suffice to ensure plurality in
pp1-6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ35-to-Witness-Statement-ofTessa-Jowell1.pdf 218 p7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ38-to-Witness-Statement-of-TessaJowell.pdf 219 pp4, 7 ibid
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the media. The ministers underlying political thinking is well summarised in their joint letter to Mr Blair:220 We believe that the case for deregulation is powerful. There has been an explosion of media choice in recent years giving people a wide range of sources of news, information, entertainment and other services. Meanwhile, the existing rules have hampered some companies from expanding and developing while others find themselves much freer. These anomalies are not good for investment, jobs or diversity of products for the consumer. However, we also believe that the media are different from other industries, which means that Competition law alone is insufficient. They are a uniquely powerful force in democracy and debate and there is a long history of some media owners using national newspapers in particular to promote their views. We need a significant degree of plurality of ownership for democracy to work, and competition law cant guarantee this for us. Our line is therefore to regulate ownership on top of competition law, but only where absolutely necessary imposing a simple set of barriers to excessive concentration. We are therefore proposing substantial deregulation, both within each media sector (radio, TV, local newspapers, and national newspapers) and also between them, subject to retaining reduced but still significant controls on cross-ownership of national newspapers and major terrestrial TV channels. 5.48 A revealing part of the joint submission made by the Secretaries of State to the Prime Minister is the annex listing potential commercial winners and losers on the proposals as they then stood. The Big Winners are stated to be terrestrial television companies, most non-EEA companies, the biggest radio groups and the smaller national newspaper groups. News International is not amongst the Big Winners but is placed is the Smaller Winners category along with the largest national newspaper groups, their subsidiaries and the regional-only newspaper groups.221 It must be noted that this assessment was at that stage on the assumption that the prohibition on a News International purchase of Channel 5 would remain and the ultimate outcome was more favourable for News International than that contemplated at this time. Nevertheless, the assessment tends against any suggestion that the Government of the time was seeking specifically to benefit News International and is consistent with its policy of deregulation for wider economic and consumer benefit. As has been discussed above, the 20% rule, as it applied to Channel 5 was not in the event included in the draft bill, as a result of discussions with Mr Blair. On the subject of cross media ownership, the Secretaries of States recommendation to reduce the system to its essentials was accepted and no media plurality test was incorporated into the draft bill for application to cross media acquisitions.222 This approach was consistent with the desire to provide predictable rules for business and with the greatly relaxed approach to newspaper mergers set out in the draft Bill, the effect of which was summarised as follows:223
5.49
p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ39-to-Witness-Statement-of-TessaJowell.pdf; see also Tessa Jowells speech to the House of Commons upon publication of the draft bill, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ50-to-Witness-Statement-of-Tessa-Jowell1.pdf 221 pp11-14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ38-to-Witness-Statement-ofTessa-Jowell.pdf 222 pp1-2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ45-to-Witness-Statement-ofTessa-Jowell1.pdf 223 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ45-to-Witness-Statement-of-TessaJowell1.pdf
220
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A reformed newspaper merger regime will be less onerous and more targeted, applying post-acquisition only in cases where there is significant concern on competition or plurality grounds. Criminal sanctions will be removed. Final decisions, at least on plurality grounds, will rest with Ministers. 5.50 The absence of a plurality test generally applicable to media mergers in the draft bill became the subject of some controversy. At the pre-legislative scrutiny stage, the Joint Committee made 148 recommendations.224 Amongst these, the Committee recommended the incorporation of a plurality test for media mergers to be incorporated into the general merger regime introduced by the Enterprise Act 2002 (and thus applicable to media mergers which were also qualifying mergers for the purposes of that Act). They also expressed concerns about the proposed exclusion of Channel 5 from the 20:20 rule and the lifting of the ban on foreign ownership.225 The core recommendation about plurality incorporated a widely drafted test and read:226 We recommend that the general merger regime, as introduced by the Enterprise Bill, be amended by the Communications Bill to permit the OFT and the Competition Commission to have regard to plurality, as well as the issue of substantial lessening of competition, in reaching decisions on media mergers. For these purposes, we recommend that plurality be specified as a consideration in respect of which the Secretary of State may serve a public interest intervention notice and that plurality be defined as: The public interest in (i) the maintenance of a range of broadcast media owners and voices sufficient to satisfy a variety of tastes and interests; (ii) the promotion and maintenance of a plurality of TV, radio and other broadcast media owners, each of whom demonstrates a commitment to the impartial presentation of news and factual broadcast programming; and (ii) the promotion and maintenance, in all media including newspapers, of a balanced and accurate presentation of news, the free expression of opinion and a clear differentiation between the two. 5.51 DCMS and DTI considered the Joint Committees recommendations, accepting most of them and they also considered the responses of interested parties to the draft Bill. On the question of a media plurality test, they were unmoved by the Joint Committees recommendation. A contemporary joint briefing produced by officials for Ms Jowell and Ms Hewitt succinctly recorded their position:227 [The Governments view is that the only way to guarantee sufficient levels of plurality on a cross-media basis is to set clear, specific limits on ownership through a number of key rules. Since these rules which will apply to all mergers are directed at the same objectives as a general plurality consideration, we do not see the need to provide additionally for a general plurality test in the Enterprise Bill merger control regime].
p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ62-to-Witness-Statement-of-TessaJowell.pdf 225 pp10-11, ibid 226 p27, ibid 227 p18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ68-to-Witness-Statement-of-TessaJowell.pdf
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5.52
There were also concerns that the proposed test would effectively impose a form of content regulation on newspapers.228 The Communications Bill, when it was introduced, did not include a media plurality test. Lord Puttnam was not prepared to let the matter rest and led a campaign for, amongst other things, a media plurality test, against the relaxation of the 20:20 rule in relation to Channel 5, and against the lifting of the ban on foreign ownership. He met Ms Jowell on 11 June 2003 when the position, on these issues, recorded the plurality test as being to the fore:229 Lord Puttnam thought a plurality test would resolve his own concerns about foreign ownership and Channel 5. He accepted, however, that he couldnt speak for anyone else. The SoS said she would be concerned about a double bind of ownership rules plus plurality test, and was not convinced that the industry would buy it, given the uncertainty involved. Puttnam said his conversations with industry leaders suggested they were not unduly bothered by such uncertainty. He is not hung up about the precise wording the extract from the PCC Code is deliberately provocative. SoS agreed wed look at his ideas and discuss with our lawyers.
5.53
5.54
There was some limited counter lobbying from the industry but the political tide was turning against the Government.230 As the Bill approached its first day of Lords Report, Ms Jowell and Ms Hewitt wrote jointly to Mr Blair, informing him that the Government faced defeat on the three issues which this sub-section of the report has focused upon: foreign ownership, Channel 5, and a media merger plurality test. They invited him to agree to make a concession on a plurality test, it having been indicated to them both by the Conservatives and Lord Puttnam that such a move would win their backing on foreign ownership and Channel 5. The thinking behind recommending the concession reflected the increasingly deregulatory course which the policy had taken and was stated to be:231 Until now we have resisted calls for a plurality test on the basis that our mix of content regulation and core ownership rules should protect plurality. In Parliament, it has argued that because the Bill is so deregulatory we should equip ourselves with the means of investigating further those rare cases where we have removed ownership rules but where some concerns remain. We can see the logic in this, although such a concession only makes sense if the wider liberalisation central to the Bill is retained.
5.55
There then followed a period of internal policy debate about the form which a plurality test should take and, including amongst other things whether it should be a narrow test or a wide test, accompanied by guidance and applied only exceptionally in practice.232 There was
p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ69-to-Witness-Statement-of-TessaJowell.pdf 229 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ87-to-Witness-Statement-of-TessaJowell.pdf 230 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ93-to-Witness-Statement-of-TessaJowell1.pdf 231 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ94-to-Witness-Statement-of-TessaJowell.pdf 232 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ96-to-Witness-Statement-of-TessaJowell.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ98-to-Witness-Statement-ofTessa-Jowell.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ97-to-Witness-Statementof-Tessa-Jowell.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ99-to-WitnessStatement-of-Tessa-Jowell2.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ107-toWitness-Statement-of-Tessa-Jowell.pdf
228
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a further discussion between Ms Jowell, some of her officials, and Lord Puttnam on 26 June 2003 which, on the issue of media ownership, as recorded at the time, had all the hallmarks of a negotiation:233 Andrew McIntosh repeated that at Report stage we would signal our concern about plurality in general and our intention to consider Puttnams plurality test amendment. Puttnam said that would not be enough to satisfy him. He was clear that only the exact text of his amendment (as scrutinised by Lord Grabiner) would work for him. He also circulated a new, additional amendment that would prevent any removal of ownership rules relating to Channel 5 until a plurality test had come into being. The Secretary of State asked for clarification that if we introduced a plurality test we would withdraw his opposition to our proposals on Channel 5 ownership. He agreed that if we can reach a common position on plurality he will not push the Channel 5 amendment he would take his name off it and would encourage Lord McNally and Lord Crickhowell to do the same. He will repeat this offer, making clear its conditional nature, at Report. On foreign ownership, he said he would support the Government. He will take his name off the amendment, and will stand up and oppose those who argue for reciprocity. 5.56 If this meeting produced the outline of a compromise between the Government and Lord Puttnam, it still left a real issue between them as to the scope of the plurality test which should be put in place. Internal e-mails between officials recorded their understanding of the position bluntly and with an emphasis on the impact for News Corp:234 TJ had now spoken to Puttnam he will push his amendment to a Division regardless of what we say. He will only accept a plurality test that makes absolutely sure News Corp cant buy Channel 5. He will also vote against us on C5, though not foreign ownership. 5.57 No consensus had been reached on the wording of a plurality test before Lord Puttnams amendment was debated in the House of Lords on 2 July 2003.235 The amendment moved at the start of the debate was in these terms:236 MEDIA PLURALITY PUBLIC INTEREST CONSIDERATION (1) Section 58 of the Enterprise Act 2002 (c.40) (specific considerations) shall be amended as follows. (2) After subsection (2B) (which is inserted by section 368 of this Act) there shall be inserted 2(C) The public interest in the promotion and maintenance- (a) of a plurality of media owners committed to a balanced and impartial presentation of news and to a balanced presentation of comment, and (b) of a wide range of voices such as to satisfy a variety of tastes and interests is specified in this section.
pp1-2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ100-to-Witness-Statement-ofTessa-Jowell.pdf 234 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ101-to-Witness-Statement-of-TessaJowell.pdf 235 HL Hansard, Vol 650, col 886 955, 2 July, 2003, available at http://www.publications.parliament.uk/pa/ld200203/ ldhansrd/vo030702/text/30702-05.htm#30702-05_head2 236 HL Hansard, Vol 650, col 908, 2 July, 2003, available at http://www.publications.parliament.uk/pa/ld200203/ ldhansrd/vo030702/text/30702-05.htm#30702-05_head2
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(3) In subsection (3), after the words any consideration, there shall be inserted (other than the consideration specified in subsection (2C)). 5.58 Lord Puttnam explained that the Joint Scrutiny Committees proposed plurality test lay at the heart of its conclusions and recommendations about media ownership. The committee regarded it as one of three non-negotiables and the test needed to be: ...sufficient to look across all media and make determinations in the best interests of the citizen...237 On the question of the underlying rationale of the amendment he said:238 Much has been made in the past few weeks of the underlying rationale of the amendment. I have heard it referred to as the Murdoch clause; it has even been described as something that attempts to demonise sections of the media. That is not and never has been the case. The Secretary of State was entirely right in insisting that the Bill and the amendment were entirely proprietor neutral. It is more to do, as I see it, with attempting to make our democracy proprietor neutral. 5.59 He later summarised the aim of his amendment as ...a move towards making the Berlusconiisation of British democracy an impossibility.239 Lord McIntosh, for the Government, supported the principle behind the amendments but expressed concerned about the details:240 Taken to one possible logical conclusion, the text of the amendment could have the effect of stopping broadcasters from being impartial and allowing them to have views and opinions ... The amendments would also seem to encourage the introduction of content regulation into newspapers ... 5.60 Lord McIntosh summarised the main points in favour of a plurality test: it would allow for the gradual dismantling of media ownership rules over time; it would be flexible enough to cope with changed circumstances (in this regard he posited the growth of Channel 5 to approach that of Channel 3 in size and reach); and it would allow judgments on media mergers, based on the particular circumstances of the case (in contrast to the cliff edge effect of the 20:20 Rule).241 Turning to the test to be applied, Lord McIntosh promised that a plurality floor would be maintained:242 It will be for Ministers to determine whether the merger causes sufficient plurality concerns for it to be blocked, or for conditions to be attached. Similarly, the test must also recognise that there is a minimum level of plurality which must be maintained.
5.61
I
237
HL Hansard, Vol 650, col 909, 2 July, 2003, available at http://www.publications.parliament.uk/pa/ld200203/ ldhansrd/vo030702/text/30702-05.htm#30702-05_head2 238 HL Hansard, Vol 650, col 910, 2 July, 2003, available at http://www.publications.parliament.uk/pa/ld200203/ ldhansrd/vo030702/text/30702-05.htm#30702-05_head2 239 HL Hansard, Vol 650, col 911, 2 July, 2003, available at http://www.publications.parliament.uk/pa/ld200203/ ldhansrd/vo030702/text/30702-05.htm#30702-05_head2 240 HL Hansard, Vol 650, col 912, 2 July, 2003, available at http://www.publications.parliament.uk/pa/ld200203/ ldhansrd/vo030702/text/30702-05.htm#30702-05_head2 241 HL Hansard, Vol 650, col 912 914, 2 July, 2003, available at http://www.publications.parliament.uk/pa/ld200203/ ldhansrd/vo030702/text/30702-05.htm#30702-05_head2 242 HL Hansard, Vol 650, col 914, 2 July, 2003, available at http://www.publications.parliament.uk/pa/ld200203/ ldhansrd/vo030702/text/30702-05.htm#30702-05_head2
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5.62
Significant limitations on the circumstances in which the Secretary of State would, in practice, intervene were signalled:243 We propose that the power be wide enough to capture all media mergers, including cross-media mergers. We would intend as a matter of policy normally to apply the test in practice only to those areas where the current rules are being removed completely. This means that, usually, the Secretary of State would consider intervening on plurality grounds only in the following areas: national newspapers with more than 20 per cent of the market/Channel 5; national newspapers with more than 20 per cent of the market/national radio service, Channel 3; Channel 3/national radio; Channel 5/ national radio; and national radio/national radio. (emphasis added).
5.63
On the delicate question as to the practical effect of the Governments intended test, Lord McIntosh would give no specific guarantee:244 The noble Lord, Lord Puttnam, asked whether this test would effectively rule out a major national newspaper owning Channel 5. The answer is that the test will ensure that the Secretary of State can investigate any merger which threatens plurality. It will clearly prevent unacceptable levels of cross-media dominance. But it is inherent in the nature of a test that one cannot predict the outcome in advance of any individual case. It will be necessary to analyse and consider all the relevant circumstances at the time on a case-by-case basis.
5.64
Guidance was intimated in order to afford industry some degree of certainty and, in particular, to set out in more detail those areas whether the test would generally be applied and the factors that would be considered. Wider application of the test in extreme and rare cases was, understandably, not ruled out.245 These assurances proved sufficient for Lord Puttnam who withdrew his amendment.246 Subsequently, the amendment to the Enterprise Act 2002, effected by the Communications Act 2003, inserting the media plurality test, was in these terms:247 Media public interest considerations After subsection (2) of section 58 of the Enterprise Act 2002 (considerations specified as public interest considerations for the purpose of the main merger regime) there shall be inserted (2A) The need foraccurate presentation of news; and free expression of opinion; in newspapers is specific in this section.
5.65
HL Hansard, Vol 650, col 914 915, 2 July, 2003, available at http://www.publications.parliament.uk/pa/ld200203/ ldhansrd/vo030702/text/30702-05.htm#30702-05_head2 244 HL Hansard, Vol 650, col 915, 2 July, 2003, available at http://www.publications.parliament.uk/pa/ld200203/ ldhansrd/vo030702/text/30702-05.htm#30702-05_head2 245 HL Hansard, Vol 650, col 915, 2 July, 2003, available at http://www.publications.parliament.uk/pa/ld200203/ ldhansrd/vo030702/text/30702-05.htm#30702-05_head2 246 HL Hansard, Vol 650, col 924, 2 July, 2003, available at http://www.publications.parliament.uk/pa/ld200203/ ldhansrd/vo030702/text/30702-05.htm#30702-05_head2 247 S375(1) Communications Act 2003. See also s375(2), s376(3) and s377 of the Act
243
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(2B) The need for, to the extent that it is reasonable and practicable, a sufficient plurality of views in newspapers in each market for newspapers in the United Kingdom or a part of the United Kingdom is specified in this section. (2C) The following are specified in this section (a) the need, in relation to every different audience in the United Kingdom or in a particular area or locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience; (b) the need for the availability throughout the United Kingdom of a wide range of broadcasting which (taken as a whole) is both of high quality and calculated to appeal to a wide variety of tastes and interests; and (c) the need for persons carrying on media enterprises, and for those with control of such enterprises, to have a genuine commitment to the attainment in relation to broadcasting of the standards objectives set out in section 319 of the Communications Act 2003. 5.66 Had it not been for Lord Puttnams amendment, the deregulatory effect of the 2003 Act would have been even more extensive than it was. In particular, there would have been no restriction, other than ordinary competition law, to prevent News Corp from acquiring and then investing heavily in Channel 5 and thereby becoming an even more powerful media presence in the United Kingdom.248
Reflections
5.67 The evidence does not support an inference of an agreement between Mr Murdoch and Mr Blair. Not only did Mr Blair flatly deny any such deal but the contemporary papers, discussed in detail above, reveal very considerable thought, genuine debate and reasoned decision making during the development of the policy underpinning the 2003 Act. Mr Blairs approach to the 2003 Act was driven by the views which he expressed in his evidence (as held at that time they changed later) including his desire to deregulate and to encourage foreign investment in what was a rapidly changing and globalising market. The approach was congruent with, but not necessarily a product of, his strategy to foster better relations with some sections of the media than his predecessors had enjoyed. The amount of consultation and dialogue involved during the development of the policy was noteworthy. There was considerable industry lobbying. Some of this was not transparent. I make no criticism of those involved; standards of transparency were in keeping with the times. Both on its own and when collected with other examples, the significance and value of transparency is increasingly obvious. The views of large media companies were undoubtedly taken into account but so were those of others with contrary views. The evidence has not demonstrated bias or unfair advantage resulting from media lobbying. Insofar as media representations were preferred over competing representations the documents show that it was the result of a proper weighing of the opposing arguments, and consistent with the deregulatory policies of the decision makers.
5.68
5.69
I
5.70
Tessa Jowell had made clear to BSkyB that OFCOMs plurality duty under s.3 of the Act was not intended to be used to block a merger otherwise compliant with the media ownership rules. p7, Tessa Jowell, https://www.levesoninquiry. org.uk/wp-content/uploads/2012/05/Exhibit-TJ83.pdf
248
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CHAPTER 6 MEDIA POLICY: THE BSKYB BID

1. Introduction
1.1 On 15 June 2010 News Corporation (News Corp) announced its bid to acquire those shares in British Sky Broadcasting plc (BSkyB) which it did not already own and thus triggered a need for the Secretary of State for Business, Innovation and Skills (BIS), the Rt Hon Vince Cable MP, to consider the media plurality test introduced by amendment into the Enterprise Act 2002 at s58(2C).1 As is well known, Dr Cables consideration of the bid became the subject of public controversy on 21 December 2010 as a result of comments which he made to undercover reporters from the Daily Telegraph about Rupert Murdoch and News International (NI). Those comments, which gave at least the appearance of bias against News Corp, prompted the Prime Minister immediately to intervene and transfer responsibility for considering the bid to the then Secretary of State for Culture, Media and Sport, the Rt Hon Jeremy Hunt MP. The choice of Mr Hunt itself prompted questions from some quarters because he had previously commented in positive terms about the bid and was believed to be well disposed towards News Corp.2 The bid returned to the public spotlight in July 2011, after the phone hacking scandal had broken in earnest, when an Opposition Day Motion was tabled: This House believes that it is in the public interest for Rupert Murdoch and News Corp to withdraw their bid for BSkyB.3 In these very adverse circumstances News Corp withdrew the bid shortly before the debate.4 Significant further evidence about the bid, and in particular the relationship between politicians and the press in relation to it, came to light during the course of the Inquiry. Exhibit KRM18 to Mr Murdochs witness statement contained 161 pages of email traffic evidencing News Corps lobbying effort. On their face, these emails appeared to show direct private contact between Mr Hunt and News Corps then Director of Public Affairs, Europe, Frdric Michel. Mr Michel gave evidence to the effect that, in fact, the overwhelming majority of the contact was with others at the Department of Culture, Media and Sport (DCMS), predominantly Adam Smith, then a Special Adviser (SpAd) to Mr Hunt. These documents, together with text and telephone records which were subsequently sought by, and disclosed to, the Inquiry demonstrate a sustained behind the scenes lobbying campaign by News Corp, in support of its bid wholly to own BSkyB, which the Inquiry investigated by calling relevant witnesses. The publication of KRM18 by the Inquiry aroused very considerable public interest and immediately sparked a political debate. On 24 April 2012 Mr Hunt wrote to the Inquiry requesting that his evidence be taken earlier than had been programmed, but the Inquiry explained that it needed to hear all relevant testimony bearing on the issues before Mr Hunt could fairly and properly provide his own account. The Speaker of the House of Commons permitted urgent questions to be put to the Prime Minister about Mr Hunt on 30 April
1.2
1.3
1.4
see Section 4 of this Chapter for a discussion of the circumstances in which the cross media plurality test came to be enacted. 2 p84, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH1-MOD300004241MOD300004682-docs-1-52.pdf ; see 4.39 below for Mr Hunts public comments 3 http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110713/debtext/110713-0003. htm#11071379000002 4 p8, paras 3.17-3.18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-JamesRupert-Jacob-Murdoch.pdf
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2012. In those circumstances it was necessary for the Inquiry, on more than one occasion, to make absolutely clear why it was taking evidence about the bid, its approach and, just as importantly, those questions which fell outside its remit. On 23 April 2012 I said:5 I understand the very real public interest in the issues that will be ventilated by the evidence. I also recognise the freedom that permits what is said to be discussed and the subject of comment in whatever way is thought fit, and I shall approach the relationship between the press and politicians from an entirely non-partisan judicial perspective, which I have no doubt is the reason that I was given this remit. I would hope that this approach will be made clear. 1.5 On 10 May 2012 I explained what I would and would not be looking at and why:6 I will look at the facts surrounding the News Corp bid for the remaining shares of BSkyB. I will do so in order to investigate the culture, practices and ethics of the relationship between the press and the politicians. It was because of the need to examine the facts fairly that on 25 April I spoke about the need to hear every side of the story, and although I had seen requests for other inquiries and other investigations, it seemed to me that the better course was to allow this Inquiry to proceed. That may cause me to look at the Ministerial Code and its adequacy for the purpose, but I will not be making a judgment on whether there has been a breach of it. That is simply not my job and I have no intention of going outside the terms of reference that have been set for me. For the avoidance of doubt, I see the significance of the way the bid was handled both by the Secretary of State for Business Innovation and Skills and the Secretary of State for Culture, Olympics, Media and Sport as evidencing manifestations, to return to the terms of reference, of the relationships between a media interest and politicians and the conduct of each. 1.6 The publication of KRM18 led to calls for other inquiries and other investigations. On 25 April 2012 I expressed the view that it would better to allow the Inquiry to proceed:7 In due course, we will hear all the relevant evidence from all the relevant witnesses, and when I report, I will then make findings that are necessary for me to fulfil the terms of reference the Prime Minister has set for me. In the mean time, although I have seen requests for other inquiries and other investigations, it seems to me that the better course is to allow this Inquiry to proceed. When it is concluded, there will doubtless be opportunities for consideration to be given to any further investigation that is then considered necessary. 1.7 I returned to the subject of other inquiries and investigations on 15 May 2012 in the light of significant activity in Parliament arising from the publication of KRM18 during the intervening period. I fully recognised on that occasion the sovereignty of Parliament to determine its own proceedings, but explained how a Parliamentary investigation of the same events as were being investigated by the Inquiry, conducted in advance of, or concurrently with, the Inquirys
p2, lines 4-13, Lord Justice Leveson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-23-April-2012.pdf 6 pp58-59, Lord Justice Leveson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-10-May-2012.pdf; p5, lines 5-11, Lord Justice Leveson, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/05/Transcript-of-Afternoon-Hearing-15-May-2012.pdf 7 p2, lines 7-17, Lord Justice Leveson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-25-April-2012.pdf
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Chapter 6 | The BSkyB Bid
work risked making it impossible for the Inquiry to investigate this part of the evidence in accordance with its duty of fairness pursuant to s17(3) Inquiries Act 2005.8 In the event, Members of Parliament decided not to proceed in parallel with the Inquiry, and the Inquiry has continued as intended. 1.8 This subsection of the Report does not seek to provide a comprehensive history or critique of the bid. Rather, it considers the relationship between the national press and politicians during the course of the bid and the conduct of each, including the ways in which the relationship was conducted.9 It explores the relevant interactions, how the competing parts of the press sought to advance their interests, and how the politicians conducted the process of applying the cross media public interest plurality test. It seeks to identify the issues of concern which arose during the process of applying the statutory test with a view to identifying lessons to be learned. These lessons are directly relevant not only to the future conduct of the national press and politicians in relation to one another but also to the question as to how best to ensure the maintenance of sufficient plurality in the media. Scrutiny of the bid in this way raises many questions. Perhaps the most important question is what role, if any, should politicians play in cross media plurality decisions? Also for consideration are: how did the statutory test work? Was it necessary? Does it require alteration or change? How and why did the problems with process at both BIS and DCMS occur? What can be done to prevent a recurrence of such problems? Consideration is also given to whether or not there was an explicit arrangement between Mr Murdoch and any Conservative politician in relation to the handling or outcome of the bid. It is right though to state at the outset that in fact the evidence did not come close to proving any such arrangement.
1.9
Context
1.10 Total control of BSkyB ...had long been an aspiration, since the merger with BSB10 for News Corp. At the launch of the bid, News Corps interests in the United Kingdom included a 39.1% stake in BSkyB and 100% ownership of NI. News Corp also wholly owned HarperCollins, one of the top four book publishers in the UK.11 These holdings were but a part of a global media business with interests in many parts of the world, including shares in a number of European satellite broadcasters. News Corp was already generally regarded, for plurality purposes, as having control of BSkyB.12 James Murdoch explained why News Corp nevertheless wished to acquire the remaining shares:13 ...News Corporation wanted to expand its holding in BSkyB in order to simplify the operating model of the business, to have fewer, bigger businesses, and to focus on cash flow and invest in upstream content and creative industries. It was intended to
pp1-14, Lord Justice Leveson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-15-May-2012.pdf 9 in the case of News Corp, a global media company which owns British national newspapers through News International 10 p72, lines 18-19, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-24-April-2012.pdf 11 p48, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-2.pdf 12 p20, lines 16-19, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-24-April-2012.pdf 13 p5, para 3.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-James-RupertJacob-Murdoch.pdf
8
1.11
1301
consolidate BSkyB with our interests in the other Sky businesses around the world to create the first state of the art, global, 21st century, digital pay television business, which would have centred in the UK. The proposed deal with driven by considerations relating to the way television is made and consumed around the world and the benefits of consolidation. We see competition increasingly on an international scale and our aim was to combine our interests in a number of our Sky businesses in order to compete more effectively with multinational telecoms companies and large technology businesses that have begun to distribute audio-visual programming, and enjoy certain benefits of scale and scope that the individual Skys might not. 1.12 He expanded on the international dimension, demonstrating as he did so, the truly global perspective from which media companies of the size of News Corp view the market:14 The proposed transaction would have brought enormous benefits to industry, to the Sky business and its consumers and to the wider economy. We had hoped to combine our interests in the Sky businesses in the UK, Italy, Germany, India and New Zealand to build a world class company, with its headquarters in the UK, I am aware that some people in the UK thought that Sky was too big, but we felt that it would be helpful to be bigger in order to compete with other international companies such as Google, Apple and large telecoms companies, all of whom are much larger than BSkyB and have been investing in the audio-visual business heavily on a global rather than national basis. 1.13 There can be little doubt that the acquisition, if it had gone ahead, would have afforded News Corp with a significant commercial opportunity to develop a large integrated multi-platform media company. The prospect certainly alarmed competitors in both the newspaper and television industries who vigorously opposed the bid. They were joined in that endeavour by two very active campaigning groups, Avaaz and 38 Degrees. Although BSkyB is a satellite television broadcaster, its proposed acquisition was of undoubted relevance to the national newspaper industry. It offered the prospect of increased cooperation between NIs titles and BSkyB, both of which would have been wholly owned by News Corp had the deal gone ahead. Competitors feared that both subsidiary companies would benefit from economies of scale, might be able to gain commercial advantage by bundling their products, and (subject to the rule requiring impartial television news coverage) share each others content.15 The commercial context in which the bid took place is important. Regulation of media ownership must strike the right balance between, on the one hand, avoiding the over concentration of media power into too few hands and, on the other, attracting investment and promoting innovation in a technologically very dynamic industry. The precise timing of the bid was related to some extent to the general election held in May 2010. News Corp deliberately waited until after the election before launching the bid. James Murdoch told the Inquiry that this was to avoid the bid becoming a political football.16 He also explained that more broadly the timing of the bid had primarily been influenced by the global
1.14
1.15
I
1.16
14 15
p12, ibid For News Corps response seeking to rebut to such fears: pp220-230, Dr Vince Cable, http://www.levesoninquiry.org. uk/wp-content/uploads/2012/05/Exhibit-VC1-2.pdf 16 on the other hand, Rupert Murdoch said it was a pure coincidence that the bid was announced a month after the General Election: p16, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcriptof-Afternoon-Hearing-25-April-2012.pdf
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financial crisis and was determined by the need for News Corp to amass the very substantial funds necessary to make a cash offer. A third and final factor was the timing of the BSkyB boards summer meeting:17 A. I think it was to wait until the election was completed, regardless of the outcome, such that a transaction of this size, some $12 million [sic], didnt become a political football, and that was the goal. But the primary driver for the timing was really (a) the affordability of it, being able to do it. We had taken some time to really husband our resources carefully. It was contemplated that it would be an all cash offer and that took a little while to save up, if you will, after over a number of years. Also, there was a gap because in 2009 youll recall, with the financial crisis, with the uncertainty around the environment, you know, large scale mergers and acquisitions activity was a hard thing to get your head around. Q. Yes. A. And furthermore, in 2009 and forgive me, Mr Jay, but its important because I think I know where youre going, but every summer the BSkyB board, the independent directors, meet together to talk through long-term strategy and the like, and we wanted to do it ahead of that, or around that time when the board was all scheduled to have a few days together, so it could be done completely and properly with the board.
2. The plurality test and quasi-judicial procedure

The statutory framework
2.1 The proposed merger met the threshold for consideration by the European Commission under the EU Merger Regulation. Consequently, News Corp and BSkyB were required to notify the proposed transaction to the European Commission for clearance. Following negotiations between the parties, they notified the European Commission at the start of November 2010.18 Clearance was then forthcoming on 21 December 2010.19 Domestically, the first formal decision for the Secretary of State was to consider whether or not to exercise his discretion to issue a European Intervention Notice (EIN) under s67(2) of the Enterprise Act 2002. The discretion afforded by that statutory provision is as follows: The Secretary of State may give a notice to the OFT (in this section a European intervention notice) if he believes that it is or may be the case that one or more than one public interest consideration is relevant to a consideration of the relevant merger situation concerned. (emphasis added) 2.3 The public interest considerations which fell to be considered in this case were those commonly referred to as the broadcasting and cross media public interest considerations contained in s58(2C) of the 2002 Act. They are:20
2.2
pp70-71, lines 23-20, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcriptof-Morning-Hearing-24-April-2012.pdf 18 p5, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-2.pdf 19 p7, para 3.10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-JamesRupert-Jacob-Murdoch.pdf 20 p32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-1-to-Witness-Statement-of-VinceCable-MP.pdf
17
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(a) the need, in relation to every different audience in the United Kingdom or in a particular area or locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience; (b) the need for the availability throughout the United Kingdom of a wide range of broadcasting which (taken as a whole) is both of high quality and calculated to appeal to a wide variety of tastes and interests; and (c) the need for persons carrying on media enterprises, and for those with control of such enterprises, to have a genuine commitment to the attainment in relation to broadcasting of the standards objectives set out in section 319 of the Communications Act 2003. When Dr Cable in due course did decide to issue an EIN, the particular plurality concern which he identified in the notice was that set out at (a) above.21 2.4 The issue of an EIN triggers an obligation upon the OFT to report to the Secretary of State and, as happened in due course in this case, media plurality is considered to be a public interest consideration, then Ofcom is also required to prepare a report. Once in receipt of the reports it then falls for the Secretary of State to decide whether or not to refer the case to the Competition Commission for detailed scrutiny. In the present case this was the decision which fell to Mr Hunt, after responsibility for the bid was transferred to him on 21 December 2010, and it is considered in more detail later in this section of the Report.22 The alternative to issuing an EIN was for the Secretary of State simply to permit the acquisition to proceed, subject only to the European Commissions competition decision. In other words, simply to allow the acquisition without further specific scrutiny of the possible consequences of the transaction for media plurality.
2.5
The guidance
2.6 As promised by the Labour Government when the media plurality test was inserted by amendment into the 2002 Act, and as is provided for by s106A of the 2002 Act, guidance was published by the then Department of Trade and Industry (DTI) in 2004 (the Guidance) with a view to explaining the considerations specified in section 58(2A) to (2C) to persons who are likely to be affected by them; and indicating how the Secretary of State expected the legislation to operate in relation to such considerations. The Guidance, whilst not binding, is intended to provide an indication of how the media public interest merger regime will operate in practice, and the approach which the Secretary of State is likely to adopt in considering cases. The Secretary of State should have regard to the Guidance and should only depart from it with good reason. Ultimately, as the Guidance makes clear, each transaction falls to be looked at on its merits on a case-by-case basis.23 In relation to a decision to intervene on a media public interest consideration, the Guidance provides in relation to procedure that:24
I
2.7
21
European Intervention Notice, 4 November 2010, p245, Dr Vince Cable, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/05/Exhibit-VC1-2.pdf 22 subsection 5 below: Handling of the Bid by Jeremy Hunt and DCMS 23 p32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-1-to-Witness-Statement-of-VinceCable-MP.pdf 24 pp17-18, ibid
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...If the Secretary of State is going to take a view on whether or not to intervene in the case on public interest grounds, the parties to the merger will be informed of this and invited to submit any views they have on this in writing. In taking a view on whether to intervene the Secretary of State will have regard to all available information which, depending on the case, may include:
submissions from the parties to the merger (as invited by the Secretary of State); complaints made to the Press Complaints Commission and judgments made; any previous regulatory decisions which include relevant information or judgments; published articles raising matters of relevance; and any third party representations received; but she will not receive advice from OFCOM on whether to intervene (though she may receive and/or seek information from them in order to inform her decision).
and (insofar as is relevant): ...The Secretary of State will not normally conduct a public consultation on whether she should intervene in a case, but will welcome and take account of any representations she receives. She may also seek the views of a few interested parties if time permits. 2.8 The exchange of submissions and the oral presentation of a partys case (in whatever form) are not envisaged in this Guidance and, unless the Secretary of State chooses to go further than the Guidance indicates, those making submissions are not afforded, at this stage, the opportunity to reply to the arguments made against them. Guidance about the substantive interpretation of the plurality of persons considered, specified at s58(2C)(a), and the provision to which Dr Cable ultimately referred when he did issue an EIN, is to be found in chapter 7 of the 2004 Guidance. Amongst other things, it makes clear that the plurality of persons test ...is concerned primarily with ensuring that control of media enterprises is not overly concentrated in the hands of a limited number of persons... and that ...the Secretary of State considers that sufficient plurality in this context refers to the number of persons controlling media enterprises, taking into account as appropriate relative audience shares (emphasis added)25 Of particular relevance to the bid for BSkyB was the policy on intervention in broadcasting and cross-media public interest cases set out in section 8 of the Guidance. This policy considerably narrows in practice the application of the otherwise widely worded public interest test applicable in broadcasting and cross-media public interest cases:26 In principle, the Secretary of State may intervene in any relevant or special merger situations involving media enterprises, including cross media mergers, where she believes that the broadcasting and cross-media public interest considerations are relevant. The Secretary of States policy is that, save in exceptional circumstances, she will consider intervention only in cases where media ownership rules have been removed by the Communications Act 2003. These are: ... ...
25 26
2.9
2.10
p32, ibid p37-38, ibid
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In addition, the Secretary of States policy is that, save in exceptional circumstances, she will not intervene in respect of mergers in areas where there are no media ownership restrictions and none were removed by the Communications Act 2003 (e.g. mergers involving satellite and cable television and radio services). ... In exceptional circumstances, the Secretary of State may consider it necessary to intervene in mergers in areas where there continue to be media ownership rules or where there have never been such rules. The Secretary of State will only consider intervening in such a merger where she believes that it may give rise to serious public interest concerns in relation to any of the three considerations. During Parliamentary debate of these provisions, Ministers suggested that these might include circumstances where a large number of news or educational channels would be coming under single control, or if someone were to take over all the music channels. The Secretary of State may consider intervention if a prospective new entrant to local radio ownership has not shown a genuine commitment to broadcasting standards in other media or countries. The Secretary of State is not currently aware of any other types of cases in which exceptional circumstances might arise. She has also taken the view that an adverse public interest finding by a previous regulatory authority into a proposed merger is not necessarily in itself an exceptional circumstance meriting intervention; such cases should be considered in light of the reasons for the adverse finding and if the law has been changed to allow the sort of concentration resulting from the merger. (emphasis added) 2.11 The proposed acquisition by News Corp, a company connected with a newspaper proprietor, NI, of a satellite television company, BSkyB, was not a case where media ownership restrictions either existed or had been removed by the 2003 Act. Under the policy, intervention was therefore only appropriate in exceptional circumstances and if the Secretary of State believed that the proposed transaction may give rise to serious public interest concerns in relation to any of the three public interest considerations. It was not one of the transactions expressly envisaged as exceptional at the time when the Guidance was drafted. News Corp was not alone at the outset of the bid in thinking that there was a strong case for not referring the bid when regard was had to this test. They did not see as exceptional a merger which involved the acquisition by it of the remaining shares in a company in which it already had a significant stake and exercised considerable control. Opponents of the bid differed and argued (insofar as is relevant) that there would in fact be a significant increase in control with real consequences for plurality.
2.12
I
2.13
Quasi-judicial procedure
Both Dr Cable and later Mr Hunt recognised that they were exercising a statutory power in a quasi-judicial capacity. What then are the requirements of a quasi-judicial procedure? Counsel for News Corp rightly referred in their helpful closing submissions both to the seminal case of Council of Civil Service Unions v Minister for the Civil Service,27 which is authority for the proposition that the requirement is to act with procedural propriety, the precise requirements of which may depend upon the specific legislative context in which the decision is taken; and then R v Home Secretary ex p Doody28 in which Lord Mustill (with whom the
27 28
1983 UKHL 6; 1985 1 AC 374 1993 UKHL 8; 1994 AC 531
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rest of their Lordships agreed) distilled six broad principles of fairness from the authorities at p560: What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regard both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer. 2.14 From these broad principles it follows that there is a degree of flexibility as to the precise approach adopted by a quasi-judicial decision maker, so long as in the particular circumstances of the decision the procedure adopted conforms to the broad principles and the decision is free from either actual or apparent bias. Bias, whether actual or apparent, will taint and usually vitiate a decision. The test for apparent bias is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision maker was biased: Porter v Magill.29 It is important to recognise the significance of the words a real possibility of bias because they set the threshold for a finding of apparent bias well below a finding that there is, or has been, actual bias. The requirement for an independent and impartial tribunal does not mean that a person cannot have a prior opinion on the matter in question, so long as that opinion can be and is put aside and is not such as to gives rise the appearance of bias. As Dr Cable put it:30 Yes. I think the key phrase is that an intervention decision must be taken with an independent mind, and I have given illustrations earlier in my political career of having encountered quasi-judicial decision-making before. I think with an independent mind doesnt mean with a blank mind. Most people in public life have views, opinions. Probably, if theyre politicians, those opinions and views have been on the record, and the requirement on me and people in this position is to set those on one side for the
2.15
2001 UKHL 67; 2002 2 AC 357, para 103 pp7-8, lines 22-9, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-30-May-2012.pdf
30
29
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sake of making this decision, to consider representations, the evidence, the facts, and decide on that and only on that. 2.16 An obvious but important feature of the quasi-judicial function which the Secretary of State exercises in relation to the regulation of media mergers is that the decision is his alone and is not a matter for collective cabinet decision. It is not a political decision. Crucially, the decision maker must address the appropriate test, taking into account all relevant evidence and, equally as important, ignoring all irrelevant evidence. Thus, when applying the media plurality test, wider political and economic considerations are irrelevant and must be ignored. It is against these requirements that the conduct and consideration of the bid first by Dr Cable and then by Mr Hunt, their advisers and officials, fall to be measured.
2.17
2.18
Precedent and experience

2.19 The media plurality test had been applied only once previously, in 2006, when BSkyB had acquired shares in ITV plc.31 There was therefore limited practical experience of its application, no firmly established practice for conducting the test, and the guidance had barely been tested. There was, though, in the Department of Business, Innovation and Skills (BIS), significant experience in quasi-judicial decision making in other contexts and Dr Cable himself had had some experience of quasi-judicial decision making, albeit many years before when he was a Glasgow city councillor.32 Another case, the acquisition of Channel 5 by Northern & Shell, was being considered at around the same time as the BSkyB bid. Dr Cable decided not to intervene in that case, distinguishing it from the bid for BSkyB:33 In my view, a less robust case for intervention existed in relation to Channel 5 and Northern & Shell. Channel 5 is substantively different to BSkyB in that it is not a source of news the news programmes that are broadcast on Channel 5 are provided by Sky News. Channel 5 is not central to news provision in the UK. In addition, Northern & Shell newspaper titles (the Daily Star, Daily Express and the Sunday Express) have a significantly lower market share in the region of 10 to 14%, compared to 37% for News International titles. On an assumption that there was only a limited prospect that Channel 5 would develop the capability to provide news to other broadcasters in a similar way to ITN and Sky News, the prospect of a negative impact on plurality turned on the extent to which plurality might be damaged by a possible closer alignment between news broadcast by Channel 5 and news as covered by the Northern & Shell titles. I considered advice in this matter and decided that, while it was open to me to intervene in this case, I should not do so. Bearing in mind the nature of the enterprises involved, and taking into account the Guidance, I did not consider this was an exceptional case in respect of which intervention on public interest grounds was appropriate. There
p5, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-2.pdf. This transaction was the subject of a Competition Commission report, appeals to the Competition Appeal Tribunal and thereafter to the Court of Appeal 32 pp2-3, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-30-May-2012.pdf 33 p13, paras 51-52, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-VinceCable-MP.pdf
31
2.20
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were insufficiently strong grounds for believing the merger would actually reduce the number of sources of news available to people in a way that was detrimental to the public interest. 2.21 DCMS had no experience of applying the media plurality test but it did have some experience of conducting quasi-judicial decisions in relation to the National Lottery and gambling.34
3. June 2010 December 2010: The Rt Hon Dr Vince Cable MP and the Department for Business, Innovation and Skills
Initial reaction
3.1 News of the bid broke early on 15 June 2010. The Press Association reported it in terms which make clear the commercial sensitivity of the regulatory process and which are a reminder that this is an area in which a balance has to be struck between regulation and free operation of the market:35 BSkyB said today that it had rebuffed an initial attempt by Rupert Murdochs News Corp to take full control of the UK satellite broadcaster. The 700p-a-share approach for the 61% of BSkyB that NewCorp does not currently own values the FTSE 100 Index company at around 12 billion. BSkyB said the proposal significantly undervalued the business and called for an offer in excess of 800p a share, in part to compensate shareholders for the wait they would face while regulatory clearance was sought... (emphasis added) 3.2 James Murdoch immediately requested and was granted a telephone call with Dr Cable. In his evidence Dr Cable described himself as having been in listening mode during this conversation.36 He denied giving any indication of his views: I gave no indication of my views on the bid one way or another.37 The short formal minute of the conversation made by his officials is consistent with this.38 Dr Cables account was disputed by both James Murdoch and Mr Michel. In an internal email, Mr Michel quoted Dr Cable as having said that: there would not be policy issue in this case and opined: We should have recorded him!39 James Murdoch addressed the issue in the course of answering a broader question about a supportive statement about the bid made by Mr Hunt: ...this is one part of the government, saying: Look, we dont see any issues here, well probably be its going to be fine, which is consistent with what Mr [sic] Cable had told me on the telephone.40
3.3
pp11-12, Jonathan Stephens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-25-May-2012.pdf 35 p2, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-2.pdf 36 p27, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-30-May-2012.pdf 37 p14,para 54, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Vince-CableMP.pdf 38 p3, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-2.pdf 39 p3, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf 40 p107, lines 7-10, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-24-April-2012.pdf
34
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3.4
It is not necessary to resolve this conflict in the evidence for two reasons. First, whether or not Dr Cable expressed a provisional view, he later came to a very different conclusion and he did so on the basis of reasons which were both proper and well supported. Second, whatever else the remaining evidence about the bid shows, it certainly does not reveal any appearance of bias on the part of Dr Cable in favour of News Corp. An internal BIS email suggests that in the conversation on 15 June 2010 Dr Cable had not ruled out meeting James Murdoch. His subsequent decisions not to do so were to become a source of frustration to News Corp:41 At the end of the call this week James suggested he and the SoS meet up at some point, SoS vaguely agreed. They now want a slot in the diary.
3.5
3.6
Initially, Dr Cables officials considered that it would be unreasonable to refuse a meeting although they contemplated that the Secretary of State would once more be in listening mode:42 It seems reasonable to assume that since the phone call earlier this week, the two companies are closer to reaching a deal and that James Murdoch wants to update the SofS and, in the light of their experience in the ITV share acquisition case, would want an indication from the SofS as to whether he would use his powers of intervention. It therefore would perhaps seem unreasonable to refuse their request. The SofS should however, be in listening mode and I would suggest that he should follow the lines to take (background would remain the same) as provided in my e mail of late Tuesday evening. It might help if a CCP official could sit in. (emphasis added)
3.7
Dr Cable decided not to, and the efforts of Mr Michel to secure a meeting for his principal were rebuffed:43 ...Also I understand that Frederic Michels office called my private secretary on a number of occasions to try to arrange a meeting but after considering advice I decided to decline any meeting.
3.8
Dr Cable explained why:44 Well, the name Frederic Michel didnt register on my radar, but I was aware that there was a request to have a meeting, and I didnt wish to be disrespectful to Mr Murdoch. I do meet major investors. But in this case I thought there were compelling reasons not to meet him. First of all, there was a legal risk because the subject which he clearly wished to talk about was something couldnt talk about, that if I did meet him this might be perceived by other parties to be partial in his direction, and I would therefore have to see them, and there were lots of them, so potentially very large numbers of meetings which, by definition, couldnt have any substance, and but I think the key reason was I didnt actually think it was necessary, because they had an opportunity to, through Hogan Lovells, to put their opinions in writing, their submissions. They did so on several occasions.
p8, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-2.pdf p7, ibid 43 p14, para 54, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Vince-CableMP.pdf 44 pp28-29, lines 16-8, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-30-May-2012.pdf
42
41
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3.9
Dr Cable had been invited to News Corps summer party, due to be held the next day on 16 June 2010, and had been intending to attend that function. Mr Michels email reporting the telephone conversation between James Murdoch and Dr Cable appears to record that at that stage Dr Cable was still intending to go to the function: Cable said he was coming as planned tomorrow.45 In the result, because of the bid, Dr Cable decided that it would not be appropriate to attend and did not do so.46 Thus, from an early stage Dr Cable decided to avoid personal contact with News Corp either directly in connection with the bid or at all. It was open to him to decide whether to intervene on the basis of written submissions. He was not obliged to give Mr Murdoch an oral hearing. It was also prudent for the decision maker not to be seen to be socialising with one party to the bid whilst the decision was pending. The first lines to take, worked up by officials for Dr Cable, wisely advised him not to rush to a decision: ...recommendation is not to intervene at this stage, or at least until more is known and until the merger has been notified to the EC.47 Preliminary advice on the substantive decision followed shortly thereafter. Subject to consideration of any arguments put forward to the contrary by interested parties, it recommended against intervention:48 Our initial view is that there is no reason to make a public interest intervention in this proposed transaction since it appears to involve no change in practice to the extent to which people have access to a wide range of views and opinions. Nevertheless, interested parties may put forward a case for intervention and will need to consider carefully any arguments that may be put forward on the matter. Accordingly, in any public statements BIS makes on the matter, it is important to reserve the Secretary of States position and not appear to have already reached a conclusive decision.
3.10
3.11
3.12
In coming to this view, officials had spoken about the proposed transaction with colleagues at Ofcom, DCMS and the OFT. Both Ofcom and the OFT are recorded initially to have been unconcerned by the bid, contrary to their eventual positions. The officials at DCMS had properly identified that the intervention decision was not a matter for them:49 We have spoken about the transaction with colleagues at Ofcom, DCMS and the OFT. Ofcom indicate that while the transaction may give Newscorp increased influence over BSkyBs output , they already treat Newscorp and BSkyB as one entity for the purposes of the media ownership rules provided under the Communications Act 2003. DCMS officials had no points to make relevant to the decision on whether or not an intervention might be appropriate a decision that falls to be taken solely by the BIS Secretary of State. The OFT indicated they did not consider the transaction likely to raise substantive competition concerns.
Submissions to Dr Cable
3.13
45 46
There is no statutory duty to consult in relation to a decision on whether to intervene on public interest grounds and Dr Cable chose not formally to invite submissions or to meet
p3, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf p28, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-30-May-2012.pdf ; p14, para 54 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/WitnessStatement-of-Vince-Cable-MP.pdf 47 p6, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-2.pdf 48 p14, para 9, ibid 49 p14, para 10, ibid
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interested parties (including News Corp as mentioned above). Nevertheless, he did inform people that it was in order to send him substantive submissions.50 Whether as a result of this or entirely of their own volition, many people and organisations sought to make their views on the question known to the Secretary of State. He did not initiate any exchange of those submissions which he did receive.51 3.14 The first such approach came on 23 June 2010 when Brendan Barber, General Secretary of the TUC wrote to express grave concerns about the bid and sought a meeting to discuss the issue: ...I would welcome the opportunity for myself and colleagues representing workers in the media industry to meet with you to discuss this urgent matter further....52 A response, which took some time to prepare and went through a number of drafts, was sent on 2 August 2010. It explained the decision which the Secretary of State had to make, referred to the Guidance, and invited the TUC to submit written arguments on the matter.53 That approach was subsequently followed when responding to numerous others who intimated their opposition to the transaction but did not address the specific question which Dr Cable had to decide. On 20 July 2010 Hogan Lovells, solicitors acting for News Corp, submitted an 8-page document which it described as a preliminary briefing and which methodically argued against intervention.54 Their thinking chimed with that of BIS officials whose reaction is recorded in an internal email:55 The Hogan Lovells analysis accords with our own assessment of the position which is: (i) that the transaction appears to make no substantive difference to the state of plurality of persons with control of media enterprises since News Corp is already deemed to have the power to influence the output of BSkyB and (ii) that our published guidance on use of the power to intervene suggests this is not a case in which we would expect to use the power to intervene save in exceptional circumstances. We remain open to argument on the matter but there would need to be substantive information on which to base different conclusions about the case for a public interest intervention. 3.17 There followed a growing number of submissions against the bid, urging Dr Cable to intervene, from media companies and others. On 30 July 2010, Enders Analysis (Enders) produced a 20page submission, packed with statistics, which considered the UK TV and newspaper markets, and News Corps strategy for growth (as seen by Enders), before identifying three specific plurality concerns which are set out in full below because the same or very similar points were made in many of the other submissions objecting to the bid:56 First, products currently separately offered by BSkyB and News Corp titles may be combined in bundles, discounted or provided without charge. For instance, BSkyB
50
3.15
3.16
p8, para 30, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Vince-CableMP.pdf 51 p31, lines 22-23, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-30-May-2012.pdf 52 p9, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-2.pdf 53 pp71-72, ibid 54 pp64-82, ibid 55 p37, ibid 56 pp47-67, 85, ibid
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could bundle News International titles with monthly entertainment to its millions of customers in the UK. If this happens, long-held reader loyalty to titles such as The Mirror, The Daily Telegraph and even The Daily Mail could be severely tested. In other words, reader loyalty would be measured by a new and entirely different yardstick than previous competitor options, such as temporary price discounts or a new supplement. Strategic initiatives of this nature could lead to a much more rapid decline in competitor newspaper circulations than we have assumed, boosting News Corps newspaper market share above 40% by 2014. Magazine publishers already know something about this: Sky distributes 7.4 million copies every month of its magazine to subscribers of its TV services, making Sky the largest circulation magazine in the UK based on ABC data. Second, the widespread availability of fast broadband is encouraging the rapid convergence of press and television. Todays newspaper websites contain increasing numbers of video clips and extended interviews. Once the News Corp purchase has been completed, stories from Sky News (especially video) will presumably be carried more and more frequently on News Corp websites. Links to newspaper stories could appear at the bottom of the Sky News screen. Progressively, News International papers and BSkyB channels, particularly Sky News, may merge into one stream of fact and opinion. If this occurred, plurality would decline, even if the combined organisation continued to maintain newsrooms that are nominally separate. Third, the loss of independent BSkyB shareholders will allow News Corp greater opportunity to influence tacitly or otherwise, the editorial coverage of Sky News and other BSkyB channels. The 2006 investigation by the regulators of the BSkyB purchase of ITV shares found no evidence of proprietor intervention in Sky News under its current shareholding structure, but this could change under full ownership. Today, the presence of strong independent directors of the company, many of whom have substantial external reputations, helps protect independence and diversity of what appears on screen, particularly on news programmes. 3.18 The Enders submissions arrived on 2 August 2010,57 on the same day as an internal email records that Dr Cable was questioning News Corps submissions (and by implication the views of his own officials) as well as expressing an interest in what others thought about the proposed transaction. The document marks the start of a gradual turning of the tide against News Corp on the question of intervention:58 The SoS is of the view that News Corporations lawyers can hardly be considered an independent source of advice. The SoS has read strongly argued views to the contrary. He is somewhat concerned to read that OFT does not expect the merger to give rise to competition concerns. Does this not suggest that they have prejudged the issue? Or have they already carried out an evaluation? The SoS has also queried what other representations have been received, Have [sic] other media groups written letters? The BBC? Are we expecting representations from these and others? 3.19
57 58
In his evidence to the Inquiry, Dr Cable stated:59
p74, para 5, ibid p68, ibid, it is not clear whether the strongly argued views to the contrary is a reference to the Enders report which had arrived that day or to the numerous letters from MPs (on behalf of constituents ) and members of the public which had by then been received: p73, paras 2-3, ibid 59 p10, para 38, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Vince-CableMP.pdf
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...In the light of the more substantive representations which began to come in, I began to believe that there were genuine substantive concerns about the merger and that the case for intervention should be explored very thoroughly before reaching conclusions on the matter. 3.20 The internal response of Dr Cables officials was to stick to their original view, and point to their experience of the plurality test in the only previous case in which the test had been applied:60 ...Our own analysis of these questions leads to the conclusion that intervention appears unlikely to be appropriate in this case as briefly set out in my original briefing note submitted on 25 June. The Hogan Lovells submission on behalf of Newscorp draws much the same conclusions for the same reasons. This is not surprising. We all have direct experience of using the powers to intervene in media mergers having done so in respect of BSkyBs acquisition of a 17.9% stake in ITV plc and this heavily contested case examined very thoroughly before the courts the limits of the Secretary of States powers. ... ...On an initial reading, however [the Enders submission] appears unlikely to raise points that could lead us to reach different conclusions about the merits of an intervention by the SofS in either of these cases. 3.21 Guardian Media Group (GMG) also wrote in opposition to the bid on 30 July 2010.61 British Telecom (BT) followed on 13 August 2010 with a nine page submission62 and Trinity Mirror on 16 August 2010.63 Replies were sent to each of these organisations and to Enders. GMG, which had written only a short letter, was referred to the Guidance and invited to submit arguments which took the Guidance into account. The other parties submissions were acknowledged and they were advised also to make submissions to the EU Commissions DG Competition because many of the points which they had raised appeared to BIS to relate to potential competition impacts.64 On 25 August 2010 Dr Cable met Brendan Barber of the TUC at a regular quarterly meeting. The minutes record that Mr Barber raised the question of the bid but Dr Cables evidence, which is consistent with the minutes, confirms that the Secretary of State was careful not to give Mr Barber an oral hearing (which would have been inconsistent with his approach towards other interested parties) and simply responded by reiterating the request for written submissions. The minutes state:65 BB said that the reported Newscorp acquisition of BSkyB was a serious issue for media unions. BB said that there were practical, industrial issues on the media plurality issue which the unions were concerned about. SoS said that there was a careful process to be followed, and that he had no pre-conceived judgments, but he said he would be willing to hear any genuine representation and consider the evidence.
3.22
60
p73-74, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-2.pdf See also the background note: p91, ibid 61 p45, ibid 62 pp79-87, ibid 63 pp92-94, ibid 64 pp107-114, ibid 65 p97, ibid
1314
and Mr Cables evidence was:66 ...I have regular quarterly meetings with the TUC and the matter was raised at my meeting with them on 25 August 2010 but I declined to discuss the matter further... 3.23 Officials next worked up a submission dated 3 September 2010 with advice for Dr Cable who, officials believed, was keen both fully to understand the situation and to know: What would a representation which does provide valid grounds for him to intervene look like?.67 They did not find the arguments straightforward: The arguments are complex and we recommend a further discussion before you make a decision.68 It was at this point that the low statutory threshold for intervention was expressly drawn to Dr Cables attention:69 In summary, we believe that the substantive arguments as to why this merger might be deemed to result in insufficient plurality of persons with control of media enterprises are not strong. Nevertheless, the legislation provides a deliberately low legal threshold for taking a decision to issue an intervention notice. You need only believe it is or may be the case that the specified public interest consideration is relevant to a consideration of the merger. The prospect of legal challenge arising at this initial intervention stage appears low since the process involved is relatively short and would not involve significant burdens on the parties to the merger. However, issuing an intervention notice initiates a formal statutory process and places you in the position of taking formal decisions in accordance with the requirements of the Enterprise Act 2002. The nest stage in that process would be for you to decide whether or not to refer the merger on public interest grounds to the Competition Commission. At this second stage, the evidential threshold is higher and the prospects of legal challenge much greater. The evidence you would have on which to base that decision may well be substantively the same as the evidence you have already received in submissions from the parties to the merger and from interested third parties.
Counsels advice
3.24 Counsel with relevant expertise was instructed on 9 September 2010 and she advised in conference on 16 September 2010. Legal privilege in that advice was very helpfully waived and the Inquiry has had the benefit of sight of the instructions to counsel, notes of the conference and subsequent emails recording further advice given subsequently as events unfolded.70 Counsel took a very different view to that initially taken by officials within BIS. Her advice marked a turning point insofar as advice given to Dr Cable is concerned, pointing very clearly in favour of intervention. Counsel advised that it was entirely open to the Secretary of State to conclude that it is, or may be the case that media plurality is, or may be, relevant to the proposed acquisition. It would be difficult to argue, in the face of submissions from Enders and others, that media plurality could not be a consideration. The fact that the European Commission would investigate any potential market distortion would not be a good enough reason for not intervening, if it appeared there may be concerns about media plurality. Deciding not to intervene would be a conclusive determination of the question of media plurality and would carry a greater risk
3.25
p15, para 57, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Vince-CableMP.pdf 67 pp101-102, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-2.pdf 68 p116, ibid 69 p116, ibid 70 pp129-138; 142-143; 151-155; 178-179; 238, ibid
66
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of successful challenge than a decision to intervene. So far as the Guidance was concerned, this merger may be regarded as exceptional since it involved a large number of news outlets coming under complete common control (because Sky News provided news to Channel 5 and local radio) and was analogous to the example given in paragraph 8.8 of the Guidance. As for the prospects of challenge, News Corp would be unlikely to challenge a decision to intervene and, if it did, then it would be more likely than not to be unsuccessful. On the other hand, the chances of a decision not to intervene being successfully challenged were higher than the chances of the opposite decision being successfully challenged.71
Further submissions to Dr Cable

3.26 Meanwhile, submissions advocating intervention continued to arrive. BT wrote again on 16 September 2010. The author of that letter, Ian Livingstone, CEO of BT Group, referred to having spoken briefly to Dr Cable about the bid: We spoke briefly about this when we met recently and I thought it would be helpful if we clarified a few points again as you still be considering the matter72 before summarising and augmenting BTs previous submissions. The BBC expressed its concerns by letter on 20 September 2010.73 It is clear that it was not possible for Dr Cable entirely to insulate himself from contact with interested parties as this reference to meeting Mr Livingstone and the meeting with the TUC referred to above demonstrate. However, it is hard to see how such encounters could have been avoided. It is all but inevitable that a person in Dr Cables position (and later Mr Hunts) would come across interested parties during the course of their other duties. That is the nature of the environment in which this quasi-judicial decision making was being conducted. The submissions received by BIS, arguing in favour of intervention, were not copied to News Corp by BIS. Nor was News Corp given any formal written indication by BIS as to the gist of the case against it. News Corp did obtain a copy of the Enders submission because it had been posted on the internet. On 20 September 2010, as is evidenced by an email of that date, Hogan Lovells, on News Corps behalf, intimated to BIS that it wished to respond to the Enders submission. They did so in writing in a very detailed letter dated 29 September 2010,74 arguing that Enders submission misunderstood and presented a flawed and misleading view of the relevant legal and regulatory framework for the assessment of media public interest considerations; relied on unsupported and speculative assertions concerning the effects of the proposed transaction; and was founded on selective and in certain instances, misleading public interest considerations in relation to the proposed transaction. On the day on which these further submissions arrived Dr Cable, with the assistance of his officials, was in fact preparing lines to take on News Corp predicated on a decision to intervene:75 As discussed, the SoS has amended the lines to take on Newscorp. It now reads: I have received various representations on this issue from a variety of [media] groups. It is my statutory responsibility to ensure that issues of media plurality are carefully considered in takeovers. Given the [serious] concerns [about plurality] raised with me in this case, I have asked the independent experts at Ofcom to investigate the matter
71 72
3.27
3.28
pp151-155 ibid pp144-145, ibid 73 pp146-147, ibid 74 pp166-176, ibid 75 p163, ibid
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and report back to me. [I will not comment any further on this case until I hear back from Ofcom]... 3.29 The arrival of News Corps further submissions prompted BIS to take further advice from counsel and to prepare a submission for the Secretary of State to consider with the further submissions. Counsel remained of the view that the grounds to challenge an intervention were not particularly strong given the significant discretion available to the Secretary of State in deciding whether to intervene, and the non-determinative nature of that decision.76 Officials continued to make ready for a decision to intervene: a draft statement to Parliament was prepared on 8 October 2010.77 On the same day, an opinion from solicitors Slaughter & May, supporting intervention, was submitted by an alliance of communications and media companies (the Alliance) comprising: the BBC, BT, GMG, ANL, Trinity Mirror and Northcliffe Media.78 Four of these companies had previously made individual submissions in opposition to the bid. A draft copy of the same advice was later submitted by the Financial Times (FT) on 14 October 2010 together with a letter supporting intervention.79 As with the Enders submission, News Corp was not provided with a copy of, or informed of the gist of the Slaughter & May advice by BIS. However, it obtained a copy of the draft advice and sent detailed written submissions in rebuttal to BIS on 27 October 2010.80 They were put to counsel but they did not cause her to change her advice:81 Counsel confirmed on Friday that nothing in the latest submission from Hogan Lovells caused her to change her previous assessment of the legal case for intervention and risk of challenge the existence of uncertainty about the impact on the public interest does not preclude intervention to require a more substantive initial assessment of such impacts. 3.33 The campaigning group 38 Degrees delivered a petition with 18,956 signatories on 14 October 2010.82 Officials considered that Dr Cable ought not to meet the group so as to preserve his impartiality in considering the merits of the case83 and Dr Cable did not do so. Support for News Corps position was expressed by Capital Research and Management, an American based investment management organisation which had client mutual funds holding an approximately 5% stake in BSkyB.84 Further support, in the form of a report by Berenberg Bank, appears to have arrived after the decision had been taken but before it was announced and was forwarded to Ofcom.85
3.30
3.31 3.32
3.34
I
pp178-183, ibid pp184-186, ibid 78 pp187-200, ibid 79 pp189-200, ibid 80 pp218-231, ibid 81 p238, para 1, ibid 82 pp161 & 201, ibid, p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC2-1-to-WitnessStatement-of-Vince-Cable-MP.pdf 83 p160, ibid 84 p216, ibid 85 pp253, 256-274, ibid
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The decision to intervene

3.35 Dr Cable decided to intervene. His decision was made public on the morning of 4 November 2010. News Corp was informed the evening before the announcement of the timing but not the substance of the decision.86 The timing of the decision followed formal notification of the proposed transaction to the European competition authorities by the parties to the deal. The Secretary of State explained his decision in these terms:87 Having regard to the Guidance, my view was that as the merger involved a situation where several significant sources of news would be coming under common control the situation was at least akin to examples given in the Guidance as to when such exceptional circumstances might arise. As such my intervention in this case represented a reasonable and appropriate use of my power to intervene. I took a decision to intervene which was on the basis of my belief that there was or may have been a public interest consideration specified in Section 58(2C)(a) of the Enterprise Act relevant to the consideration of the merger, namely to ensure that there is sufficient plurality of persons with control of media enterprises in the UK. This decision was one for me, and me alone, to take on the information before me. The decision I took was that it was appropriate to require Ofcom to undertake an initial investigation to enable the substantive arguments to be explored more fully. 3.36 Dr Cable did not seek to hide his concern about the political influence of the Murdochs, although he maintained that he recognised at all times the legal parameters of the decision he was taking. He continued: Having considered all the evidence and submissions, it seemed clear to me that the proposed merger did raise genuine concerns affecting the public interest and that these should be properly considered. In my opinion as a politician, I also believed that the Murdochs political influence exercised through their newspapers had become disproportionate. The accusation that leading political figures in the Conservative Party and the Labour Party had offered disproportionate access to the Murdochs [sic] was widely made, as was the perception that both parties had shown excessive deference to their views (as expressed through News International newspapers). But in both respects I recognised that I could only act within the constraints of the legislation as described above. 3.37 The effect of the EIN which Dr Cable issued on 4 November 2010 was to require both the OFT and OFCOM separately to investigate the proposed transaction and report to him by 31 December 2010.88 The OFTs remit was to advise on considerations relevant to making a reference to the Competition Commission on competition grounds and to decide whether it believed that a European relevant merger situation would be created if the transaction was executed. It also had a discretion to advise and make recommendations on the sufficiency of plurality of persons with control of media enterprises (because that public interest consideration was identified as relevant in the EIN) and to summarise any representations about the case which it received and which related to that issue.89 Ofcom had no discretion and was required to report with advice and recommendations on the effect of the media plurality consideration identified in the EIN on the case, as well as to summarise any representations
p249, ibid p12, para 47, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Vince-CableMP.pdf 88 p245, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-2.pdf 89 Article 4, Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003
87
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about the case which it received relating to that media plurality issue.90 In the result OFT and Ofcom reported to Mr Hunt and not to Dr Cable because responsibility for the bid was transferred whilst they were both investigating. 3.38 Hogan Lovells engaged BIS in correspondence about the reasoning for the decision but, in line with counsels earlier prediction, News Corp did not go so far as to seek judicial review of the decision to intervene.91 This process, whilst entirely proper, was confused by the fact that people made submissions at different times, and there was a lack of transparency arising from the fact that the representations made were not published by BIS (although in some cases they were published by those making them). Neither was it necessary for Mr Cable to explain the reason for his decision once he had reached one. A more formal, streamlined process in the future with more transparency both about the arguments being made and the reasons for the decision, might help to avoid any potential concerns about bias or appearance of bias.
3.39
Media lobbying behind the scenes

3.40 Of particular interest to the Inquiry was the behind the scenes lobbying activity related to the bid. The interactions between those acting on behalf of media companies and politicians concerning this multi billion pound proposed media transaction provide a good example of how easily the relationship can become unhealthy. Under this subheading, the Report seeks, in relation to the bid whilst it was Dr Cables responsibility, to examine who was lobbying behind the scenes, why they were doing it behind the scenes, whom they were targeting, what were they seeking, how were they going about achieving their aims, and with what results. The evidence makes abundantly clear that News Corp mounted a determined lobbying campaign in support of its bid from the outset which went well beyond the written submissions which it made to Dr Cable. As a matter of generality, James Murdoch explained:92 I think in any situation, any business is going to yes, is going to try to advocate the merits of its case, be it an investment case or a regulatory case, to a wide audience of policy-makers who may or may not be in a position to have some input into it. 3.42 The day to day lobbying effort was led by Mr Michel. In relation to the duties of public affairs executives James Murdoch was clear that:93 ...Mr Michels job was to engage with special advisers and at a political level with Westminster, to put it broadly. That is what a public affairs executive does.... 3.43 Mr Michel did not act alone. James Murdoch was also speaking to politicians about the bid, when the opportunity presented itself, and the evidence showed the interaction of others from time to time. Internally, a number of senior people are seen copied into Mr Michels emails reporting back his contacts with politicians, SpAds and officials.
3.41
90
Article 4A, ibid; p277, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/ExhibitVC1-2.pdf 91 pp286-287, 298-300, 303-305, 307-309, ibid 92 p98, lines 16-20, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-24-April-2012.pdf 93 p6, lines 11-14, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-24-April-2012.pdf
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3.44
In addition to his single conversation with Dr Cable, James Murdoch spoke to a number of senior politicians about the bid. The first of these was Mr Hunt to whom he spoke on 15 June 2010 (the day on which the bid was launched and James Murdoch also spoke to Dr Cable). When asked whether the bid was discussed, James Murdoch could not remember but he realistically thought that it would have been:94 I dont. I dont remember. I think but I mean, it was in those days around the announcement of the bid, so Id be surprised if it werent [discussed], and I would have taken the same position that I took publicly and that we took with anyone who would listen.
3.45
Mr Hunt confirmed that the bid had been discussed. Both at that time and in his evidence he did not hide his opinions which were broadly sympathetic to the bid. He was, of course, entitled to hold an opinion about the bid and it was entirely unsurprising that the Secretary of State for Culture, Media and Sport should have a view about a proposed transaction of this scale in the media sector:95 I have always been open about the fact that I was broadly sympathetic to the proposed acquisition prior to taking responsibility for it. I expressed those views when James Murdoch called me to tell me about the planned acquisition in June 2010.
3.46
Throughout the bid, Mr Michel maintained a dialogue with DCMS about the proposed transaction. This communication was conducted principally, but not exclusively, through one of Mr Hunts special advisers, Adam Smith. That contact (and contact with BIS and others) is primarily recorded in Mr Michels emails, but also in text messages; and it is further evidenced by telephone records provided to the Inquiry. At the outset of a consideration of his evidence, it is necessary to make two important observations about Mr Michels emails. First, Mr Michels emails reporting this contact to his colleagues are very often worded as if he has had direct conversations with Mr Hunt. As was made clear when the emails were disclosed to the Inquiry, and as was confirmed by Mr Michel in a statement exhibiting a detailed supporting analysis, that was generally not the case. In particular, he maintains that he had no conversation with Mr Hunt between 24 December 2010 and the end of July 2011 relating to the BSkyB bid, beyond two formal meetings which he attended as part of the News Corp team (and which are considered later in this section of the Report). Other contact during this period was limited to seeing him very briefly before a dinner and to some personal text messages (which are also considered later in this section of the Report). Mr Michel wrote as he did as a form of shorthand:96 At no point between 24 December 2010 and the end of July 2011 did I have any direct conversation with Jeremy Hunt relating to the BSkyB proposal beyond the two formal meetings I attended with the News Corp team referred to above. Given the absences of direct interaction with Jeremy Hunt which I have just described, it may appear surprising that within the emails in Exhibit KRM18 there are emails after 24 December 2010 the language of which suggests that I had frequent contact
3.47
94
pp108-109, lines 24-3, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcriptof-Morning-Hearing-24-April-2012.pdf 95 p6, paras 28-29, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/JH-Witnessstatment-MOD300005597.pdf 96 p3, paras 18-20, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-FredericMichel1.pdf
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with Jeremy Hunt on the BSkyB proposal. In the emails I use language such as spoke to Hunt, had a call with JH, JH said, Jeremy said and other variations. I often use the wording JH confidential as a heading for emails. I want to make absolutely clear that such phrases are no more than shorthand for what I was told by someone within Jeremy Hunts office, almost invariably his special adviser Adam Smith. For the purposes of these emails, I did not distinguish between Jeremy Hunts advisers and him personally. His advisers were there to assist and advise Jeremy Hunt and it was my understanding that when they told me something, it was always on behalf of the Minister and after having conferred with him. It was on this basis that I relayed the information to my colleagues in the emails, using this form of shorthand. (emphasis added) 3.48 Second, the terms in which Mr Michel relayed information were often not as accurate or precise as they might have been, and he did not always clearly distinguish between what he had been told and his own thoughts. A number of witnesses commented upon this, or took issue with specific examples, particularly Mr Smith: ...I do not always recognise them to be an accurate reflection of conversations which I had with Mr Michel.97 In some instances there was clear exaggeration. Further, Mr Michel is often relating the thoughts of one person about what another is thinking or likely to do, in circumstances where it might either be speculation or simply wrong. For this reason, Mr Michels emails have been treated with real caution. Even so, they remain of very considerable evidential significance by providing an insight into News Corps media lobbying effort. Mr Michel himself explained: ...Sometimes I would add some elements that can be helpful for the team.98 Rupert Murdochs evidence was:99 Q. Were you not surprised by the degree of apparent closeness between Mr Michel and Mr Hunts office? A. No, and I dont want to say anything against Mr Michel, but I think there could have been a little bit of exaggeration there. 3.51 Dr Cable, when dealing with one of Mr Michels early emails said:100 Would you just allow me to make a general comment on this reference to people close to me, because there are continued references to so-called advisers, people who are close to me. I have no idea who these people are. Nobody was authorised to speak on my behalf, and there are whole sets of comments like this which I dont recognise, so just so I dont have to repeat that in response to every question. 3.52 On the day that the bid was launched, Mr Michel wrote in an email that he had Had a call from Hunts adviser who Said there shouldnt be media plurality issue and believed the UK Government would be supportive throughout the process [despite what the Standard for
3.49 3.50
p20, para 59, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Adam-Smith. pdf; pp20-50, ibid 98 pp42-43, lines 25-1, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-24-May-2012.pdf 99 pp17-18, lines 24-3, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcriptof-Morning-Hearing-26-April-2012.pdf 100 p41, lines 15-22, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-30-May-2012.pdf
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example is suggesting this evening].101 Mr Smith did not deny that a conversation took place but he did deny saying that the UK Government would be supportive throughout the process and took issue with other parts of the email. 3.53 A second email stated that Jeremy just called, and recorded that in an interview for the FT Mr Hunt had said that the bid was: matter for competition authorities but he didnt see any problems.102 Mr Hunts actual words were: It does seem to me that News Corp do control Sky already. So it isnt clear to me that in terms of media plurality there is a substantive change, but I dont want to second guess what regulators might decide.103 The impact of this public comment had later to be taken into account by the Prime Minister before deciding to transfer the decision to Mr Hunt. The above contacts were the start of a pattern of behind the scenes lobbying extending far wider than the actual decision maker, or even his department, but also to DCMS, no doubt because of its media portfolio and, in due course, to a number of others across Government and beyond. At this early stage of the bid, it is contact with BIS that was the primary objective of Mr Michels efforts. By 23 June 2010 Mr Michel was following up James Murdochs telephone call of 15 June 2010 to Dr Cable and working on procuring a meeting between the two. As James Murdoch emphasised in his evidence, it was a face-to-face meeting at which to put his case that he really wanted: ...all we wanted to do was to be able to sit down in a proper way ...Please sit us down and let us make our case.104 This must have been a priority for Mr Michel but he received a disappointing response from BIS, in keeping with Dr Cables decision not to meet the parties, which he reported by email to James Murdoch in these terms:105 Vince has been advised by his team it would be better to meet with you once things have settled down on the Sky process in order to avoid any media questions on the purpose / content of the meeting. Vince is keen to meet for a catch-up as you both discussed on the phone. 3.56 The email is not to be read as meaning that Mr Michel had direct contact with Dr Cable, in view of the shorthand that the former was prone to use. It may be that the reference to meeting for a catch-up as discussed on the phone relates to the conversation between Dr Cable and James Murdoch on 15 June 2010, in which a BIS official had understood Dr Cable to have vaguely agreed to meet James Murdoch.106 The lobbyist did not have to report to James Murdoch a meeting with Mr Hunt on 28 June 2010 because Mr Michel, James Murdoch, together with Matthew Anderson of News Corp, were all present. For his part, Mr Hunt was not accompanied by officials and the meeting was not minuted, although he thought that the bid would have been discussed. He explained that it was one of a number of such meetings that he held with industry leaders during the early days of his tenure at DCMS:107
3.54
3.55
3.57
I
101 102
p4, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf p5, ibid 103 p6, para 30, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/JH-Witness-statmentMOD300005597.pdf 104 p5, lines 7-8, 12-13, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcriptof-Afternoon-Hearing-24-April-2012.pdf 105 p9, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf 106 p8, Dr Vince Cable http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-2.pdf 107 p10, lines 12-25, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf
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A. Yes. I was told by my officials that it was entirely proper to have meetings where there were officials present who took minutes, and meetings where there werent officials present and minutes werent taken and it was entirely my discretion and I had that meeting with Mr Murdoch. I also had meetings with other officials, with the chairman of the BBC Trust, the head of ITV and a number of other people when Id just become Secretary of State. Q. Do you believe that the BSkyB bid was discussed on that occasion? A. I would be very surprised if it wasnt discussed, because obviously it would have been top of Mr Murdochs mind. I dont remember any particular discussions... 3.58 By 28 July 2010, Mr Michel was reporting contact with people very close to VC asserting that:108 -he is keen to be seen as the most pro-competition SoS and as we know he is very much anti-regulation -on our particular issue, he strongly believes the deal doesnt change the market situation or would have any impact on media plurality. 3.59 Whether those views really were the views of Dr Cable about the bid at the time is unlikely, Dr Cable denied that they were.109 The views recorded are consistent however with the views of at least some of the officials within the Department at that time and with the advice that Dr Cable was receiving. When the journalist Robert Peston asserted on 15 September 2010 that Dr Cable was likely to issue an intervention notice, Mr Michel turned to DCMS to try and check the position. He texted Mr Hunt directly, who replied that he did not know anything. Mr Michel then reported that reply to colleagues in his idiosyncratic shorthand and in terms which went beyond those of the text which he had received: Jeremy Hunt is not aware and thinks its not credible at all. He is checking now.110 He must have thought that there was a least a chance of obtaining some confidential information about the bid this way, although there is no evidence that he did in fact do so. Mr Michels emails to his News Corp colleagues indicate that he began to try a new tack soon afterwards by engaging key Liberal Democrat politicians. On 20 September 2010 he reported:111 Had chat with Don Foster; DCMS spokesman for Libdems this morning. Very relaxed about the bid cant see plurality review taking place. 3.62 A week later Mr Michel had Talked to Vinces main economic adviser, who sits in the Lords, over the week-end. He is leading on this for him. The peer had been reassuring (although by that time Dr Cable was in fact well on his way to deciding against NewsCorp): I was told there is absolutely no reason to believe he would want a referral. Mr Michel was planning on keeping lines of communication open and sharing News Corps arguments.112 The peer was
3.60
3.61
p6, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf p41, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-30-May-2012.pdf 110 p25, Frederic Michel http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM81.pdf; and p7, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf 111 p8, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf 112 p10, ibid
109
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probably Lord Oakeshott.113 Dr Cable was clear in evidence that in fact no one was leading for him. Whatever Lord Oakeshott actually said, it must have been in a personal capacity. 3.63 That is not to say that Dr Cable had had no contact with Lord Oakeshott. He explained how he had spoken to Lord Oakeshott and a number of Liberal Democrats including Don Foster, who also features in Mr Michels emails. Dr Cable emphasised that he only ever sought background and context from these colleagues and that he did not seek their views on the actual decision that he had to make:114 Well, because I just wanted background understanding of the legislation and how it had originated. I had no background in media policy... I wasnt seeking their opinion on whether the merger was good or bad or whether I should intervene, but I did think it was useful to have a background understanding of the kind of questions you have just been asking me. 3.64 On 8 October 2010 Mr Michel reported seeing ... an adviser to Cables team on business issues and relayed details in a lengthy email. Whoever this was gave Mr Michel the impression that there was a strong political influence playing on the pending intervention decision:115 -at the moment, they are assuming Vince will refer because of the political pressure, the heavy media debate and the need for him to be seen as bringing scrutiny to a Murdoch transaction. -there is real unease in Libdem ranks over Coulson and the relationship to NI. Simon Hughes, deputy leader, is on a mission to make this an NI issue. The more it is linked to NI/NoW, the more it will stay political and toxic... 3.65 The assumption quoted above turned out to be correct as to the result but is not as to the reasons for it. Significantly though, it fuelled a growing belief on the part of Mr Michel that the wider political agenda was important and that advantage might be had if News Corp was to assist Dr Cable politically. The conversation also gave rise to renewed tactical thinking as to the best way to refine the lobbying effort. As Mr Michel recorded later in his email report:116 -the adviser was very clear that if we try to aggressively push Cable, it will have a negative impact. But changing the narrative in the main media would help him politically a lot and help him inside the Cabinet. -advised to brief all the key lib-dems in coming weeks and go through the impact of the transaction is the key since it was made clear that the media agenda has had a very negative influence on the decision-making process -Many people around Cable are from the left or Labour and are briefing against us. We need to engage with them behind the scenes even more. -Its the right timing as Parliament is back Monday.
p45, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-30-May-2012.pdf; Dr Cable thought that Lord Newbys comment might also have been relayed but p17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf suggests that Mr Michel did not meet Lord Newby until later 114 p13, lines 8-10, 17-20, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcriptof-Morning-Hearing-30-May-2012.pdf 115 p12, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf 116 p12, ibid
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NB: the Coulson/NI issues are agitating Cables political base in a major way and there is absolutely no upside in trying to use NI in any lobbying. I am seeing the Chief Exec of the LibDem Tuesday on it. -regarding items we could help Cable with: we should try to help him make his pro business arguments, for example supporting his campaign to bring flexibility to migration cap and work with his team (I can get the people in the City who are helping him to come see us). Cable needs help in working with the City and we can have a two-way beneficial conversation with him. (emphasis added) 3.66 Political and media considerations were irrelevant to the decision which fell to be taken by a specific minister in accordance with a test prescribed by statute. But News Corp clearly believed that Dr Cable might have been capable of being influenced by these extraneous factors and Mr Michel was beginning to contemplate how the companys corporate muscle might be deployed in order to try and influence the decision by helping Dr Cable politically. Dr Cable was clear that in fact he maintained his focus on the correct test.117 Had he been influenced as intended, then the proper exercise of the media plurality test would have been vitiated by irrelevant considerations. In the meantime, Mr Michel and Rebekah Brooks had met Mr Hunt and Mr Smith at the Conservative Party Conference on 5 October 2010. Mr Michel reported it to James Murdoch as: ...a very useful meeting with Jeremy Hunt today on the bid ....118 Mr Hunt recalled how: ...I think they expressed some concern that they werent getting a sympathetic hearing from Vince Cable, but not much more than that and thought that he: ...would have said that my own view broadly speaking was that I didnt think there was a plurality issue, so I would have probably expressed some surprise that Vince Cable may have thought there was more of a problem.119 The opportunity was plainly used to lobby Mr Hunt in the hope that it might have led somehow to influencing Dr Cable. Mr Michel followed up the encounter by sending Mr Smith information about the bid for Mr Hunt.120 The provision of information which News Corp thought relevant to the bid to Mr Smith, for Mr Hunt, was to become a feature of their relationship. On this occasion the material was passed on to Mr Hunt and his reaction to it communicated back to Mr Michel by email: Jeremys [sic] response to this persuasive.121 The effect was not a profound change of mind. Mr Hunt was not hostile to the bid. But Mr Michel clearly thought it important to keep Mr Hunt abreast of the issue and on his radar. On 12 October 2010, Mr Michel again spoke to Vinces main adviser and reported the conversation back to colleagues by email. The email set out advice to target Lord Oakeshott and how to go about it. There was fresh mention that the referral decision would be a political one and advice to keep briefing certain politicians:122
3.67
3.68
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pp50-60, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-30-May-2012.pdf; pp14-15, Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/ Witness-Statement-of-Vince-Cable-MP.pdf 118 p11, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf 119 p11, lines 18-22, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf 120 pp13-16, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf; pp36-37, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM81.pdf 121 p17, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf 122 p18, ibid
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-he had one strong advice (as mentioned previously): the most influential person for Vince now is Lord Oashekott [sic], who is a difficult character and hates lobbying (and doesnt like our empire either ...) and who Vince talks to more than 10 times / day. It was suggested that we should try a very soft approach with him; get him meet with James Harding to get his views on some of BIS key items, like migration cap, and get me to pop in at some stage to give him an update on the current battle we face and inform his views. It would be a much better setting than a direct lobbying conversation. Do we think its ok? -the referral decision will be a political one, especially if tuitions [sic] fees debate gets nasty in Vinces party and he need something to reassure his base ... -he also recommended to keep briefing senior lib-dems and key Cabinet members as we have started to do, to push things with Vince. 3.70 Dr Cable confirmed that he consulted Lord Oakeshott on other issues but not about the bid: ...I consulted him on other issues, banking for example, but certainly not on this issue as ... one of several people I rely on for general advice. He also denied speaking to Lord Oakeshott ten times a day or that wider political considerations were relevant to the intervention decision.123 But the perception as relayed by Mr Michel continued to portray the decision as political and, consequently, it was regarded therefore as one which might be influenced by wider political considerations. Mr Michel took forward the effort to identify key Liberal Democrats when, on 18 October 2010, he reported back on a meeting with Lord Clement-Jones, the Liberal Democrat spokesman in the House of Lords for culture, media and sport, explaining which Liberal Democrats he planned to target next, plainly in the belief that they were people to whom Dr Cable might talk to about the bid:124 ...His party is very keen to look at this as a political decision. ... We had a good chat re-key [sic] influencers around Cable. He has a little set of people around him he will call to ask for opinion and many Lib-Dem, Labour MPs will be writing to him to apply further pressure. ... It wont do any harm to explain our case to selected individuals who Cable is likely to call:
3.71
Lord Newby I will meet Lord Oakeshot- said he would be VERY receptive to a message from Patience on this: Matthew can discuss asap? Lord Razzal I will meet Chairman of Business Committee, Adrian Bailey will meet (emphasis added). 3.72 Dr Cable did not recall any Liberal Democrat MPs writing to him about the bid and told the Inquiry for the purposes of the intervention the only little set of people around him were his
pp51-2, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-30-May-2012.pdf 124 p19, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf
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officials and lawyers. He did confirm though that the modus operandi revealed in the email was an example of the kind of commercial lobbying which happens a lot:125 Yes. I mean lots of this happened, and one just has to learn to recognise it for what it is. But yes, I and part of my role as being Secretary of State is to be open to people with opinions, and to engage with them. ...I suppose Mr Michel was an example of a lobbyist at work. Im not making judgments about him and how he operated, but that is commercial lobbying indeed. 3.73 Mr Michel moved next from the strategy of targeting politicians who it was thought might be contacted by Dr Cable to a more direct, proactive and specific approach. Two politicians emerged whom Mr Michel hoped would actively contact Dr Cable to impress upon him the economic benefits of the bid should it succeed. On 1 November 2010 he reported:126 Mission accomplished. -Libdem MP, former Sky employee, with major Sky customer centres in his constituency and around, will contact Vince Cable to ask him to bear in mind the economic / investment point of view rather than getting influenced by political games, especially in times of austerity and very difficult economic environment for those areas. He will also emphasise the opportunity for Cable to show the maturity of the Libdems as coalition partners, working for the long-term, and will draw from the Coalition government experience lib-dems have had in Scotland. He agrees with the need for this to be looked at by Brussels rather than scrutinised again on plurality ground in the UK. -Alex Salmond is very keen to also put these issues across to Cable and have a call with you tomorrow or Wednesday. His team will also brief the Scottish press on the economic importance of News Corp for Scotland. (emphasis added) 3.74 The desire to deploy economic arguments of this sort, based on the economic importance of a business within a community, was wholly inappropriate. Such arguments were irrelevant to the decision which the Secretary of State had to make and could not lawfully be taken into account. Any decision influenced by them would have been impugned if the subject of judicial review. At best Mr Michel and News Corp completely failed to appreciate this. Mr Salmonds role is considered further below.127 In the days leading up to and immediately after the announcement of the decision to intervene, Mr Michel had further exchanges with a person or persons whom he described as an adviser or main adviser to Dr Cable.128 Mr Michel seemed optimistic that he might be able to meet with officials but his hopes were dashed on 8 November 2010 when he reported to James Murdoch:129 Just had a private call with Vinces main adviser. He said he believed there were huge risks for me to meet with him to talk about anything that has to do with the OfCom business, which he rules out completely.
pp54-55, lines 24-11, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcriptof-Morning-Hearing-30-May-2012.pdf 126 p20, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf 127 See Subsection 6 below: News Corporation and Alex Salmond 128 pp21, 23-25, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18. pdf 129 p25, ibid; see also email from Giles Wilkes to the same effect on the same day at p31, ibid
125
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Too much scrutiny. They also want to be able to say they took an independent view. Asked me to be in touch regularly in coming weeks, if only to provide him with any evidence / materials we would like Vince / him to read. 3.76 Mr Michels persistence yielded some useful information when he got an indication (rightly as it turned out) as to the imminence of the decision (but not its substance). On 2 November 2010 he reported that he had been told by Baroness Rawlings, the Governments DCMS spokeswoman in the House of Lords, that: she believed Cable was preparing to make a decision within a few days of our filing becoming public.130 On the morning of the intervention announcement itself, Mr Michel was in contact by text with Dr Cables adviser whom is reported to have texted that News Corp had: put a v strong case which will stand you in good stead on this.131 It is possible that the adviser was referring to the coming steps in the process, because the intervention decision had gone against News Corp. Mr Michel continued to lobby despite the set back which the intervention was for News Corp, hoping no doubt to increase the chances that the next decision in the process would be more favourable to his employer. On 9 November 2010 he met with Rupert Harrison, a Special Adviser to the Chancellor of the Exchequer, and the terms of his email report to James Murdoch suggests that he had recently also spoken to Vicky Pryce and David Laws. Whatever he was actually told, (as to which I expressly make no finding not least because it has not been the subject of evidence) what Mr Michel reported did not in fact reflect what actually happened:132 Vince made a political decision, probably without even reading the legal advice, as confirmed also to us by Vicky Price and David Laws yesterday I underlined the impact such regulatory process has for us financially; the signals it sends to major global potential investors. Rupert said the case would be made to BIS. 3.79 A text message from Mr Michel to Mr Harrison on the same day also raises the issue of the Treasury making a case to BIS. It records the former asking the latter if the Rt Hon George Osborne would send a letter to Dr Cable on the merger and its economic importance. Mr Michel went so far as to offer assistance with the content:133 Rupert, just spoke with James. It would be helpful if George were to send a latter to Vince on our Sky merger and its economic importance, separate from the Ofcom process. Do you think it is a possibility? I can of course help with the content. Best, fred [sic]. 3.80 Mr Osborne made clear that the invitation to write to Dr Cable was not acted upon:134 [Rupert Harrison] says and I believe him that there was a general discussion that was not focused on the BSkyB bid. There is a reference in the email to making the case to BIS. Hes checked and there is no contact that hes been able to see, between the
3.77
3.78
p22, ibid p24, ibid 132 p26, ibid 133 p13, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM171.pdf 134 p37, lines 12-24, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-11-June-2012.pdf
131
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Treasury between Mr Harrison and the business department. So that certainly was not if it was raised was not followed up. He makes the point to me that he wouldnt have known whether Dr Cable had read the legal advice or not, because he wouldnt have had a conversation with Dr Cable... 3.81 Mr Michel displayed particular tenacity in trying to secure a meeting. After being rebuffed in relation to a meeting about the bid on 8 November 2010, he entered into a protracted email exchange with Giles Wilkes, one of Dr Cables SpAds, seeking instead a more general meeting.135 Mr Wilkes agreed in principle to such a meeting but would not agree to it taking place whilst decisions about the bid were pending. When asked when would be good for him, he replied: Let us assume it is when a google of Vince Cable, News International and Sky doesnt turn anything up! Mr Michel persisted by seeking to elicit whether there had been meetings with any of the other interested parties: So that means no other possible interested parties in the transaction have met with you at all since June [Telegraph, FT, Associated, BT, BBC. etc.]? To which he received this reply:136 As it happened, I dont think Ive talked about this issue with any of them. Of course, in briefing at Conference, I had to wander into a room full of media people, and people from the media contacted me on other matters. And I know someone senior at Sky in a personal capacity, but we have studiously avoided discussing this since it became such a hot issue. Im sure were both equally interested in staying within the bounds of proper conduct forgive my caution. 3.82 Mr Michel concluded the exchange with a mollifying response before reporting to James Murdoch that: Vince is very disciplined about this.137 That was on 15 November 2010. Mr Michel let the matter rest but he did not give up. He resumed the attempt on 14 December 2010 after Ofcom had published an issues letter:138 Just spoke to Vinces main adviser. Neither date I put forward for a meeting with Vince (7th or 10th Jan) is likely to work. Vince is out of the country at that time, on current plans. I was told that he has yet to get his full views on the advisability of a meeting he is very keen to observe all the correct form and may therefore regard the possibility with an element of concern until extremely thoroughly briefed on all possible consequences. I think meeting, if it happens, will be in mid-January. Lets see. 3.83 Unlike Dr Cable, at this stage Mr Hunt had no objection to meeting News Corp, although he came to change his mind. When Mr Michel contacted him directly by text on 9 November 2010 seeking a meeting for James Murdoch, Mr Hunt agreed.139 But before the meeting took place Mr Hunt received advice from his officials. The advice, which had been approved by inhouse legal advisers, recommended against the meeting because DCMS had no formal role in the intervention decision:140
135 136
pp29-32, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf p29, ibid 137 p33, ibid 138 p41, ibid 139 pp45-49, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM81.pdf 140 p4, Jonathan Stephens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JS11.pdf
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There is no role in the process for the DCMS so we would recommend that you do not have any external discussions on the BSkyB media merger nor write to SoS BIS about it. If you want to contribute, you could write a letter stating facts backed up with evidence, provided it recognises the final decision is for the Business Secretary of State acting alone. However this carries risks to the robustness of the decision. 3.84 Mr Hunt cancelled the meeting, explaining to the Inquiry that although he did not think that contact would have been wrong, it risked creating a parallel process:141 This was probably the first time that I heard the phrase quasi-judicial or had some kind of exposure to what the implications of quasi-judicial meant, and we had a meeting in the diary initially and I decided to cancel that meeting not because I thought it was wrong to have contact with News Corporation, but because I thought they were probably wanting to have the meeting with me that Vince Cable had refused to have with them, and that therefore to have that meeting would be to create a parallel process where another government department is getting involved in the process in a way that might not be seen to be appropriate. 3.85 The position was reported to James Murdoch by Mr Michel on 15 November 2010 by email:142 Jeremy tried to call you. He has received very strong legal advice not to meet us today as the current process is treated as a judicial one (not a policy one) and any meeting could be referred to and jeopardize the entire process. Jeremy is very frustrated about it but the Permanent Secretary has now also been involved. 3.86 3.87 Use of the phrase very strong legal advice is an overstatement of the true position, which was a recommendation by officials which had been cleared by lawyers. Mr Hunt was indeed frustrated and for essentially economic reasons. He told the Inquiry:143 I may have been frustrated. I was worried about a bid in my sector that could potentially mean that thousands more jobs would be created, and the main protagonist was concerned about the process they were having to go through, so I may well have been worried. 3.88 Mr Michel continued in his email to propose that his principal should instead telephone Mr Hunt. It is:144 My advice would be not to meet him today as it would be counter-productive for everyone, but you could have a chat with him on his mobile which is completely fine, and I will liaise with his team privately as well. 3.89 It is surprising that Mr Michel, whose own belief appears to have been that Mr Hunt had received very strong legal advice not to meet James Murdoch, thought it appropriate to
pp18-19, lines 19-5, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf 142 p28, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf 143 p22, lines 20-24, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf 144 p23, lines 1-4, ibid; p28, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/ExhibitKRM-18.pdf
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encourage telephone contact. The displeasure of James Murdoch to this news is apparent in his reply to Mr Michel: You must be fucking joking. Fine. I will text him and find a time.145 3.90 The call went ahead. Mr Hunt recalled: I just heard Mr Murdoch out, and basically heard what he had to say about what was on his mind at that time.146 He agreed that he had probably been sympathetic but emphasised that he been careful to observe propriety:147 Well, I wouldnt have given him any reassurance about the media plurality decision that Vince Cable was taking because that was not my that was not anything I could get involved with, and I would have made that clear to him, so I probably gave him a sympathetic hearing, but I wouldnt have said that I can get involved in that decision because I had taken and accepted the advice that I couldnt. 3.91 3.92 James Murdochs evidence was: I believe he called me to apologise for cancelling the meeting but I dont have a specific recollection, but I think thats whats in the records.148 Jonathan Stephens, the Permanent Secretary at DCMS, subsequently explored the legal position further, obtaining in house legal advice which fully addressed the relationship between DCMS and BIS in relation to the bid:149 Whilst there is nothing legally which formally precludes the Secretary of State CMS from making representations to the Secretary of State BIS to inform the latters decision as to whether to refer the public interest considerations in this merger to the Competition Commission, it would be unwise to do so. This is because the task of assessing the impact of the merger on media plurality is expressly given to Ofcom, and because the Secretary of State CMS will almost certainly be able to see neither the report itself nor the underlying materials. Furthermore, and partly as a consequence, any representations made by the Secretary of State CMS are likely to raise the risk of challenge to a decision made by the Secretary of State BIS because it will appear to be purely political in nature (although, of course, it may well not be in fact, and thus be of limited assistance to him in making his assessment. 3.93 Whatever the detail of the telephone call on 15 November 2010 there is no evidence that Mr Hunt sought to communicate it to Dr Cable. Mr Hunt correctly accepted that he should not become directly involved in the quasi-judicial process.150 In evidence, he recognised with hindsight that it would have been better for the conversation to have been heard and minuted by his officials.151 I agree. Mr Michel soon pursued the private liaison with Mr Hunts team which he had proposed to take. In an email dated 23 November 2010 he relayed:152
3.94
p11, lines 17-18, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-24-April-2012.pdf 146 p25, lines 2-3, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf 147 p26, lines 13-20, ibid 148 p11, lines 12-14, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-24-April-2012.pdf 149 p12, para 16, Jonathan Stephens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JS11.pdf 150 p24, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning-Hearing31-May-2012.pdf 151 p24, ibid 152 p35, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf
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I will have a session with Hunts adviser next Wednesday to update on Ofcom process and next steps. Jeremy has also asked me to send him relevant documents privately. 3.95 Having established this private channel of communication with DCMS about the bid before the decision was unexpectedly transferred to Mr Hunt, Mr Michel later sought vigorously to exploit it once the decision had been transferred. Before the transfer, News Corp fruitlessly continued their lobbying of prominent Liberal Democrats, still believing that it might indirectly influence Dr Cable. On 19 November 2010 Mr Michel reported to James Murdoch:153 Was told today by Cables adviser to approach any meeting with Lord Oakeshott as a proxy for Vince Cable, an intro. discussion on the substance of Rubicon and possible way forward. Again, given his position of Chair of Cables business advisory council, he is the most influential person on any decision Vince will make (emphasis added) 3.97 James Murdoch had seen a prominent Liberal Democrat, Paul Marshall. Mr Marshall informed James Murdoch (forwarding an email via Mr Michel) that:154 I have relayed the substance of our conversation to Vinces office, but as you know, Vince is highly independent-minded so I can make no promises as to his greater willingness to hold a meeting... 3.98 On 2 December 2010, Mr Michel had conversations with an adviser to the Deputy Prime Minister and an adviser to the Prime Minister. In relation to the former he reported to James Murdoch:155 Honest discussion on the importance for us of getting Labour on board / comfortable with the transaction as it will influence Cable a lot he will insist on the need for Vince to meet with us once Ofcom report published need to support Nick when he makes announcement on copyright which goes against his election promise timing end January will be very tough for him with youth voters again. 3.99 Tim Colborne, a SpAd working to Mr Clegg confirmed that he was the adviser in question, but disputed the accuracy of Mr Michels email. Mr Colbornes note of the meeting recorded discussion on three topics: the Digital Economy Act; the BSkyB decision making process; and the broadcast landscape more generally. On the topic of BSkyB he said:156 My recollections of the discussions in relation to BSkyB are that Frederic Michel asked me about how the process was going, and I informed him that I had no involvement in it, and knew nothing about how it was proceeding. I have never had a role in relation to the BSkyB bid, which was exclusively a matter for the relevant Secretary of State (who at that time was the Secretary of State for Business, Innovation and Skills). I
p34, ibid p36, ibid 155 p38, ibid 156 p3, paras 9-10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-statement-of-TimColbourne.pdf
154 153
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further informed him that even if I had known, it would not be appropriate for me to speak to him about it. Frederic Michel went on to explain how the decision-making process was supposed to work... I do not recognise Frederic Michels own account of this meeting as set out in his email to James Murdoch. I have no recollection of an honest discussion on the importance for us of getting Labour on board, and I completely reject the suggestion that I offered to insist on the need for Vince to meet with us once [the] Ofcom report [was] published. I would not have offered to do so, and did not do so. When making handwritten notes of meetings, I always mark action points with an asterisk. There were no action points arising from this meeting. This is, perhaps, but one example of the need for real caution in relation to the accuracy of Mr Michels communications. 3.100 About his conversation with Mr Camerons adviser, Mr Michel recorded only one line relating to the bid: On Sky transaction: recognised need to look at it only from a plurality point of view.157 This was a correct statement of the approach which the decision maker was required to take but it is at odds with the belief expressed in Mr Michels earlier emails that wider political issues would influence the decision. 3.101 When Ofcom published an issues letter, Mr Michel set about gauging the reaction. On 14 December 2010, he reported to James Murdoch in terms which show that he had not given up on a meeting:158 Very good debrief with Hunt on the Issues letter. He is pretty amazed by its findings, methodology and clear bias. He very much shares our views on it. We are going to try to find a way for you to meet with him one/one before Xmas. 3.102 On this occasion Mrs Brooks too was passing on information, conveying to Mr Michel what she said was Mr Osbornes response:159 Same from GO total bafflement at response. 3.103 Mr Osborne did not remember mention of the bid in conversation, and had not read Ofcoms letter, but he did not doubt Mrs Brooks account that it had taken place and he remembered the occasion, a dinner in a restaurant. Neither did he take issue with Mrs Brooks evidence that he looked perplexed:160 I have read the Ofcom issues letter in preparation for appearing before you today and I think that is the first time Ive ever read that letter. Certainly it jogs no memory and Ive done a search of my private office of whether the Ofcom issues letter was brought to my attention, and theres no we can find no evidence that it was. So Im perfectly prepared to accept that there was a conversation; I just have no memory of it, and perhaps the reason I was perplexed or baffled was because I hadnt actually read the Ofcom issues letter.
p38, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf p40, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf 159 p40, ibid 160 pp28-29, lines 11-21, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Afternoon-Hearing-11-June-2012.pdf
158 157
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3.104 Mr Osborne was clear that the process was quasi-judicial and he did not seek to influence Dr Cables decision. Indeed, he made plain to the Inquiry the political reasons why he did not have a strong view as to the outcome of the bid:161 I didnt have a strong view about its merits because as far as I could see, it was just going to cause us trouble one way or the other. Indeed, so it has proved to be, and I just thought it was either going to offend a group of newspapers and indeed broadcasters who we wanted to have good relations with if it was rejected sorry, if it was accepted, and if it was rejected, it was going to offend another bunch of people who we want to have good relations with. So I regarded the whole thing as a political inconvenience and something we just had to deal with and the best way to deal with it was to stick by the process. 3.105 Mr Michel reported having seen Mr Foster from whom he said had had: Some important feedback.162 Amongst the many emails reporting Mr Michels conversations with Liberal Democrats, recited above, that of 19 December 2010, relaying a conversation with Mr Cleggs Chief of Staff, Jonny Oates, stands out because the view recorded is unequivocally focused on the correct test and the correct procedure:163 Just had a private chat with Cleggs chief of staff regarding the ongoing process. He was very surprised when I pointed out to him that Cable will be tempted to take a decision with a lot of political influence. For him, the referral is not a matter for lib-dems, it is a matter for the Secretary of State in accordance with his statutory obligations. Said he was unclear therefore why News Corp is seeking out the views of people who have no locus in the decision making process and thinking that their views indicate that the decision will be political. For him, senior lib-dems who are going around giving us advice / recommendations are not representative of Vinces mindset and way of making decisions. This is similar to what Vinces adviser told me on Friday night: until the end, Vince will be keen to make up his own mind and not be influenced by anyone. I told him it was hard to believe given all the feedback we are getting. Contrary to my assertion, he said the Secretary of State will take the decision on its merits in accordance with his statutory obligations. If we have concerns, we should express them directly with BIS or Ofcom.
3.106 The evidence, discussed earlier in this Section, shows that Dr Cable did focus on the statutory test, took specialist legal advice and made up his own mind. However, insofar as Mr Oates intention was to reassure News Corp that the bid was being considered with scrupulous fairness by Dr Cable, what happened next entirely changed the perspective.
161 162
pp30-31, ibid p40, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf 163 p42, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf
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4. 21 December 2010: Dr Cables comments and the transfer of function

The comments and their context
4.1 In the course of his work as a constituency MP, on Friday 3 December 2010, Dr Cable conducted a constituency surgery. Two undercover journalists pretended on that occasion to be constituents and local mothers concerned about the impact of proposed Child Benefit changes on their families. More broadly, they sought, and then actively questioned Dr Cable about, his views on the coalition Government.164 He spoke freely about the bid and the Murdoch press saying (amongst other things):165 You may wonder what is happening with the Murdoch press ...I have declared war on Mr Murdoch and I think were going to win and I didnt politicise it, because it is a legal question, but he [Mr Murdoch] is trying to take over BSkyB, you probably know that ...He has minority shares ...And he wants a majority. And a majority-control would give him a massive stake. I have blocked it, using the powers that I have got. And they are legal powers that I have got. I cant politicise it, but for the people who know what is happening, this is a big thing. His whole empire is now under attack. So there are things like that, that being in Government ...All we can do in opposition is protest. 4.2 Dr Cable did not deny making the comments but wished to explain two factors which he said had influenced what he had said. First, he described what had happened in his constituency office, and how it affected the words he chose, in this way:166 First, on that evening there were high levels of tension in the office due to disturbances outside caused by a group of protestors who had tried to force entry, and were verbally threatening staff and residents. They were later confronted by the police. I had invited in a small group of protestors and had just finished a highly confrontational discussion with them. My own lack of concentration in the subsequent interview had a lot to do with this abnormal and tense environment. I volunteered strong views on the BSkyB takeover since that, together with university finance, was the issue uppermost in my mind. I should also draw attention to other comments that were made, recorded and reported by the journalists which caused me some embarrassment but do illustrate this factor further. I talked about a big battle going on over immigration caps, and big arguments on banks, tax thresholds, and civil liberties. I used the word war several times. These comments show how this high level of tension had spilled over into the language I used throughout the conversation, and not just when discussing one particular topic.
pp16-17, para 63, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-VinceCable-MP.pdf 165 p16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Vince-Cable-MP. pdf; see also p1, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH13MOD300008089-MOD300008106-docs551-565.pdf, which includes the comment, I am picking my fights, some of which you may have seen, some of which you may [sic] havent seen. See also http://www.telegraph.co.uk/news/ politics/liberaldemocrats/8217253/Vince-Cable-I-have-declared-war-on-Rupert-Murdoch.html 166 p17, para 64a, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Vince-CableMP.pdf
164
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4.3
He expanded upon this evidence orally:167 I think it needs in order to explain the rather emotional way in which I dealt with this and the very strong language, I think it is important to understand there was, I think, a near riot taking place outside my constituency office, people were trying to force entry, we had the police present trying to calm the situation. In order to prevent the disorder getting out of control, I invited in some of the protesters into my office. We had a very long discussion, very angry people upbraiding me about Afghanistan and Palestine and student fees and capitalism and other things, and somebody was waving a camcorder in my face, a few inches from my face, so I was struggling to keep my temper in this situation. So at the end of that interview, when Id finally seen them out, I was in an extremely tense and emotional frame of mind, and the two women, who I thought were constituents coming to see me about a constituency problem, were the next people that I saw. As Ive tried to explain here Im normally very calm in dealing with different situations I did offload onto them a lot of pent-up feelings, not just about the BSkyB case that I was dealing with, but about my colleagues in government and a variety of other issues in language that I wouldnt normally use, in what I thought was a private, confidential conversation.
4.4
Dr Cable next described a very different kind of influence, namely a sense that he was being intimidated by the threat of retribution through the newspapers owned by NI. He put it in these terms in his witness statement:168 Second, the confrontational way in which my personal views of News Corporation, were expressed was due to reports coming back to me of how News Corporation representatives had been approaching several of my Liberal Democrat colleagues in a way I judged to be inappropriate. The reports suggested that News Corporation representatives were either trying to influence my views or seeking material which might be used to challenge any adverse ruling I might make, following the completion of the Ofcom report. These colleagues expressed some alarm about whether this whole affair was going to lead to retribution against the Liberal Democrats through News International newspapers. As it happened evidence of these reports was later borne out in an article by Toby Helm in the Observer on 23 July 2011 (which I have included in exhibit VC1). This added a sense of being under siege from a well organised operation. Coming from a party that had hitherto been at best ignored by News International, this was a new and somewhat unsettling experience. I could not help contrast this behaviour with that of other parties to the case who were content to make written submissions or other cases (like Northern & Shell).
I
4.5
My references to a War on Murdoch were making the point, no doubt rather hyperbolically, that I had no intention of being intimidated. Clearly, I should not have volunteered my unprompted opinion, even in a private, confidential conversation in a constituency surgery. I subsequently apologised. He developed this evidence orally, explaining that there were two concerns about the activities of Mr Michel and others. First, he felt that the bid was being politicised. Second, that he and his party were being threatened with retribution:169
pp63-64, lines 8-7, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-30-May-2012.pdf 168 p17, paras 64b-65, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-VinceCable-MP.pdf 169 pp64-65, lines 18-23, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcriptof-Morning-Hearing-30-May-2012.pdf
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Well, perhaps preface my answer by saying I was describing the the interview in my office took place a month after the intervention notice, and I was describing a series of reports Id had from colleagues, often second or third-hand, but nonetheless plausible reports, of significant numbers of my Parliamentary colleagues in the Lords and in the Commons having had interviews with Mr Michel and possibly others, and I was concerned, indeed I was more than concerned, I was angry, which is what came out in my response, at the way this was being dealt with. I was concerned on two levels. First, there was a systematic attempt to politicise the process, to imply that somehow or other the whole process was governed by the Liberal Democrats, which it wasnt, and I think in his email exchange, Jonny Oates it is there, I think 1681 does describe his own interpretation of what was going on as a systematic attempt by News International representatives to politicise the process. And secondly, and actually more seriously, I had heard directly and indirectly from colleagues that there had been veiled threats that if I made the wrong decision from their point of view of the company, my party would be I think somebody used the phrase done over in the News International press, and I took those things seriously, I was very concerned. I had myself tried to deal with the process entirely properly and impartially, and I discovered that this was happening in the background. I frankly stored up my anger at what was taking place, but in that very special and tense situation, I rather offloaded my feelings. 4.6 After Dr Cable had given evidence, a fellow Liberal Democrat MP, Norman Lamb, came forward to the Inquiry further to explain the sense of threat. In particular, he recounted two meetings with Mr Michel which he said took place in Portcullis House, Westminster, on 10 June 2010 and 27 October 2010. He described a range of subjects being recounted on both occasions, including the proposed takeover of BSkyB. His recollection of the first meeting was fairly vague. That meeting took place five days before the bid was announced. In his witness statement, Mr Lamb stated that the proposed takeover had been discussed.170 In his oral evidence he clarified that, on that occasion, what was mentioned was a potential, not actual, bid.171 Mr Michel was certain that we did not discuss the BSkyB bid at this meeting because it had not been announced and he would not have mentioned it if he had been aware of an imminent announcement.172 Much more significantly, of the second meeting he stated:173 During the second of these meetings on 27 October, 2010 Mr Michel again raised with me the position with regard to the proposed takeover of BSkyB. He argued strongly, on the basis of the legal position, that there were no grounds for a referral. During the discussion he raised the issue of News International newspaper coverage given to the Liberal Democrats. He said he felt that the coverage since the election had been very fair. He specifically mentioned The Sun and indicated that it had given the Liberal Democrats reasonable coverage since the general election. He then implied that if the decision surrounding the bid did not fall in their favour, it would be a pity if things were to change and they were no longer able to report in such
p1, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Norman-LambMP.pdf 171 pp2-4, Norman Lamb, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-AfternoonHearing-26-June-2012.pdf 172 pp1-2, para1.1.4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/08/Third-ws-of-Frederic-Michel.pdf 173 pp1-2, paras 3-8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-NormanLamb-MP.pdf
170
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a positive way. I cannot remember the exact phraseology used but the message was very clear. I chose not to respond. I took the view that this was part of the lobbying operation in the run up to a decision on the bid. I was very concerned by what I heard and reported it to Nick Clegg and also to Vince Cable. We were all very clear that nothing of this sort should influence in any way how the bid was considered (emphasis added). 4.8 Mr Lambs account of the meeting on 27 October 2010 was corroborated by a manuscript note which he made some time after the event: I cant confirm that it was definitely the same day, but it would have been within days of the meeting taking place; he produced this for the first time on the day on which he gave his oral evidence. It was one of a number of notes which he had made during the early days of the coalition Government ...of interesting things that had happened. and it was concisely expressed:174 Wed 27/10 0900 meeting Fred Michel News International. An extraordinary encounter. FM is very charming. He tells me News Int. papers will land on VCs desk in next 2 weeks. They are certain there are no grounds for referral. They realise the political pressures. He wants things to run smoothly. They have been supportive of Coalition. But if it goes the wrong way he is worried about the implications. It was brazen VC refers case to Ofcom they turn nasty. Then he talked about AV how Sun might help the debate use of good graphics to get across case. James M has met Nick worth working on him to he could be receptive to case. Times will give it fair hearing. So refer case and implication was clear. News Int turn against Coalition and AV. 4.9 A further manuscript note evidenced Mr Lamb reporting the conversation to Mr Clegg on 2 November 2010. Its representation of Mr Cleggs reaction casts an interesting light on political perceptions of the power and conditionality of press support:175 ...He is horrified by what I tell him of Fred Michels meeting last week re News International. - we will lose the only papers who have been positive. 4.10 Mr Michel was hoping that he might through Mr Lamb secure a meeting with Dr Cable. He described the meeting as very friendly and open176 and recalled explaining to Mr Lamb the growing frustration at News Corp and the sense of unfairness at not being able to make its case at a meeting. He explained at some length in his third witness statement what was said about media coverage, strongly denying that any threat was made, and positing that there must have been a misunderstanding: ...It seems to me that Mr Lamb has, in his own mind, linked various topics of conversation in a way that was certainly never intended by me.....177
pp5-7, Norman Lamb, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-AfternoonHearing-26-June-2012.pdf; p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-to-WitnessStatement-of-Norman-Lamb-MP-Part-1.pdf; p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/ Exhibit-to-Witness-Statement-of-Norman-Lamb-MP-Part-2.pdf 175 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Exhibit-2-to-Witness-Statement-of-NormanLamb-MP.pdf 176 p2, para 1.2.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/08/Third-ws-of-Frederic-Michel.pdf 177 p4, para 1.2.15, ibid
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4.11
The Deputy Prime Minister recalled that Mr Lamb had spoken to him, stating:178 At one point, I was it was brought to my attention by Norman Lamb, a friend and colleague of mine, a Liberal Democrat MP, that he had been the way he described it at least told that it would be good for the Liberal Democrats to be open to the bid, otherwise we would expect unfavourable treatment from the Murdoch press, and Norman was quite agitated about that. I have to say, since we hadnt received particularly favourable treatment in the first place, I didnt think it was a hugely credible threat, and anyway it was part of so many rumours and counter-rumours and claims and counterclaims that I just said to him, Look, we just must not be knocked off-course from allowing this process to proceed in an independent, objective and quasi-judicial manner. And throughout all of this, I was very conscious that if I had any role at all, it was just to make sure that Vince Cable, as the relevant Secretary of State, was given the kind of time and the space to discharge his quasi-judicial functions and was insulated from political influence one way or the other.
4.12 4.13
Mr Clegg did not recollect Dr Cable speaking to him about veiled threats or bullying from News Corp or NI.179 I am in no doubt that Mr Lamb took what Mr Michel said on 27 October 2010 about media coverage to be an implied threat and, given the impact that it had on him, whatever Mr Michel said could legitimately have been understood as such a threat. That explains why he reported it as such to both Mr Clegg and Dr Cable. However, I am prepared to accept Mr Michels evidence that, however it might have appeared and however clumsily he might have spoken, he was not, in fact, intending to threaten Mr Lamb or the Liberal Democrats. His modus operandi, which is very well evidenced in the voluminous emails and texts messages which he sent, as well as the evidence of others who dealt with him, tends to support his denial. Mr Michel went about his work in a different way. He mounted charm offensives, flattered and sought to persuade others of the merits of his employers bid. In his internal emails, there is no mention or hint that he was looking for other ways to pressurise or persuade, let alone deploy a threat. Further, his later strategy, so far as the bid is concerned, is recorded in his internal emails to colleagues, already discussed, and did not involve threatening the Liberal Democrats. Rather, he wanted News Corp to curry favour with Dr Cable by supporting him and the Liberal Democrats generally. His surprise at the interpretation put upon his words by Mr Lamb was genuine. I am reinforced in my conclusion by Mr Cleggs reaction that it was not a hugely credible threat and the absence of evidence that the Liberal Democrats were in fact done over by News Internationals titles as a result of Dr Cables decision to intervene. It was not suggested that they were. That the bid was discussed in politicised terms between Mr Michel and Liberal Democrat MPs is plain and is evidenced not only by Dr Cables recollection but also by Mr Michels own reports of his lobbying efforts.180 Whether politicised discussion was in fact the result of a deliberate effort to politicise the decision by Mr Michel and News Corp is not at all clear. News Corp believed, on credible grounds, that it had a strong position on both competition
4.14
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pp51-52, lines 5-1, Nick Clegg, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofMorning-Hearing-13-June-2012.pdf 179 p76, lines 2-4, Nick Clegg, ibid 180 see Media Lobbying Behind the Scenes above
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and plurality grounds. James Murdoch explained that the timing of the bid was deliberately chosen, inter alia, to avoid the issue becoming a political football before the election.181 4.16 It is impossible to say, without further and disproportionate investigation, whether it was Liberal Democrat politicians, Mr Michel, or a mixture which led to the politicised conversations which took place. Still less is it possible to say whether that politicisation was a deliberate strategy or simply a failure to focus on the quasi-judicial nature of the decision and the strict legal test which had to be applied. What can be said with confidence though is that Dr Cable believed that pressure was being exerted by those whom he described as News International representatives (although actually representatives from News Corp). The significance of the context in which the comments were made is that they consequently fall to be understood as Dr Cables unguarded and emotional reaction to his role in the bid. In his own words he offloaded his feelings. That Dr Cables words were of this nature is further made clear because he was not technically correct when he said that he had blocked the bid. Formally, he had only issued an intervention notice. Context may explain Dr Cables comments, but, given his responsibilities, it does not excuse them. He did not pretend otherwise, either at the time or to the Inquiry, recognising that his words had given rise to an appearance of bias. He told the Inquiry:182 No, I do understand in my case that the remarks I made did create a perception of bias and therefore made it difficult for me to continue. I fully understand that. It doesnt mean to say I would have been biased; I wouldnt have been. But nonetheless there was a perception issue and that had to be taken into account by the Prime Minister. 4.19 Dr Cable also rightly recognised that the transfer of responsibility for the bid was the inevitable result of his own words:183 Q. ...Do you have any observations to make on the, as it were, transfer of responsibilities to another department or not? A. Well, I was angry with myself at what had happened, but given what you just said about perception of bias, I understood that there was no alternative in this case. 4.20 His remarks, once published, made the perception or appearance of bias inevitable, as in due course was therefore the removal of his responsibilities. It is, however, important to underline that if what he said had not been recorded by a journalist but had, in fact, been heard by a constituent (as he believed was the case), it is certainly possible that what he said could have returned to impact on the bid after he had decided it: his constituent might then have gone to the press. This only serves to underline the very difficult position faced by those charged with making judicial or quasi-judicial decisions.
4.17
4.18
pp70-71, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of-MorningHearing-24-April-2012.pdf 182 p85, lines 1-7, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-30-May-2012.pdf 183 p85, lines 16-21, Robert Jay QC, Dr Vince Cable, ibid
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The story breaks

4.21 The Daily Telegraph published a story about their reporters conversation with Dr Cable online on 20 December 2010184 and there was further coverage both online and on paper on 21 December 2010. Surprisingly, the initial coverage on 20 December 2010 and the morning of 21 December 2010 did not refer to Dr Cables comments about the bid. There was suspicion that the Daily Telegraph did not want to cause trouble for a Secretary of State who had made a decision to intervene which was, of course, in the interests of the Telegraph Media Group (TMG). There can be little doubt that the TMG was not supportive of the bid and that its opposition was based upon commercial grounds. Aidan Barclay, Chairman of TMG, subsequently wrote to James Murdoch in these terms:185 I am sure you are aware that the Telegraph was not supportive of the News Corp proposed takeover of BSkyB. We took this position as a result of what we believed were and are genuine commercial concerns... (emphasis added) 4.22 However, the Daily Telegraph denied that it was trying to hide the information and maintained that it deliberately held back parts of the transcript of the conversation in order that it could publish a further instalment and thereby get the maximum return on the story. Whatever the motive, the information did not stay out of the public domain for long. A whistleblower passed a full copy of the transcript to the BBCs Robert Peston who, at 2:30 pm, published the passages which had been excised by the Daily Telegraph on his blog; subsequently, the Daily Telegraph did publish them.186 As for the motive in withholding what would have been the most explosive part of the story, on the basis that this sub-issue was not fully explored and is not essential to the narrative, I make no finding, save only to observe that if that had been the plan, the whistleblower (who obviously had access to the full details of the story) apparently did not know about it . Before continuing with the events of 21 December 2010, it is appropriate to record that the use of subterfuge by the Daily Telegraph directed to Dr Cable was not an isolated incident. It was one of a number of instances in which undercover Daily Telegraph reporters sought to elicit unguarded comments from Liberal Democrat MPs. The results were the subject of articles on 21, 22 and 23 December 2010 and provoked a complaint to the PCC from Tim Farron MP, President of the Liberal Democrats. The complaint was upheld, albeit with an important qualification concerning Dr Cable:187 For the Commission to have sanctioned this method, it would have had to be convinced that a high level of public interest could reasonably have been postulated in advance. It did not believe that the Telegraph although acting no doubt with legitimate intent had sufficient grounds, on a prima facie basis, to justify their decision to send the reporters in. The complaint was therefore upheld. The Commission did feel that the newspaper had uncovered material in the public interest regarding the remarks made by Vince Cable about the News Corporation bid
Holly Watt, Robert Winnett and Heidi Blake, http://www.telegraph.co.uk/news/politics/liberaldemocrats/8215462/ Vince-Cable-I-could-bring-down-the-Government-if-Im-pushed.html 185 p1, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-JRJM-3.pdf; Mr Barclay also confirmed the commercial nature of the concern in evidence, p66, lines 4-19, Aidan Barclay, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of-Afternoon-Hearing-23-April-2012.pdf 186 Robert Peston, What Vince Cable said about Rupert Murdoch and BSkyB, 21 December 2010, http://www.bbc. co.uk/blogs/thereporters/robertpeston/2010/12/what_vince_cable_said_about_ru.html 187 p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-4-to-Witness-Statement-of-VinceCable-MP.pdf
184
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for BSkyB, which had led to him being divested of his role in that decision. However, there had been no suggestion that the intention of the newspaper had been to explore how he had been handling the bid (it made clear in its coverage that Mr Cable [sic] had spoken despite not being asked about the issue), and the newspaper itself had chosen not to make it a focus of its first days coverage. The test for the Commission was whether there were grounds in the first place to justify the subterfuge: the Cable disclosures about Sky were not relevant to that.
The response to the story

4.24 21 December 2010 had already been an important day for consideration of the bid. At midday, the European Commission unconditionally approved the bid from the European Union competition perspective.188 That news prompted communication between James Murdoch and Mr Hunt. The former tried to call the latter who texted at 12:46hrs:189 Sorry to miss ur call. Am on my mobile now. Jeremy. 4.25 James Murdoch replied at 12:52hrs:190 Have to run into next thing. Are you free anything after 2.15? I can shuffle after this. 4.26 A further exchange of texts concluding at 12:56hrs agreed 16:00hrs as a convenient time to speak.191 At 12:57hrs, Mr Hunt texted again, by this time he had self evidently heard about the European Commissions decision:192 Great and congrats on Brussels, just Ofcom to go! 4.27 The terms of his message were not impartial and are consistent with his broad sympathy for the bid which he had never hidden. It is a matter of importance, however, that the text message was sent before Mr Pestons story had been posted and whilst responsibility for the bid still rested with Dr Cable. News of Mr Pestons story travelled fast. At 15:50hrs, Sue Beeby, the second of Mr Hunts two SpAds, emailed details of Dr Cables comments to Mr Hunt.193 Ten minutes later, at 16:00hrs, Mr Hunt and James Murdoch spoke by telephone, as previously arranged. James Murdoch was described as being totally horrified by the Secretary of States comments.194 Mr Hunt sought to consult a senior Cabinet colleague, Mr Osborne, texting at 16:08hrs: Cld we chat about Murdoch Sky bid? am seriously worried we are going to screw this up. Jeremy.195 He followed that with a second text also timed at 16:08hrs which read: Just been
4.28
4.29
I
188
pp18-82, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH1MOD300004241-MOD300004682-docs-1-52.pdf 189 p9, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH16-MOD300008147MOD300008166-docs581-596.pdf 190 ibid 191 ibid 192 ibid 193 p1, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH13-MOD300008089MOD300008106-docs551-565.pdf 194 pp37-38, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-31-May-2012.pdf 195 p12, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH16-MOD300008147MOD300008166-docs581-596.pdf
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called by James M. His lawyers are meeting now & saying it calls into question legitimacy of whole process from beginning, Acute bias etc.196 4.30 He also emailed Andy Coulson at 16:10hrs asking: Could we chat about this? Am seriously worried Vince will do real damage to coalition with his comments...197 In the result, Mr Hunt did not think that he did speak to Mr Coulson.198 Nor did he think that he had any conversation with No 10 at that stage.199 By the time that Mr Osborne received Mr Hunts two text messages he was already in a 16:00hrs meeting with Mr Cameron and others discussing what was to be done about Dr Cables comments.200 He probably did not see the text messages until after the meeting.201 The meeting itself had originally been a routine meeting to review the days events and to look ahead but, in the result, it was used to react to news of Dr Cables comments:202 ...Every day, at 4 oclock, there is a Prime Ministerial meeting to review whats going on that day and look ahead, and I attend that meeting when Im in London and my diary allows me to do so. So I was going over to Downing Street anyway. The meeting had, in effect, been cancelled and the meeting had become a discussion of what to do about Dr Cables remarks, and I was part of that discussion, with the Prime Minister, his most senior civil servant and his political advisers... 4.32 Mr Cameron highlighted the gravity and urgency of the situation before explaining the thinking which pointed towards transferring responsibility for the bid to the Secretary of State for Culture, Media and Sport:203 ...Such a situation had the potential to damage the Governments credibility and it was important to act quickly to address the issue. I had rapid discussions with my senior advisers, including the Permanent Secretary, as to the best way forward, as it was clear that Vince Cable could no longer continue in the decision-making role given the nature of the his comments. I consider a range of options for how to handle this matter. I did not want to dismiss Vince Cable from his position as, while he had behaved inappropriately by speaking as he had on this particular issue, he dealt with many other issues effectively as Secretary of State and was providing a valuable contribution to the Coalition Government. Jeremy Heywood, the Permanent Secretary at Number 10, suggested the option of transferring responsibility for media competition issues, including the option of transferring responsibility for media regulation. It seemed to me that this was the most logical, straightforward and effective option and it made sense for the policy issues of media competition and media regulation to be the responsibility of one department.
ibid p1, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH14-MOD300008107MOD300008132-docs-566-572.pdf 198 p37, lines 8-10, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf 199 pp39-40, Jeremy Hunt, ibid 200 pp43-44, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-11-June-2012.pdf 201 p47, lines 10-17, George Osborne, ibid 202 pp43-44, lines 22-16, George Osborne, ibid 203 p54, 168-169, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/WitnessStatement-of-David-Cameron-MP.pdf
197 196
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4.33
Mr Osborne graphically described the political pressures that had been unleashed by the publication of Dr Cables unedited remarks in Mr Pestons blog only 90 minutes earlier:204 I think that on the day, I remember the pressure was enormous to do something about the political crisis that had been unleashed on the government out of the blue at 3 oclock in the afternoon. Obviously, we had no idea that Dr Cable had said these things. They werent in the Telegraphs report of the story that morning, which had itself caused some problems, and we had to deal with I mean, the pressure in government, in modern government, is to is you have to make sure you have answers to some the [sic] tough questions that the media are throwing at you, even if it comes in the middle of the afternoon, just as youre doing other things.
4.34
Mr Osborne recalled that the original suggestion to transfer responsibility for the bid to Mr Hunt came not from a politician but from (now Sir) Jeremy Heywood, then the Downing Street Permanent Secretary. He too emphasised a desire not to remove Dr Cable from his post altogether, expressing on his part concern about the impact that such a step might have had on the coalition:205 The principal concern in the meeting and certainly my principal concern, what I was seeking to say in the meeting was that this was not something which should lead to the resignation of Dr Cable. I thought what Dr Cable had said was wrong but I didnt think it merited his resignation, and frankly I also had concerns about the impact of such a resignation on the Coalition and the unity of the government. So I was looking for a solution, as indeed were other people in the room, that did not involve someone else becoming the Secretary of State for Business and Dr Cable leaving the government or indeed Dr Cable moving to another portfolio, because that would trigger a wider Cabinet reshuffle which was not something we felt, just before Christmas, with, as I say, the Coalition in its first year, something we wanted to see, and indeed we thought Dr Cable was doing a good job as business secretary, other than on this particular issue of what hed said about the Murdochs. So we were looking for solutions that did not involve Dr Cable resigning or moving from business secretary, and Jeremy Heywood suggested the solution of moving the responsibility for media plurality to the department for culture, media and sport. So it was, in a way, a structural solution within Whitehall to the problem, and my recollection is once Mr Heywood had proposed that, we thought that was a good solution and would help keep Dr Cable in government whilst removing from him the responsibility for media plurality, and it, I think, also struck us all as rather commonsensical that it would move to the department that was, after all, called the department for media and already had responsibilities for media regulation.
I
4.35
By around 16:30hrs telephone advice was being sought from the Treasury Solicitor, (now Sir) Paul Jenkins about the issue. Sir Paul, who was at home on leave, spoke to a number of officials, including the Cabinet Secretary, Lord ODonnell, during the course of the next hour. He confirmed, from a legal perspective, the prevailing view that Dr Cable could not properly retain responsibility for the bid, and went further by advising against delegating the decision to a junior minister at BIS:206
p50, lines 13-24, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-11-June-2012.pdf 205 pp44-46, George Osborne, ibid 206 pp2-3, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Paul-Jenkinstaken-as-read3.pdf
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...I confirmed to Sir Gus that it was my opinion that Dr Cable could no longer properly discharge his functions under the Enterprise Act 2000 in relation to the BSkyB bid because, whilst seized of the matter, he had made statements of a kind that tainted, irrevocably, his ability to discharge his functions in a quasi-judicial manner... ...I also advised Sir Gus that, in the particular circumstances of the case, the option of delegating the decision-making responsibility to a junior Minister in the Department for Business, Innovation and Skills would give rise to significant legal risks and this option was not pursued. 4.36 Sir Paul regarded the emerging alternative candidate for the decision, Mr Hunt, as the obvious choice:207 In these circumstances the obvious alternative was for the functions to be transferred to another Secretary of State; and the obvious Secretary of State was the Secretary of State for Culture, Media and Sport. I was aware from the discussions that the Prime Minister was considering this as the natural option. 4.37 There was an awareness of the need to check whether responsibility for the bid could properly be transferred to Mr Hunt. Accordingly, Sir Jeremy contacted the Permanent Secretary at DCMS, Jonathan Stephens. Like Sir Paul, Mr Stephens was also at home, starting his Christmas leave. Mr Stephens recalled being asked whether Mr Hunt had publicly made any comment which might appear to have pre-judged the issue. He was only aware of what his Secretary of State had said on 15 June 2010, the day on which the bid was announced. He caused checks to be made by his officials and with Mr Hunts SpAds before passing on Mr Hunts public comments to Sir Jeremy, whom he knew to be consulting lawyers and the Cabinet Secretary.208 Witnesses were understandably unable to recollect the precise terms in which Mr Hunts relevant public statements were communicated to the Treasury Solicitor, who was asked to advise. For his part, Sir Paul put it this way:209 I was provided with the gist of the comments made by Jeremy Hunt by Sir Gus over the telephone. I have now seen the comments attributed to Jeremy Hunt collected at paragraph 172 of the Prime Ministers statement. I believe that the gist as relayed to me fairly summarised the content of those comments. 4.39 The comments to which Sir Paul was referring to in the quotation above, as set out in Mr Camerons witness statement, are these:210 a. An interview in the Financial Times, published on 16 June 2010, where he was quoted as saying: It does seem to me that News Corp do control Sky already, so it isnt clear to me that in terms of media plurality there is a substantive change, but I dont want to second guess what regulators might decide. b. An interview in Broadcast magazine where he was also quoted as saying:
p3, para 7, ibid p4, para 19, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-statement-of-JonathanStephens3.pdf 209 p4, para 9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Paul-Jenkinstaken-as-read3.pdf 210 pp55-56, para 172, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf
208 207
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Rather than worrying about Rupert Murdoch owning another TV channel, what we should recognise is that he has probably done more to create variety and choice in British TV than any other single person. c. The description of Jeremy Hunt in the same Broadcast magazine article, which was displayed on his constituency website, as: like all good Conservatives Hunt is a cheerleader for Rupert Murdochs contribution to the health of British television. 4.40 Sir Paul did not consider that these matters precluded Mr Hunt from taking over Dr Cables decision making function in relation to the bid and advised the Cabinet Secretary accordingly. His reasons were recorded in a note produced by Lord ODonnell for Mr Cameron the next day. In his evidence Sir Paul explained:211 ...I took the view that senior politicians in the office of Secretary of State should be credited with the ability to put aside such personal views, expressed before their holding of a decision-making power, so that they can approach the decision-making process, on advice and with a fresh mind. I did not think that Jeremy Hunts comments were of a nature that indicated that they could not be put aside; nor that a reasonable and informed person would conclude that they could not be put aside. I acknowledge that there will be occasions when a politician does make such a comment but I do not think this was one. 4.41 4.42 Sir Pauls advice was accepted and cemented the provisional decision to transfer Dr Cables functions in relation to the bid from BIS to DCMS and Mr Hunt. Meanwhile, at 16:58hrs, after the meeting in Downing Street, but whilst legal advice was still being taken, Mr Osborne replied to Mr Hunts earlier text messages by referring to the then still provisional decision to transfer responsibility for the bid to Mr Hunt: I hope you like the solution!212 By the time he received Mr Osbornes text, Mr Hunt knew something of what was happening and, in particular, that Downing Street was checking whether public comments sympathetic to the bid were an obstacle to his assuming responsibility for the bid.213 Not only were these comments being considered by the Cabinet Secretary and Treasury Solicitor, they were also scrutinised by the Legal Director at DCMS, Patrick Kilgarriff. Mr Kilgarriffs views on the comments about the bid made by the Secretary of State on 15 June 2010 were recorded in an internal email which Mr Hunt forwarded to Ed Llewellyn, the Downing Street Chief of Staff at 17:30hrs. It is clear from the terms in which Mr Kilgarriff couched his email that whilst he did not think Mr Hunts comments precluded him from making a decision about the bid, he did foresee that they might prove to be controversial and the subject of challenge. Consequently, he was
4.43
4.44
p5, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Paul-Jenkinstaken-as-read3.pdf 212 p48, line 16, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-11-June-2012.pdf; p13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/ExhibitJH16-MOD300008147-MOD300008166-docs581-596.pdf 213 pp39-40, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-31-May-2012.pdf
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alive to the fact that a carefully reasoned decision, based on the all the relevant evidence was going to be needed. He rightly foresaw the need for particular care. He put it this way:214 When did JH say it? I assume it was shortly after News Int announced its intention to buy out the other shareholders in Sky. Therefore at a time when JH was not responsible for policy in this area. If so, it is not helpful and tends towards an element of pre-judging the issue. That said, the view is far from definitive as is demonstrated by the wish not to second guess decision making by regulator and it isnt clear to me so unhelpful and enough to draw comment and perhaps challenge but probably not fatal when a well reasoned decision is made with conclusions based on all the relevant evidence (emphasis added). 4.45 It was common ground that the only comments sought and then put to the Treasury Solicitor for consideration and advice were public comments made by Mr Hunt. Sir Paul was not aware, when he advised, that in fact Mr Hunt had sent a memorandum detailing his views about the bid to the Prime Ministers office on 19 November 2010 and another earlier memo had touched upon the subject on 18 June 2010. Nor was Sir Paul aware that Mr Hunt had spoken to James Murdoch on 21 December 2010 and had, only hours before responsibility for the bid had been transferred to him, congratulated James Murdoch by text on the bids clearance by the European competition authorities. Both of the memoranda were updates of a sort which had been encouraged by Mr Cameron from all of his Front Bench since his days in Opposition.215 Reference to the bid in the June 2011 memorandum was of a passing nature but had prophetically recognised the bid as a political elephant trap:216 I have met or spoken to most of the big media owners Michael Lyons / Mark Thompson, [sic] James Murdoch, Archie Norman / Adam Crozier. Following a steer by Nick Clegg, I am sending signals publicly and privately that our rhetoric will be more generous to the BBC than it was in opposition. But the issues that matter to our own supporters BBC salaries and profligate use of licence fee money will be sortable when we have the licence fee negotiations next year. I steered clear of commenting on News Corps plans to buy out the 61% of Sky they do not own on the grounds it was a competition issue for regulators and not for ministers but there are likely to be further elephant traps in the media landscape which we must be careful to avoid. (emphasis added) 4.47 The second note leaves Mr Hunts sympathetic views about the bid, and the reasons for them, in no doubt. Crucially, there was nevertheless a very clear recognition that approving the bid was not a Government issue, that the decision had to be kept at arms length, and that any meeting with Dr Cable had to be confined to policy issues and not to the decision on the bid:217 A lot has been happening in my sectors so here goes with a brief update:
4.46
p2, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH14-MOD300008107MOD300008132-docs-566-572.pdf 215 p57, para 178, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 216 pp57-58, para 181, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 217 pp58-59, para 182, ibid
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NewsCorp/Sky bid James Murdoch is pretty furious at Vinces referral of Ofcom. He doesnt think he will get a fair hearing from Ofcom. I am privately concerned about this because NewsCorp are very litigious and we could end up in the wrong place in terms of media policy. Essentially what James Murdoch wants to do is repeat what his father did with the move to Wapping and create the worlds first multi-platform media operator, available from paper to web to TV to iPhone to iPad. Isnt this what all media companies have to do ultimately? And if so, we must be very careful that any attempt to block it is done on plurality grounds and not as a result of lobbying by competitors. The UK has the chance to lead the way on this as we did in 80s [sic] with the Wapping move but if we block it our media sector will suffer for years. In the end I am sure sensible controls can be put into any merger to ensure there is plurality, but I think it would be totally wrong to cave in to the Mark Thompson [sic] / Channel 4 / Guardian line that this represents a substantial change of control given that we all know Sky is controlled by NewsCorp now anyway. What next? Ofcom will issue their report saying whether it needs to go to the Competition Commission by 31 December. It would totally wrong [sic] for the government to get involved in a competition issue which has to be decided at arms length. However I do think you, I, Vince and the DPM should meet to discuss the policy issues that are thrown up as a result. (emphasis added) 4.48 It is not perhaps surprising that Mr Cameron did not remember the existence of the note when he was considering how to react to publication of Dr Cables comments on 21 December 2010, more than a month later. Had he done so, I have no doubt that he would have asked for it to be considered by the Treasury Solicitor along with Mr Hunts public comments about the bid:218 The issue here is I dont particularly remember this note, and crucially, I didnt recall its existence on the day of 21 December when we were making this decision, and I say that frankly. Obviously if I had recalled it, I would have fed it into the system, as it were, but as Im sure well come to, its pretty clear from the legal advice we have that that wouldnt have actually made any difference to the outcome. 4.49 Mr Camerons retrospective conclusion was, in fact, borne out by the Treasury Solicitor. The statement made by Sir Paul to the Inquiry was, indeed, that if had he known about the 19 November 2010 memorandum, it would have made no difference to his advice:219 I am quite clear that my advice to Sir Gus would not have been any different had I seen the note at the time. Jeremy Hunt appears to have been providing his personal opinion to the Prime Minister at a time when he had no decision-making powers in respect of the bid. Just as in his public statements he offers personal views on the plurality issues. Just as in his public statements he also acknowledges that these are in effect regulatory issues to be taken quasi-judicially. I thus do not think there is anything in the note to indicate that Jeremy Hunt could not have properly set aside his personal views and considered the bid on the basis of the evidence, advice and expert opinion before him once he had inherited the relevant powers.
p16, lines 17-24, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-14-June-2012.pdf 219 pp5-6, para 15, Paul Jenkins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statementof-Paul-Jenkins-taken-as-read3.pdf
218
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4.50
It is noteworthy that Mr Hunts suggestion that there should be a meeting between Mr Cameron, Mr Clegg, himself and Dr Cable to discuss policy issues thrown up as a result of the bid was not acted upon, as Mr Cameron was able to confirm:220 I do not recall responding to Jeremy Hunts note either in writing or by speaking to him about it. The meeting he suggested take place did not happen and I do not recall any arrangement being made for it to happen...
4.51
Turning to Mr Hunt, he acknowledges that he did not volunteer the fact that he had been in contact with James Murdoch on 21 December 2010 and had congratulated him on the European Commissions decision by text, nor did he raise the existence of his 19 November 2010 memorandum. Put shortly, he did not think that they demonstrated any view substantively different to that which he had publicly expressed:221 Q. Were you asked, though, about anything which was not in the public domain, but which might embarrass you should it enter the public domain? A. No. Q. Do you feel that such matters should have been volunteered by you? A. Are you talking about my memo to the Prime Minister? Q. Well, the memo to the Prime Minister, the conversation with Mr Murdoch and the text message weve looked at about the congratulations for Brussels, just Ofcom to go. Its the accumulation of pieces of evidence. Its that material, Mr Hunt, basically. A. I think that all that material is entirely consistent with the overall position that Id taken that I was sympathetic to the bid and I didnt think there was a media plurality issue, I didnt think we should second-guess the regulators and I thought that due process should be followed. Q. Isnt there a difference, though, between what was stated publicly at interview with the Financial Times and the sort of material weve been looking at? Do you see there as being possibly any difference? A. I dont think theres a substantive difference because substantively my position in all those communications is the same: I, broadly speaking, had the view that BSkyB was already controlled by the Murdochs so I didnt think there was a change in plurality, but I believed that due process had to be respected, so I do not think theres a particular difference.
4.52
It is not in the least surprising that the Secretary of State for Culture, Media and Sport had an opinion upon a major media issue, in this case the bid by News Corp, or that he should have contact with a major player in his sector of responsibility, such as James Murdoch: on the contrary, it would have been more surprising had he not had a view or, indeed, contact with Mr Murdoch. Moreover, what Mr Hunt was saying in private to Mr Murdoch and writing to the Prime Minister was not inconsistent with what he was putting into the public domain. He did, though, go into more detail, his comments were much nearer in time to the transfer to him of responsibility for the bid and he was more emphatic in his support for the bid in private. The mere fact of his private statements increased the quantity (and quality) of what he had said and written on the subject.
p59, para 183, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-DavidCameron-MP.pdf 221 pp40-41, lines 12-15, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf
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4.53
In relation to a decision which was as politically charged as this one, and a decision about the handling of a process which was quasi-judicial and therefore legally challengeable on grounds of appearance of bias, it would have been prudent for Mr Hunt to have reminded those at No 10 of the fact of his 19 November 2010 note and to have volunteered the extent of his private contact with James Murdoch. The additional information, provided openly and transparently, could then have been taken into account and fully informed advice given. It is not necessary for me to decide whether or not knowledge of Mr Hunts contact with James Murdoch would have made any difference to the advice given by the Treasury Solicitor. He has confirmed that knowledge of the note would not have made a difference and the way in which he explained his view makes it is reasonable to infer that he would have maintained that position had he also known about the private contact with James Murdoch. I accept, however, that this is entirely speculative and to have pressed Sir Paul to speculate further as to what his advice might have been ex post facto would have been unfair. More important, for the purposes of the Inquiry, it is entirely unnecessary because whatever the answer, the wider point for the future conduct of politicians (and especially those in power) remains the same. Ministers must be especially vigilant in matters relating to media policy, especially quasijudicial decisions, and indeed to any circumstance in which they are called upon to exercise discretion which might impact on those with whom they have or have had a relationship, whether working or personal. In short, they must put themselves above suspicion. The decision which Mr Cameron made, subject to legal advice, and its timing were entirely understandable. There were enormous pressures on the Government to act quickly. The media storm would only have gathered strength if decisive action had not been taken. News Corp were understandably deeply concerned by Dr Cables words and a solution which restored confidence in the decision making process was urgently required. There were sound reasons not to remove Dr Cable from office, articulated by Mr Cameron and Mr Osborne in evidence. The Secretary of State for Culture, Media and Sport was the obvious candidate to entrust with the decision because of his portfolio. Finding a suitable decision maker who did not have a prior view one way or another about the bid would most likely have proved to be a wild goose chase. Almost every leading politician has a view, one way or the other, about Rupert Murdochs companies and it is often strongly held.222 The evidence does not begin to support a conclusion that the choice of Mr Hunt was the product of improper media pressure, still less an attempt to guarantee a particular outcome to the process, a subject to which this Report returns following consideration of Mr Hunts handling of the bid. The question of Mr Hunts disclosures at this point does, however, raise one further point of interest. Had he disclosed the full extent of his relevant interactions at the outset, an opportunity would have arisen for those responsible for doing so to offer him more specific advice on the conduct of the bid process and on managing the risks of appearance of bias, tailored to the specifics of the circumstances. That might have made a difference, but I say no more than that.
4.54
4.55
4.56
pp60-61, Lord ODonnell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-14-May-2012.pdf
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5. December 2010 July 2011: The Rt Hon Jeremy Hunt and the Department for Culture, Media and Sport
5.1 The delicacy of the task for which Mr Hunt assumed responsibility should not be underestimated. From a political perspective the decision was inherently controversial, a hot potato as the Prime Minister put it.223 From a procedural point of view, Dr Cables apparent bias had caused News Corp considerable concern about, and lack of faith in, the process up to this point, as is plain to see from its solicitors subsequent correspondence.224 Mr Hunts own comments about the bid, whilst not enough to prevent him from taking on the task, were such as to generate unease on the part of opponents to the bid. Consequently, as both Mr Kilgarriff and Mr Stephens had astutely recognised, there was a need to take particular care going forward.225 Mr Hunt had to be scrupulously fair to both sides and had to be seen to be so. He was walking a tightrope. This Report first considers the formal handling of the bid by Mr Hunt and DCMS before separately considering the lobbying which was happening concurrently behind the scenes and the various unsolicited submissions and representations which were made to the Secretary of State. The handover of responsibility was executed promptly. It involved the transfer of 70 or so staff from BIS to DCMS and a high level meeting on the morning of 22 December 2010.226 Mr Stephens described these immediate steps, identified the main DCMS attendees at the meeting, and emphasised that the requirements of a quasi-judicial process were addressed at the meeting:227 Given the circumstances surrounding the transfer of responsibility, I was particularly conscious of the need to establish robust processes to support the Secretary of States new responsibilities. I also had to oversee the immediate transfer of some 70 or so staff from BIS to DCMS, with their responsibilities and budgets. I identified Jon Zeff, then Director, Media, as the lead policy official and he ensured that the relevant BIS officials and lawyers were present at a meeting the next day (the 22nd December) with the Secretary of State. I also attended that meeting, along with Jon Zeff, a DCMS lawyer, and Adam Smith... At that meeting BIS officials briefed the Secretary of State on his functions and responsibilities, the decision already taken and the next steps. In particular they reinforced the advice in the Departments submission to the Secretary of State of 12th November that this was a quasi-judicial process and set out what that required...
5.2
5.3
5.4
p12, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-AfternoonHearing-14-June-2012.pdf 224 pp7-8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH4.pdf 225 p22, Jonathan Stephens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-AfternoonHearing-25-May-2012.pdf; p2, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/ExhibitJH14-MOD300008107-MOD300008132-docs-566-572.pdf 226 there is no suggestion that any of the staff transferred had been working on the bid. Assuming that to be the case, there was no continuity provided in that way 227 pp4-5, Jonathan Stephens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-statement-ofJonathan-Stephens3.pdf, and note at p14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/ExhibitJS11.pdf
223
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5.5
Mr Hunt was sure that the term quasi judicial was used when his role in the process was outlined at the meeting. He had not himself exercised a quasi judicial role before.228 But he was well aware of the sensitivities:229 LORD JUSTICE LEVESON: [I]t was abundantly clear to you, wasnt it that enormous care had to be exercised? One of the things in the note from BIS was a reference to the fact that the Secretary of State for BERR the decision to intervene in the Lloyds HBOS merger [-] was judicially reviewed on the basis that his discretion had been fettered by comments by the Chancellor, so great sensitivity around all these decisions? A. Absolutely right.
The OFT and Ofcom reports

5.6 The OFT reported to Mr Hunt on 30 December 2010, predictably concluding that the proposed transaction, if executed, would constitute a European relevant merger situation. This formally confirmed that the Secretary of State did have jurisdiction to make a reference to the Competition Commission under Article 5(3) of the Enterprise Act (Protection of Legitimate Interests) Order 2003 (the 2003 Order) to address any media plurality concerns if he believed that the relevant statutory conditions were satisfied.230 The following day, Ofcom delivered its keenly anticipated report on plurality, recommending a fuller second stage review by the Competition Commission.231 Ofcom put its advice and conclusion in this way:232 Ofcoms advice, based on the evidence and reasons set out in this report and summarised in the executive summary, is that it may be the case that the proposed acquisition may be expected to operate against the public interest since there may not be a sufficient plurality of persons with control of media enterprises providing news and current affairs to UK-wide cross-media audiences. In reaching this view we do not rely on the dynamic effects discussed in full in Section 6. Therefore we believe there is a need for a fuller second stage review of these issues by the Competition Commission to assess the extent to which the concentration in media ownership may act against the public interest, and we advise the Secretary of State accordingly. 5.8
5.7
Ofcoms work had drawn into focus a wider issue concerning the adequacy of the regulatory framework and in particular the lack of a mechanism with which to address a threat to plurality arising from the organic growth of a company. Whilst this lacuna was not immediately relevant to the bid, the recommendation is highly relevant to the Terms of Reference and
pp49-50, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-31-May-2012.pdf 229 p58, lines 15-23, ibid 230 pp123 130, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH1MOD300004241-MOD300004682-docs-1-52.pdf 231 pp131 286, ibid 232 p145, ibid
228
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is further analysed below.233 For present purposes it is sufficient to note and endorse the recommendation which Ofcom made in Chapter 7 of its report:234 Under the current statutory framework, a media public interest consideration of plurality can only be triggered when there is a proposed merger involving media enterprises. The future market developments considered in this report suggest that the current statutory framework may no longer be fully equipped to achieve Parliaments objective of ensuring sufficient plurality of media ownership. The market developments identified include the risk of market exit by current news providers, or a steady organic growth in audience shares and increase in ability to influence by any one provider. For example, in a situation where a company grows organically through entirely legitimate business strategy which does not involve any anti-competitive behaviour but finds itself in the relevant media market with 90% share of audiences. While this may not have raised competition concerns, it very clearly may raise plurality concerns. While there is a clear statutory framework for remedying competition concerns which may arise in the context of a merger, the same is not true of concerns related to plurality more generally. This means that if a transaction is found not to operate against the public interest in relation to plurality at the time, there is no subsequent opportunity or mechanism to address or even to consider any plurality concerns which develop over time. ... We therefore also recommend that the Government consider undertaking a wider review of the statutory framework to ensure plurality in the public interest. Specifically, we believe there may be value in providing for intervention where plurality concerns arise in the absence of a corporate transaction involving media enterprises and which are not safeguarded by the current media ownership rules. (emphasis added)
Procedural arrangements and meetings with James Murdoch

5.9 Mr Hunts formal task, having received the above reports, was to decide whether or not to refer the proposed transaction to the Competition Commission. The applicable test was (and is) that provided by article 5(3) of the 2003 Order which states: 3) The Secretary of State may make a reference to the Commission if he believes that it is or may be the case that (a) arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a European relevant merger situation; (b) one or more than one public interest consideration mentioned in the European intervention notice is relevant to a consideration of the European relevant merger situation concerned; and (c) taking account only of the relevant public interest consideration or considerations concerned, the creation of that situation operates or may be expected to operate against the public interest.
233 234
Part I, Chapter 9 pp221 145, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH1MOD300004241-MOD300004682-docs-1-52.pdf
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5.10
As is the case at the intervention stage, the test at the referral stage contains a discretion. The discretion allows a low threshold for intervention. Mr Hunt was bound by article 5(5) of the 2003 Order to accept the decision of the OFT on jurisdiction which, in any event, was uncontroversial. That disposed of the consideration under article 5(3)(a) of the test. In effect it remained for him to decide whether or not to follow Ofcoms recommendation to refer the bid to the Competition Commission in this case. Before addressing the substantive decision, Mr Hunt had first to consider procedure. In particular, Allen & Overy, solicitors acting on behalf of News Corp, had lost no time in writing to him on 23 December 2010, complaining in strong terms about his predecessors handling of the matter and requesting to know how Mr Hunt intended to proceed.235 DCMS replied promising a redacted copy of Ofcoms report when it was available and assuring News Corp that it would be given: reasonable opportunity to make written and oral representations before the Secretary of State takes his decision...236 Allen & Overy wrote again on 5 January 2011 pressing for progress and expressing fears about how long the process might take.237 By this time The Treasury Solicitor (TSol) was acting for the Secretary of State and replied, explaining that he did not wish to delay the decision, and that Mr Hunt was prepared to meet News Corp.238 It is entirely understandable, in the exceptional circumstances that the bid had come to him, that Mr Hunt should have done so. The meeting with News Corp took place on 6 January 2011. Mr Hunt had conferred with his officials and legal advisers the previous day in preparation, and an aide memoire was prepared for him.239 The Secretary of State was accompanied at the meeting by Mr Zeff, Mr Kilgarriff, Adam Smith and his Private Secretary. News Corp was represented by James Murdoch, Mr Michel and others. A detailed note was taken and it was expressly recorded that those present would be open about the fact of the meeting:240 It was agreed that subject [sic] of these discussions would be kept confidential at this stage but both sides would be open about the fact meetings that [sic] had taken place. It was expected that the OFCOM and any News Corp submissions would be released no later than the SoS decision on referral.
5.11
5.12
5.13
5.14
According to the minute Mr Hunt broke the news at the meeting that he was minded to refer the proposed transaction to the Competition Commission, explaining that Ofcoms recommendation, together with advice which he had received from counsel, had caused him to reach this provisional view. He referred to the very low threshold set by the statutory test. A redacted copy of the Ofcom report was to be provided to News Corp the following day and the company was to have a week to make written submissions, if it so wished, before Mr Hunt made a final decision. These submissions were not to be a re-submission of News Corps evidence to Ofcom. If, as a result of such submissions, or certain clarifications which Mr Hunt wished to seek from Ofcom, Mr Hunt became minded not to refer the deal then other interested parties would be given the opportunity to state their cases.
235 236
pp85-86, ibid p87, ibid 237 p292, ibid 238 p295, ibid 239 pp299-301, ibid 240 pp296-298, ibid
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5.15
Amongst a number of points, News Corp expressed serious concerns about Ofcoms work, and warned that the practical effect of a referral would be to decrease the likelihood of the sale being completed and reserved its legal rights. Those speaking on behalf of the company also made clear its fallback position, which was that a further meeting would be sought if its written submissions were not successful, in order to discuss those submissions and potential remedies as necessary. By remedies News Corp was referring to undertakings in lieu of referral (UIL) which the Secretary of State has the power to accept under the Enterprise Act:241 The Secretary of State may, instead of making such a reference and for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest which have or may have resulted, or which may be expected to result, from the creation of the European relevant merger situation concerned accept from such of the parties concerned as she considers appropriate undertakings to take such action as he considers appropriate.
5.16
The terms of the Departmental aide memoire, which are realistic, give an insight in to the thinking in DCMS; it suggests that Mr Hunt was not going to be easily moved from his provisional view but that he was open to a further meeting to discuss any written submissions which News Corp might produce:242 I have carefully read the Ofcom report and I find it very difficult on the basis of what I have seen to date to see any grounds which would allow me to not refer this case to the Competition Commission, especially given that the threshold for referring is relatively low. ... I will consider carefully any arguments you subsequently put to me and would be happy to have a further meeting on the substance of the report. But my feeling at this stage is that that [sic] you will have to identify some very serious flaws in Ofcoms facts or analysis before I could consider not referring... (original underlining)
5.17
Formal minded to letters were sent by Mr Hunt to both News Corp and BSkyB on 7 January 2011 enclosing both the OFT report and a redacted version of Ofcoms report. The letters explained that the Secretary of State was minded to refer the matter but, as is required by the Enterprise Act 2002,243 consulted the relevant parties likely to be adversely affected by the decision if it was confirmed. In this case the letters did so by inviting written submissions and offering a meeting.244 On 10 January 2012, Mr Hunt, Mr Smith and officials met Ed Richards, the CEO of Ofcom. This was to seek clarification on various aspects of the Ofcom report.245 On 13 January 2011, BSkyB made detailed written submissions to the Secretary of State, urging him to reject Ofcoms advice and to permit the transaction to complete without a referral.246 These submissions were followed very shortly afterwards by those of Allen & Overy, on behalf of News Corp, which were delivered on 14 January 2011 in both confidential
5.18 5.19
para 3, Schedule 2, of the 2003 Order pp299-301, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH1MOD300004241-MOD300004682-docs-1-52.pdf 243 s104 Enterprise Act 2002 244 pp302-307, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH1MOD300004241-MOD300004682-docs-1-52.pdf 245 pp313-315, ibid 246 pp318-324, ibid
242
241
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and redacted format. Their very detailed submissions amounted to a sustained full frontal attack on the Ofcom report, tantamount to an allegation of bias:247 News [sic] believes that Ofcom has failed to approach the effects of this Transaction with an open mind and has carried out a review process with the intention of identifying concerns. Ofcom has been noticeably more receptive to submissions made by third party complainants than it has been to submissions made by News and has chosen to present the evidence in a one sided way (in some cases selectively omitting relevant evidence). 5.20 Conspicuously, the submissions did not conclude by throwing down the gauntlet to the Secretary of State, although they were careful to preserve News Corps legal position. Instead they culminated by indicating a willingness on the part of News Corp to give UIL which would remedy, mitigate or prevent all of the effects adverse to the public interest which Ofcom erroneously identifies may result from the Transaction.248 It was on this potential alternative to a referral which News Corp thereafter focused its effort, following up its submissions of 14 January 2011 with draft UIL under cover of a letter dated 18 January 2011.249 News Corps proposal was to spin off Sky News as an independent company so as to guarantee its continued editorial independence and to commit to a long term carriage agreement so as to ensure the commercial viability of the hived off entity. The arrangements were summarised by Allen & Overy in a covering letter expressed in these terms:250 The attached UIL proposal involves a commitment from News that Sky News will be spun off as an independent UK public limited company (Newco), with its shares publicly traded. Shares in Newco would be distributed to the existing shareholders of Sky, as far as possible, in the same proportions as their existing shareholding (so that News will retain only the same shareholding in Sky News as it currently has in Sky, 39.1%). The corporate governance structure of Newco will also replicate the effect of the existing governance structure of Sky, which has been in place for a number of years. In particular, after closing: (a) The voting agreement dated 21 September 2005 between the Sky [sic] and News which prevents News from exercising more than 37.19% of the votes will be replicated in respect of Newco; (b) a majority of the board of Newco shall comprise non-executive Directors determined by the board to be independent;
5.21
(c) material transactions between Newco and News/Sky will require the approval of Newcos Audit Committee, which will consist exclusively of independent non-executive Directors. In addition Newcos constitutional documents will provide that such transactions may, depending on materiality, require an independent fairness opinion or Newco independent shareholder approval (by virtue of Newco applying controls that have equivalent effect to those imposed by Chapter 11 of the Listing Rules).
247 248
p349, ibid; see in general pp325-379, ibid p349, ibid 249 pp380-385, ibid 250 p2, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-33.pdf
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There will also be a number of commercial agreements between News/Sky and Newco, including a long-term carriage agreement which will provide Newco with a significant and committed long term revenue stream. None of the commercial agreements between News/Sky and Newco will give News /Sky any right to influence the editorial content of Sky News. A business plan for Sky News and a latter from News financial advisers regarding the suitability of Sky News for admission to trading will be made available to the Secretary of State in due course. 5.22 The thinking behind the proposal was that by preserving a separate legal identity for Sky News and by safeguarding its editorial freedom, Ofcoms plurality concerns would be sufficiently addressed. Allen & Overy argued:251 Ofcom states in paragraph 5.46 of the Report that: As a result, today [Sky News] makes a strong and positive contribution to plurality. [...] The proposed transaction would result in Sky ceasing to be a distinct media enterprise from News Corp. The attached UIL proposal, under which Sky News would be spun off as an independent legal entity, will fully safeguard the status quo as regards the editorial independence of Sky News and will ensure that Sky News remains as a distinct media enterprise and independent broadcast voice. This fully addresses all of the concerns identified by Ofcom in its Report and relied upon by Ofcom in recommending to the Secretary of State that he refer the Transaction to the CC. The UIL will therefore remedy, mitigate or prevent any purported effects resulting from the Transaction which have been identified by Ofcom as potentially adverse to the public interest. 5.23 Mr Hunts initial reaction was that the UIL was: ...a pretty big offer. I mean they were basically saying this was a decision I had about news plurality, and they were saying that they would exclude the one news organisation thats part of BSkyB from the whole deal.252 On 20 January 2011, a second high level meeting between Mr Hunt and James Murdoch took place to enable News Corp to expand upon its written submissions and to speak to its proposed UIL. Both parties took the meeting very seriously. Mr Hunt was accompanied by a number of DCMS officials, independent specialist counsel, and both of his SpAds. Mr Murdoch brought Mr Michel and others. At the outset Mr Hunt explained that he was still minded to refer the case to the Competition Commission, notwithstanding News Corps written submissions. He maintained that the low threshold for referral combined with the clear disagreement between Ofcom and News Corp was leading him to the view that a referral for further investigation was the reasonable approach. He would though be prepared to consider UIL as an alternative to referring the matter. Undeterred by Mr Hunts clear indication that he was minded to refer, the minutes show that News Corp maintained its furious rebuttal of the Ofcom report with a lengthy series of points, although there is no indication that they moved Mr Hunt from his provisional view. The Secretary of State was much more receptive in principle to the UIL, which were discussed next, but he was not prepared to be rushed when it came to the detail. He concluded that:
5.24
5.25
ibid pp71-72, lines 4-8, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf

252
251
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...he was prepared to explore the proposal but would want to look very closely at the detail, including the implications for financial viability of an independent Sky News.253 5.26 Next steps were outlined. They involved publication of redacted versions of the Ofcom report and of News Corps written submissions. Mr Hunt would announce that he was minded to refer the bid to the Competition Commission but that he was first going to explore the potential remedy offered by News Corp. Mr Hunt would start this process by reverting both to Ofcom and the OFT for further advice. The involvement of these regulatory bodies at every turn, even when not required by statute, was to become the hallmark of Mr Hunts formal approach to the bid. An undertaking that the representations and UIL reflected the position of BSkyB was sought together with fully worked up UIL. The Secretary of State made it clear that in the event that he was minded to accept the UIL, there would be a statutory public consultation. Mr Hunt described Mr Murdoch as very cross about the continued involvement of Ofcom because ...he considered that was tantamount to wanting to kill the deal, because he believed that Ofcom would use every mechanism at their disposal ....254 It is certainly the case that this was one of a number of steps which Mr Hunt took during the process which were not to News Corps liking. At a meeting between lawyers on 21 January 2011, Allen & Overy advanced arguments which appear to have been designed to reduce the role of OFT and Ofcom, or even to dissuade the Secretary of State from reverting to them. The firm also argued that early publication of the Ofcom report would harm the process. These arguments, although properly made, were not accepted and are mentioned because they are illustrative of the procedural history and the careful approach of DCMS and its advisers in relation to News Corp.255
5.27
5.28
Consideration of the proposed UIL: advice and consultation

5.29 Fully worked up draft UIL were provided by News Corp on 24 January 2011 and the next day Mr Hunt made a written statement to Parliament explaining the timeline and process which he had followed up to that point, as well as making public the fact that he was minded to refer the bid to the Competition Commission but was first considering the UIL offered by News Corp. His meetings with News Corp and Ofcom were covered and the statement was accompanied by publication of the December reports from OFT and Ofcom, the latter in redacted form, the Secretary of States minded to letters and the resulting submissions from both BSkyB and News Corp (in redacted form). On their face, the written ministerial statement and associated press release appeared to be models of transparency. But, as is explored further below, there had in fact been a considerable volume of private communication with News Corp going on behind the scenes which is not mentioned in the statement.256 Formal letters were sent by Mr Hunt both to Ofcom and the OFT on 27 January 2011. Ofcom was asked, pursuant to s106B Enterprise Act 2002, ...for advice on the extent to which you think that the enclosed News Corp undertakings in lieu (UIL) address the potential impact
I
5.30
p388, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH1-MOD300004241MOD300004682-docs-1-52.pdf 254 pp73-74, lines 17-20, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf 255 pp58-59, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH4.pdf 256 pp426-431, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH1MOD300004241-MOD300004682-docs-1-52.pdf; see Lobbying Behind the Scenes below
253
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on media plurality identified in Ofcoms report...257 The OFT was asked, pursuant to s93 of the same Act, ...to consult both merging parties with a view to discovering whether those undertakings are in your view practically and financially viable, so that they would be acceptable to me....258 The day before these letters were sent, Operation Weeting commenced. At that stage, Mr Hunt regarded phone hacking at News International as having no bearing on his consideration of News Corps bid. He said in evidence ...my perspective at this point is: this is a police matter.259 5.31 Both regulators were asked to respond within 14 days and both met that deadline with responses dated 11 February 2011. Ofcom recognised the proposed UIL as a significant step by News Corp and regarded UIL, in principle, as a solution to its plurality concerns. However, it did not consider that the UIL proposed by News Corp afforded sufficiently tight governance arrangements to meet those concerns and it outlined four governance requirements which it felt had to be met:260 The Board of Newco should consist of a majority of independent directors, independent directors being directors who have no other News Corporation or News Corporation associated interest; The Board of Newco, including the independent non executive directors, should have a combination of both senior editorial and business experience/expertise; The Chairman of Newco, should be an independent non executive; There should be a sub-committee of the Board of Newco to oversee editorial independence and integrity of Newcos services (the Board Editorial Committee). 5.32 Ofcom had been in contact with News Corp which had responded to Ofcom in terms indicating a willingness to meet the first two concerns and proposing an alternative solution in respect of the fourth: an alternative which was described by Ofcom as a promising basis from which to work.261 The sticking point was the third of the points listed above, the requirement for an independent Chairman. On that point, Ofcoms advice was:262 Without such an undertaking, it would be open to the Newco Board to appoint a Chairman who is affiliated with News Corporation. Given the nature of Newco and its relationship with News Corporation as set out above, we consider this would undermine the effectiveness of the proposed UIL in meeting our plurality concerns and the credibility of the undertakings. 5.33 The OFT set out a number of additional undertakings which it considered that it would be necessary for News Corp to give in order to ensure that the UIL were practical and viable in the short to medium term. It also identified an essential structural limitation in that the carriage agreement at the heart of the scheme was of finite duration, warning that: The OFT, however, considers that the finite duration of the carriage agreement, in particular, entails
pp434-435, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH1MOD300004241-MOD300004682-docs-1-52.pdf 258 pp436-437, ibid 259 p83, lines 24-25, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf 260 p3, and see more generally the whole document, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/04/KRM17-Document-53.pdf 261 p220, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM91.pdf 262 p5, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-53.pdf
257
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a material risk to the long term viability of Newco and hence the UIL.263 Ofcom appears to have been less concerned about this factor, considering the proposed ten year duration for the carriage agreement to be long term in the context of the industry dynamics of the media sector.264 Otherwise Ofcom did not have anything to add to the OFTs assessment. 5.34 DCMS officials advised Mr Hunt to permit more time to see whether News Corp was prepared to amend its UIL so as to meet the regulators concerns.265 Mr Hunt did so but set News Corp a very tight deadline of 24 hours in which to indicate in principle that it would make the necessary changes.266 It amounted to an ultimatum, the core part of which was worded in the following terms:267 There are therefore four critical matters which need to be resolved if I am to consider accepting your undertakings: The Board of Newco would need to be independently chaired. I agree with Ofcoms assessment that, without such an undertaking, the Newco Board could appoint a Chairman who is affiliated with News Corporation which would undermine the spirit and potentially the practical effect of undertakings designed to address concerns about plurality. There needs to be a non-reacquisition commitment as set out by the OFT. Whilst I understand that it is proposed that this could lapse after 10 years, I quite understand the OFTs concern that there should not be a carve-out in the event of a third party bid for Newco. The key contracts would need to be approved by me. At a minimum this would cover the carriage agreement and the brand licensing agreement. I would anticipate asking Ofcom and the OFT to advise me on these contracts at the appropriate time. There needs to be more clarity around the definition of material transactions (as identified in para 8.11 of the OFT report) and the assets to be transferred (paragraph 9.7 9.14). There are also a number of other important issues where there is agreement in principle, or a large measure of agreement, and these too would need to be agreed and incorporated into the undertakings in lieu. If you are unwilling to agree to the necessary changes, I will refer the merger to the Competition Commission. If, on the other hand, you will accept that in principle these changes can be made, and confirm that to me within 24 hours, I will formally ask Ofcom and the OFT to continue their discussions with News Corp with a view to producing as soon as possible a set of finalised undertakings in lieu which I can consider. If I then propose to accept those finalised undertakings in lieu of a reference, they can then be published and consulted on as the legislation requires. 5.35
263 264
The consequences for News Corp, and James Murdoch personally, of accepting these further restrictions were not insignificant as Mr Hunt explained to the Inquiry:268
p7, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-54.pdf p7, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-53.pdf 265 p75, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH2-MOD300004683MOD300004948-docs-53-104-and-MOD3000013794-MOD3000013796-doc-598.pdf 266 pp1-2, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-55. pdf 267 p2, ibid 268 p76, lines 2-23, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf
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Q. In other words, [the Chairman of Newco] wouldnt be Mr James Murdoch? A. That was a very, very significant thing for Mr Murdoch. I mean you know, News Corporation thinks that one of its primary functions is what it says on the tin, is news. He first of all didnt think he should have to spin off Sky News at all because he didnt believe there was a plurality issue with the original proposal, and this was going to cost him hundreds of millions of pounds more; but secondly, he was at the time chairman of BSkyB, and that included being chairman of Sky News, and he thought he would he wanted to continue to be chairman. I think that was pretty important to him. And Ofcom did not want that, and so they so that was then presented to me. There were other things that Ofcom there were other concerns. There was a concern that they wanted to have very strict measures in place to stop News Corporation buying additional shares above 39 per cent. James Murdoch was very concerned, for example, that a commercial rival would come in and purchase the other 61 per cent of the shares and that might mean that he lost control of Sky News forever... 5.36 The short deadline prompted a swift response from James Murdoch who indicated by letter dated 16 February 2011 that News Corp was willing to agree to the suggested changes and enclosed draft amended UIL.269 This assent caused Mr Hunt formally to write to both OFT and Ofcom on 17 February 2011 asking them to agree a set of undertakings with News Corp and Sky so that he could make a final decision.270 On 1 March 2011 the OFT reported back to the Secretary of State communicating the news that satisfactory amendments had been proposed and enclosing draft UIL bearing the same date.271 Its conclusions were expressed in these terms:272 In light of the amendments proposed by News, and subject to prior approval of the key agreements, as described above, the OFT advises the Secretary of State that the Revised UIL are likely to be practically and financially viable in the short and medium term (that is, no more than 10 years). The OFT also advises the Secretary of State that the amendments made to the Revised UIL do not address the essential structural limitation identified in the Report, that the UIL offered are unlikely to be practically and financially viable over the long term. The relevance of this limitation ultimately depends on the time horizon which the Secretary of State, advised by Ofcom, considers relevant to ensure the effectiveness of the UIL in addressing any media plurality concerns. The OFT notes that Ofcoms advice of 11 February 2011 sets out its views on the dynamics of the industry. 5.38 The same day Ofcom expressed its view that the revised proposed undertakings did address the concerns which it had expressed in its 31 December 2010 report. Ofcom had also seen the latest report from the OFT and expressed its agreement with it.273
5.37
p1, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-56.pdf p1, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-58.pdf; p1, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-591.pdf 271 pp1-4, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-73. pdf; pp6-15, Rupert Mudoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-74. pdf 272 pp3-4, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-73. pdf 273 p5, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-72.pdf
270
269
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5.39
Accepting the advice, Mr Hunt proceeded to the next step which was to announce, on 3 March 2011, a statutory consultation exercise soliciting views as to whether the proposed UIL were sufficient to remedy, mitigate or prevent the public interest concerns in relation to media plurality raised by the merger. The Notice of Consultation allowed until 21 March 2011 for responses.274 There was an enormous response to the consultation exercise from an extraordinary variety of respondents. Solicitors Slaughter and May, who had been in regular correspondence with DCMS about the bid before having this formal opportunity to make submissions, lodged detailed submissions on behalf of the Alliance.275 BT, despite itself being a part of the Alliance made an individual submission. Lord Prescott and Tom Watson MP separately wrote to urge the Secretary of State to act upon the emerging evidence of criminal wrongdoing at the News of the World (NoTW), a theme which was to take on a growing significance in relation to the bid. They were amongst around 140 MPs who wrote to DCMS. The trade unions BECTU and the NUJ both responded, as did the TUC. Academics and individuals and companies from within the media industry added their voice, as did significant numbers of ordinary members of the public. Organised email campaigns instigated by pressure groups Avaaz and 38 Degrees resulted in tens of thousands of responses. Solicitors DLA Piper, acting for Avaaz, made detailed written submissions. Other not-for-profit or campaigning organisations also responded. The consultation even elicited a number of responses from the United States of America written by those who were unhappy with News Corps activities in that country. When the consultation period ended, DCMS had received 38,687 responses, of which about 37,700 were the product of the internet campaigning.276 Most were hostile to the UIL.277 By the time the response to the consultation was announced, the number had grown still further. Whilst the consultation was taking place, Mr Hunt and his officials were thinking ahead and, in particular, considering how best to meet key opponents of the bid. The internal e-mail of an official on 14 March 2011 recorded his thinking:278 Many thanks for briefing SoS this morning on the Newscorp/BSkyB merger. On the consultation and the process of analysing the responses, SoS was clear that we should take the necessary time to examine the substantive points raised about the UIL. His priority was to ensure that the final UIL are robust and viable in the long term. We must take care to avoid possible loop holes. [On] meetings, SoS wanted to be, and be seen to be, even handed with both proponents and opponents of the merger. To that end SoS agreed he would consider requests for meetings once written evidence had been submitted. In particular, SoS wanted the alliance of bodies working through Slaughter and May to be aware of this position and his willingness to meet, given the representations they have made throughout this process.
5.40
5.41
I
274
pp1-7, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-77. pdf 275 pp137-152, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH2MOD300004683-MOD300004948-docs-53-104-and-MOD3000013794-MOD3000013796-doc-598.pdf 276 p255, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH2-MOD300004683MOD300004948-docs-53-104-and-MOD3000013794-MOD3000013796-doc-598.pdf 277 p78, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning-Hearing31-May-2012.pdf 278 p265, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH2-MOD300004683MOD300004948-docs-53-104-and-MOD3000013794-MOD3000013796-doc-598.pdf
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5.42
Mr Hunt continued to make maximum use of the assistance available to him from Ofcom and the OFT writing to both on 18 March 2011, before the consultation had closed. He sought their advice on those responses which were material to the practical and financial viability of the proposed UIL, enclosing some at that juncture. The remaining material representations and a summary of all consultation responses were to follow. Mr Hunt also sought the regulators advice in relation to the detailed provisions on carriage, brand licensing and certain operation agreements set out in the proposed UIL which were later provided by News Corp.279 On 24 March 2011, the Secretary of State met with members of the Alliance. He was supported at the meeting by his Private Secretary, both of his SpAds, Mr Zeff, Daniel Beard of counsel, an in-house lawyer and a member of the DCMS Media Team. Ofcom and the OFT were represented, at the suggestion of the Alliance. For the Alliance there were representatives from Trinity Mirror, Guardian Media Group, Telegraph Media Group, Associated News and Media, and Slaughter and May. The Alliance explained the basis of its opposition to the UIL and support for a referral to the Competition Commission which the Secretary of State then discussed with them.280 DCMS had asked the Alliances public affairs advisers, Weber Shandwick, not to attend. Internal DCMS emails evidencing the debate which led to this decision reveal that there were differences of opinion. It is striking that amongst those arguing against their attendance was Adam Smith who wrote: No public affairs advisors from News Corp were in any of our meetings with them. It was News employees plus lawyers wasnt it? So I still feel they shouldnt be there.281 This view overlooked the fact that News Corp was relying upon its own in house public affairs team, of which Mr Michel was a part, and that Mr Michel had attended both meetings with the Secretary of State about the bid earlier that year.282 There followed a period during which three Labour politicians, Ivan Lewis MP (Shadow Secretary of State for Culture, Media and Sport), Lord Prescott and Mr Watson all pursued correspondence with Mr Hunt about the bid. Mr Lewis wrote on 30 March 2011 raising a number of questions about the bid and asking whether the Government would, in the light of the experience, remove politicians from such decisions in the future: In light of the very real issues of impartiality that have arisen in relation to this case will you consider including provisions in the Bill which would remove politicians from having any quasi-judicial role in relation to specific plurality and cross media ownership decisions?.283 The Secretary of State replied on 19 April 2011 but, on the last point, he did so in non-committal terms.284 The future role of politicians in media plurality and cross media ownership decisions is an important issue and is discussed further later in this Chapter.285
5.43
5.44
5.45
I
pp1-2, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-781. pdf; pp1-2, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-791. pdf; pp1-2, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-80. pdf 280 p28, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH3-MOD300004949MOD300005263-docs-105-163.pdf 281 p78, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH8.pdf 282 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Frederic-Michel1.pdf 283 p40, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH3-MOD300004949MOD300005263-docs-105-163.pdf 284 p84, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH3-MOD300004949MOD300005263-docs-105-163.pdf 285 See the Conclusion to this Chapter and Part I, Chapter 9
279
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5.46
On 11 April 2011, Lord Prescott followed up the letter which he had written on 15 March 2011 during the consultation period with a second letter.286 He developed and updated the point which he had made earlier about the unfolding story of phone hacking at the News of the World. During the intervening period, on 8 April 2011, News International had admitted that its previous investigations had not been thorough enough and indicated that it would be settling some civil cases. In particular, Lord Prescott asked the Secretary of State to delay his decision whilst the Metropolitan Police investigated and warned against approving the bid. Mr Hunt replied the next day. His stance, at that stage, on phone hacking was that: The phone-hacking allegations are of course very serious, but they are matters for the criminal courts. They have no bearing on the separate matter of media plurality, and my decision on the merger could be challenged if I allowed these allegations to colour my view.287 He also referred to s67(5) of the Enterprise Act 2002 which he considered prevented him from widening the scope of the intervention. Both of the points which Mr Hunt raised in response to Lord Prescott were the subject of further thinking and advice at DCMS. So far as the phone hacking allegations were concerned, on 18 April 2011, an official advised Mr Hunt that they might have some relevance to the decision on UIL, if the wrongdoing was known about and endorsed or ordered at a senior level within News Corp. The advice was put in these terms:288 The phone-hacking issues as currently admitted by News Corp cannot properly be considered by you when making your decision on the matters of plurality which were the subject of the public interest intervention. However, it is the nature of undertakings that they depend to a certain extent on trust. Our advice is therefore that those activities may be relevant to your decision, but only to the extent that they suggested that you could not reasonably expect News Corp to abide by their undertakings, for example if the wrong-doing was known-of and endorsed or ordered at a senior level within News Corp. This might also be relevant to the level of risk you want to assume in relation to the operational agreements (see above). (emphasis added)
5.47
5.48
At that stage, Mr Hunt did not believe that the evidence went so far as to give rise to a question of trust within News Corp, as opposed to NI:289 But the advice we got on 18 April did say that the one way that phone hacking could impinge was if they thought there was an issue of trust, so that accepting undertakings basically meant that you had to be confident that you could trust the people that you were doing a deal with over those undertakings.
So at that stage it was a matter about News International. It wasnt a matter that there was any evidence at all that it affected News Corporation executives that we were dealing with. We thought they had a problem with a company that was part of News Corporation group, but there was no evidence, and we didnt think wed have any legally robust basis to suggest at that stage there was an issue of trust.
pp70-72, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH3MOD300004949-MOD300005263-docs-105-163.pdf 287 p73, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH3-MOD300004949MOD300005263-docs-105-163.pdf; DLA, on behalf of Avaaz, had made legal submissions arguing to the contrary, pp88-89, 290, ibid 288 p79, ibid 289 pp84-85, lines 16-4, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf
286
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5.49
On or about 18 April 2011, the scope of the intervention was raised by the Secretary of State within his Department. Insofar as is material, an email of that date from Paul Oldfield, the Secretary of States Principal Private Secretary, read:290 Actions for our Comms meeting this morning ... SoS asked whether we could/should look to invoke the PI test re fit and proper person re Newscorp / Sky merger... A related email between Jon Zeff and Rita Patel, referring to that quoted above, put it this way:291 See below, SoS raised two points ... B) wants to make sure weve thoroughly kicked the tires on scope for invoking the standards limb of the pi test. Someone has suggested to him that we could instigate a new reference because information has come to light (on phone hacking) which wasnt available to vince c when he took the original decision. I was doubtful but agreed to check.
5.50
In the result Mr Hunt did not seek to widen the scope of the intervention. Whether he had the power to do so would have been an interesting legal question.292 He stuck to the line which he had adopted in correspondence, namely that s67(5) prevented him from doing so. Of course, whether or not he had the power to amend or replace the original EIN, Ofcom at all times had the power to remove BSkyBs broadcasting licence if it believed that that company was not a fit and proper person to hold it. In September 2012, that was a question which Ofcom did ultimately address concluding, after James Murdoch had stepped down as Chairman, that it was a fit and proper person. Of significance to the Inquirys consideration of the bid is the fact that, by asking the questions and raising the issues recorded in the internal emails quoted above, Mr Hunt demonstrates an open mind and a desire to act properly. There was a further exchange of letters when, on 24 May 2011, Lord Prescott copied an article from the Guardian reporting criticism of News Corp by former US Vice President Al Gore.293 Mr Hunt replied on 27 June 2011 pointing out the limited remit of his decision, and assuring Lord Prescott that he would only accept UIL which were legally robust and enforceable and which addressed the media plurality concerns.294 Meanwhile, on 19 April 2011, Mr Watson also wrote to Mr Hunt, following up a letter which he had sent on 24 January 2011, before the consultation. His first letter had raised phone hacking at the NoTW (to the extent then known) and urged Mr Hunt to widen the scope of his intervention to include News Corps commitment to broadcasting standards. He had concluded:295
5.51
5.52
p80, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH3-MOD300004949MOD300005263-docs-105-163.pdf 291 ibid 292 see the discussion in The Phone Hacking Scandal and the Withdrawal of the Bid subsection below 293 pp101-103, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH3MOD300004949-MOD300005263-docs-105-163.pdf 294 p175, ibid 295 p425, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH1-MOD300004241MOD300004682-docs-1-52.pdf
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So egregious are these breaches that I am surprised that you have not already commissioned Ofcom to test News Corps commitments to broadcasting standards. I request that you do so now as a matter of urgency. 5.53 Mr Hunt had replied to the earlier letter on 8 February 2011 pointing out (as he later did to Lord Prescott) that s67(5) of the Enterprise Act 2002 prevented him from making a further intervention in the case.296 Mr Watsons second letter updated his first because News Group News Ltd had, in the meantime, admitted liability in some of the civil claims arising from voicemail hacking. He repeated his call for a widening of the scope of the intervention, suggesting an amendment to the original EIN and argued that any UIL given by News Corp would be unreliable:297 Clearly Newss [sic] illegal activities render them unsuitable to own Sky and I believe you ought to specify this as a public interest consideration. If it is the position under the enterprise Act that there may be only one intervention notice given to the OFT then the notice should be amended to add reference to the broadcasting standards commitments mentioned above particularly in the context of Newss [sic] admission of guilt; and the matter should be referred once more to Ofcom to carry out further investigations in this regard. You should dismiss the UIL being offered by News since they patently cannot be relied upon and the matter should be referred to the Competition Commission for a detailed investigation. 5.54 Mr Watson wrote again on 10 May 2011 to communicate the fact that other criminal trials have been launched that strengthen my original concerns and to chase for a response.298 Mr Hunt responded on 17 May 2011 explaining that an EIN, once issued could not be amended, but that Ofcom has the power at any time to remove a broadcasting licence from a broadcaster it does not believe to be a fit and proper person. He only had power to refer the case to the Competition Commission on plurality grounds but assured Mr Watson that he would only accept UIL if they were legally robust and enforceable.299 The internal emails referred to above corroborate that this was indeed Mr Hunts intention. Mr Watson sought to continue the correspondence with a further letter on 21 June 2011 seeking a full list of News Corp shareholders but events soon overtook this request.300 The fact that the regulators were making good progress in their dealings with News Corp, which had now responded positively to virtually all the key issues and (eventually) provided all the documentation requested was reported to the Secretary of State on 13 May 2011.301 Ofcom and the OFT had been joined in their scrutiny of the commercial agreements which would give effect to the proposed UIL by solicitors Pinsent Masons, instructed by the Secretary of State to scrutinise them from the commercial perspective of Newco. Their work added an additional dimension to the checking process.302
5.55 5.56
p2, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH2-MOD300004683MOD300004948-docs-53-104-and-MOD3000013794-MOD3000013796-doc-598.pdf 297 p87, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH3-MOD300004949MOD300005263-docs-105-163.pdf 298 p90, ibid 299 p98, ibid 300 p146, ibid 301 p94, ibid 302 ibid
296
1366
5.57
It took until 22 June 2011 for the OFT and Ofcom to complete and deliver their advice. The OFT had not been moved fundamentally by the responses to the consultation but it had acted on a number of suggestions for the improvement to the UIL which News Corp had eventually adopted. The OFT put it this way:303 The Reviewed Responses do not, individually to collectively, provide reasons for the OFT to change the fundamental tenor of its March Advice. However, the Reviewed Responses do provide suggestions as to how the 1 March UIL could be improved so as to improve the practical and financial viability of the proposed UIL. The OFT has discussed these improvements with News, and News has been willing ultimately to accept all of the amendments which the OFT regards as material and desirable...
5.58
The resulting amendments to the UIL were listed in an Annex to the advice.304 Where suggestions or comments had not been taken forward, the OFT explained why. The advice made clear that none of the amendments could address the essential structural limitation identified in its December 2010 report which meant that, in its opinion, the UIL were unlikely to be practically and financially viable over the long term.305 As for the carriage and brand licensing agreements, they had been discussed and amended in places with the result that the OFT was satisfied, stating that:306 In light of the changes made, the OFT advises that the Revised Carriage Agreement and Revised Brand Licensing Agreement are consistent with the Revised UIL and the OFTs previous advice with regard to their practical and financial viability.
5.59
Ofcom similarly reported the strengthening of the UIL in response to issues identified in the responses to the consultation exercise. As to the long term viability of the UIL, it stood by its previous position that ten years in the media industry was long term. It pointed out that if News Corp sought to reacquire Sky News at the end of the period then the public interest test under the Enterprise Act 2002 might be triggered if the threshold criteria were met. Ofcom put it thus:307 As we have previously advised, we agree that the proposed UIL are not a permanent solution and that their effectiveness may start to diminish in the run up to the end of the 10 year period. We consider that a carriage agreement of a 10-year term in the context of industry dynamics in this sector is long term. This is because we consider there is likely to be significant evolution of the market and consumers use of news and current affairs over the next decade. As a result, the situation with regard to plurality may be significantly different in 10 years time. As set out above, at the end of the 10 year period, the prohibition on acquisition and the carriage agreement come to an end. If News Corporation wished to acquire the remainder of the shares in Newco after the end of the 10 year period, a media public interest test may be triggered if the threshold criteria in the Enterprise Act 2002 are met.
p149, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH3-MOD300004949MOD300005263-docs-105-163.pdf 304 pp153-157, ibid 305 p150, ibid 306 p151, ibid 307 p168, ibid; Ofcom also repeated its call for a review of the statutory framework to ensure plurality in the public interest in the longer term
303
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In order for the Secretary of State to have sufficient flexibility for dealing with plurality issues we would, however, refer to our previous advice that the Government should consider undertaking a wider review of the statutory framework to ensure plurality in the public interest in the longer term. We believe that the current system is deficient in failing to provide for intervention to be considered where plurality concerns arise in the absence of a relevant corporate transaction involving media enterprises, for example as a result of organic growth. 5.60 As had the OFT, Ofcom raised those responses to the consultation which it had not acted upon and explained why it had not done so. On the question of the carriage and brand licensing agreements, Ofcom was satisfied with revised versions of the agreements dated 15 and 16 June 2011 respectively. Overall, Ofcom was satisfied, concluding that:308 For all the reasons set out above and in our previous letters of advice, we consider that the revised proposed undertakings offered by News Corporation would address the plurality concerns identified in our report of 31 December 2010. 5.61 The Secretary of State accepted the advice of the regulators and prepared to make a further written ministerial statement. Before doing so he took advice from his officials on what could and could not be published. It is clear from internal DCMS emails that Mr Hunt wanted to publish as much as he could, although in the result it was not practicable to publish the carriage and brand licence agreements for reasons of commercial confidence. Mr Hunts Principal Private Secretary recorded in an email dated 27 June 2011 that:309 SoS said he would like to press ahead with statement on BskyB on Thursday. SoS said he would like to publish all docs (inc brand licensing and carriage agreements even if redacted) and would like to press News Corp for those docs this week. We discussed having a quick handling meeting this afternoon to discuss draft statement etc...
Provisional acceptance of the amended draft UIL and further consultation

5.62 The Written Ministerial Statement was made on 30 June 2011. It communicated Mr Hunts decision which was that he was minded to accept the revised UIL, and he was satisfied with the carriage and brand licensing agreements as amended. He announced a further and rapid consultation, allowing seven days for further views on the revised UIL.310 The statement was very carefully crafted to emphasise not only that he had engaged both Ofcom and the OFT to a greater extent than he was obliged to, but also to make clear that he could have accepted the original UIL and was exercising his discretion to require more of News Corp. It began:311 I am today publishing the results of the consultation on the undertakings in lieu I launched on 3 March alongside the subsequent advice I have received from Ofcom and the OFT. The consultation did not produce any information which has caused Ofcom and the OFT to change their earlier advice to me. I could have decided to accept the original undertakings. However a number of constructive changes have been suggested, and as a result, I am today publishing a revised, more robust set of undertakings and will be consulting on them until midday Friday 8 July.
308 309
p171, ibid p174, ibid 310 p262, ibid 311 p259, ibid
1368
As previously, I was not required to involve independent regulators in assessing the revised undertakings. However I have again done so, and sought their independent advice. I am today also publishing that advice, which after careful consideration I have decided to accept. 5.63 In addition to the advice, Mr Hunt published the proposed Articles of Association for Newco, the revised UIL and a summary of the responses to the consultation.312 The Ministerial Statement explained the process and the developments which had taken place in consequence of the consultation responses, including all of the changes which he was now minded to accept. It then went on to deal with a number of issues which had often been raised in the responses to the first consultation including the emerging phone hacking allegations against the News of the World. At this stage, Mr Hunt unequivocally adopted the stance that the allegations were immaterial. There was no mention of their potential relevance to the reliability of the undertakings. The material part of the statement explained why Mr Hunt was then of the view that the allegations should not influence his decision:313 Some respondents also argued that News Corp could not be relied upon to abide by the requirements set out in the undertakings, citing previous guarantees and assurances given by News in the past, and the current hacking allegations against the News of the World. I have taken the view that News have offered serious undertakings and discussed them in good faith. In all the circumstances and given that the implementation of those undertakings will be overseen by the Monitoring Trustee and thereafter monitored and if necessary enforced by the OFT, I believe that there are sufficient safeguards to ensure compliance with the undertakings. Furthermore, the various agreements entered into pursuant to the undertakings will each be enforceable contracts. Therefore whilst the phone hacking allegations are very serious they were not material to my consideration. 5.64 Mr Hunt regarded the substantive protections afforded by the revised UIL to be very considerable, describing them in these terms:314 So it was a further strengthening of these UILs in a way that made Sky News massively more independent of James Murdoch than it was then or indeed is now. 5.65 The statement concluded, as it had started, in terms designed to engender trust and confidence in the process:315 I am committed to maintaining the free and independent press for which this country is famous. I have sought and published independent advice throughout this process. I have listened carefully to points made in the consultation and amended the undertakings where appropriate. I have also gone for maximum transparency whilst taking reasonable account of commercial confidentiality considerations. I continue
pp178-231, 232-256, ibid; pp4-57, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/04/KRM17-Document-121.pdf; pp117-145, Jeremy Hunt, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/05/Exhibit-JH3-MOD300004949-MOD300005263-docs-105-163.pdf 313 p261, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH3-MOD300004949MOD300005263-docs-105-163.pdf 314 p80, lines 4-6, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf. Note that James Murdoch has subsequently stepped down as Chairman of BSkyB, resigning on 3 April 2012 three days after Mr Hunt gave this evidence 315 p261, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH3-MOD300004949MOD300005263-docs-105-163.pdf
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to believe that, if I allow this deal to proceed, Sky News will be able to continue its high-quality output and in fact will have greater protections for its operational and editorial independence than those that exist today.
The phone hacking scandal and the withdrawal of the bid

5.66 By this stage, it looked as if the deal was close to being approved. That state of affairs was to change very rapidly. The consultation, which lasted until midday on Friday 8 July 2011, took place during a tumultuous week for News International. The phone hacking scandal came to a head and, on Thursday 7 July 2011, James Murdoch announced that the NoTW was to close. There was, once more, an enormous response to the consultation, as Mr Hunt confirmed in his evidence:316 Q. And you received in that short period of time 156,000 responses. Virtually all were, again, anti, werent they? A. Yes. 5.67 On the day that the consultation closed, a post on the DCMS website made clear that the Secretary of State would now also be considering the impact of the closure of the NoTW on media plurality. On this point it read:317 The Secretary of State will consider carefully all the responses submitted and take advice from Ofcom and the Office of Fair Trading before reaching his decision. Given the volume of responses, we anticipate that this will take some time. He will consider all relevant factors including whether the announcement regarding the News of the Worlds closure has any impact on the question of media plurality. (emphasis added) 5.68 On the following Monday, Mr Hunt sought the advice of both Ofcom and the OFT on the developments. He asked the OFT whether any of the past weeks revelations caused it to reconsider any of its previous advice:318 However, given the well-publicised matters involving the News of the World in the past week, and which have led to the closure of the paper, I should be grateful if you could let me know whether you consider those revelations and allegations cause you to reconsider any part of your previous advice to me, or otherwise gives rise to concerns, on the credibility, sustainability and practicalities of the undertakings offered by News Corporation.
5.69
In particular, Ofcom was asked whether the events that followed its letter of 22 June 2011 changed in any way the advice it had offered as regards three areas:319 The closure of the News of the World in the last week is a significant change to the media landscape. I would be grateful if you could indicate whether this development (and/or the events surrounding it) gives you any additional concerns in respect of plurality over and above those raised in your initial report to me on this matter received on 31 December 2010.
p82, lines 14-17, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf 317 p284, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH3-MOD300004949MOD300005263-docs-105-163.pdf 318 p285, ibid 319 pp286-287, ibid
316
1370
I am aware of your letter on Friday to John Whittingdale MP in relation to any proposed fit and proper persons test and would be grateful if you could keep me informed of progress. In particular I would be grateful if you could clarify whether in your view, your current consideration or any potential future decision in relation to the fit and proper persons test might have an impact on the merger and my decision on media plurality or on the proposed undertakings in lieu. Given the well-publicised matters involving the News of the World in the past week that led to its closure, I would be grateful if you could let me know whether you consider that any new information that has come to light causes you to reconsider any part of your previous advice to me including your confidence in the credibility, sustainability or practicalities of the undertakings offered by News Corporation. 5.70 Mr Hunt impressed upon the Inquiry the gravity of the watershed moment which had led him to write to Ofcom and OFT, describing it in these terms:320 Then we had the horrific Milly Dowler revelations on 4 July, which I dont think anyone could not have been touched by, and then a couple of days later News Corporation announced that they were closing the News of the World. That, for me, was a very, very significant moment because then I began to wonder whether there could be a management issue that spread beyond News International to News Corp, and even if it wasnt an issue of trust, even if I accepted that the people that we were negotiating the UILs with, were doing so in good faith, I asked myself, if they found it necessary to close down a whole newspaper this is a big, big deal for a company like News Corporation is there a corporate governance issue here? Is this a company that actually doesnt have control of whats going on in its own company, even if the management dont know about whats happening? So it was really that and, of course, the fact that there was a plurality issue with a big newspaper being closed down and the fact that Ofcom had been asked to investigate whether BSkyB was a fit and proper licence holder for a broadcasting licence, those came together. So a week after the Milly Dowler revelations I wrote to both Ofcom and the OFT to ask them whether they still stood by the advice theyd given me at the end of June that plurality considerations had been addressed by the UILs as they did then. 5.71 Faced with a crisis, James Murdoch decided to withdraw the UIL with the inevitable result that Mr Hunt decided to refer the proposed transaction to the Competition Commission. Mr Murdoch explained his decision in a letter to Mr Hunt later on 11 July 2011:321 ...we have listened and considered public sensitivity, political concern and the requests for an independent Competition Commission review. In these circumstances I have taken a decision to withdraw the undertakings. This will allow the matter to be considered by the Competition Commission on an objective and fair basis taking into account factors and evidence which are relevant to the only applicable legal test of sufficiency of media plurality.
pp85-86, lines 1-12, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf 321 p283, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH3-MOD300004949MOD300005263-docs-105-163.pdf
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News Corporation continues to believe that properly taking into account those factors its proposed acquisition will not lead to there being insufficient plurality in news provision in the UK. 5.72 Mr Hunt announced his decision to refer the proposed merger to the Competition Commission in Parliament on the afternoon of 11 July 2011. The terms in which he expressed himself reflected the dramatic change in atmosphere which the previous weeks events had wrought:322 ...As a result of News Corporations announcement this afternoon I am going to refer this to the Competition Commission with immediate effect and will be writing to them this afternoon. Todays announcement will be an outcome that I am sure the whole house will welcome. It will mean that the Competition Commission will be able to give further full and exhaustive consideration of this merger taking into account all relevant recent developments. Mr Speaker, protecting our tradition of a strong, free and independent media is the most sacred responsibility I have as Culture Secretary. Irresponsible, illegal and callous behaviour damages that freedom by weakening public support for the self-regulation upon which it has thrived. By dealing decisively with the abuses of power we have seen, hopefully on a cross-party basis, this government intends to strengthen and not diminish press freedom, making this country once again proud and not ashamed of the journalism that so shapes our democracy. 5.73 Avaaz sought to seize the moment to press the case for the Secretary of State to issue a new EIN widened in scope to include not only plurality but also commitment to broadcasting standards. The group did so on 12 July 2011 by sending DCMS a Note, produced by counsel expert in merger and competition law, which challenged the view that s67(5) of the Enterprise Act 2002 prevented the Secretary of State from widening the scope of the intervention. Counsel concluded:323 Although I cannot claim that the position is certain, I can say that in my view, given the factual context set out above, any attempt by News Corporation to challenge a decision by the Secretary of State to issue a further Notice allowing him and the CC to consider fitness would be more likely than not to fail, notwithstanding section 67(5) of the EA02.
... I should make it clear that I am not saying that the Secretary of State is bound now to issue a replacement Notice allowing fitness to be examined as a public interest consideration. His discretion is a wide one. However, in the present circumstances, the view that he definitely cannot lawfully do so seems to me to be far too cautious. 5.74 In the result, that legal argument did not need to be resolved because although the transaction was formally referred to the Competition Commission on 13 July, News Corp subsequently withdrew its bid and, on 25 July 2011, the reference was cancelled by the Competition Commission.324
322 323
p282, ibid pp292-298, ibid 324 pp304-311, ibid. The reference was cancelled in accordance with the provisions of article 7(1) of the 2003 Order
1372
5.75
The speed at which a proposed transaction such as News Corps bid for BSkyB is considered may itself be commercially sensitive (in this case there can be no doubt that, for News Corp, it was the sooner the better). From the point of view of the public interest there will also generally be a need to deal with this sort of decision promptly because it would not be in the public interest for regulatory delay to thwart a deal deserving of approval. However, that need for promptness in the public interest will always be qualified by the public interest in ensuring that the proposed transaction is considered sufficiently to ensure that the right decision is made. In this case the speed at which the bid was actually considered was consistent with the public interest. Mr Hunt described himself as wanting to do things briskly but properly.325 He certainly sought to avoid unnecessary delay but when time was needed fully to consider, take advice about, and to consult upon the UIL, it was afforded.
Lobbying behind the scenes

5.76 In addition to the considerable volume of responses which were the product of the Secretary of States specific invitations to interested parties to make submissions, there was a remarkable amount of additional unsolicited communication. Some of this came from the Alliance, whose solicitors and public relations advisers actively sought to influence the Secretary of State through correspondence. These contacts though paled in comparison to the voluminous behind the scenes contact between Mr Michel and people at the DCMS. In particular, Mr Michel had a great deal of email, text and telephone contact with Adam Smith. It is now well known that the publication of Rupert Murdochs exhibit KRM18, which evidenced some of this contact, led very quickly to Mr Smiths resignation. It is therefore now necessary to consider the nature and extent of unsolicited and behind the scenes lobbying whilst the bid was Mr Hunts responsibility. The Alliance 5.77 Like News Corp, the Alliance had begun to lobby DCMS before the transfer of the bid. Emails in the period 8 to 10 December 2010 show that there was a meal attended by representatives of DCMS and Weber Shandwick, after which the latter offered and the former accepted a briefing on the plurality issue.326 The DCMS official made clear (as was the case at that stage) that DCMS had no formal role but Weber Shandwick was still keen to get its clients message across: ...I know you have no formal role but good for you to hear our case and why we think there is a change.327 On 26 December 2010, the bid then having been transferred to Mr Hunt, Weber Shandwick copied Slaughter and Mays submission to Ofcom to DCMS.328 The next day the firm sent the results of a poll conducted by the Alliance to a DCMS official.329 DCMS wisely cancelled the planned briefing but Weber Shandwick thereafter remained in email contact with DCMS. Of the briefing an in-house legal adviser wrote: ...I dont think the presentation was, in any
5.78
p104, line 21, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf 326 pp1-2, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH8.pdf 327 pp1-2, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH7-MOD300007701MOD300007725-docs-379-391.pdf 328 p89, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH1-MOD300004241MOD300004682-docs-1-52.pdf 329 pp119-122, ibid
325
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event, to Jeremy, but given recent events, I think that we ought to distance from any remote suggestion of influence by any interested party.330 5.79 When reports emerged that News Corp was discussing remedies with the Secretary of State, Weber Shandwick was quick to ask for a meeting which was declined.331 The firm also sought early sight of Ofcoms report which it was not granted on the ground that the Secretary of State would publish the report, in redacted form, in due course.332 Weber Shandwick later forwarded copies of letters from Slaughter and May dated 12 and 20 January 2011 (discussed further below) but did not add substantively to them.333 Slaughter and May also wrote directly to the Secretary of State on a number of occasions, typically following reports in the media about the progress of the bid. On 12 January 2011, the firm wrote after reports in the (FT) that discussions about UIL had commenced. UIL had in fact only been mentioned at the meeting between Mr Hunt and James Murdoch on 6 January 2011 as something which News Corp wanted to discuss if their primary submission that Mr Hunt should not refer the bid failed. The first draft UIL had not yet been submitted to the Secretary of State. Slaughter and May pointed to the low threshold for a reference to the Competition Commission, arguing that remedies should not be considered before a referral, and seeking further information. TSol replied on behalf of the Secretary of State with a letter which, amongst other things, gently made clear that, if and when the time came for the Alliance to make submissions, then they would be sought.334 At that stage, Mr Hunt was, in any event, minded to refer the bid and had not yet formed even a provisional view about the UIL. He was not then obliged to hear submissions from the Alliance. Indeed, on the question of referral they would have been otiose and on UIL premature. When later, after taking advice from Ofcom and the OFT, the Secretary of State became minded instead to accept the UIL, he launched a consultation (to which the Alliance was able to and did respond). Slaughter and May was not content to wait. On 20 January 2011 the firm made further unsolicited submissions, this time following publication by the (FT) of news that News Corp had offered to divest Sky News. It argued that it would be difficult to achieve an effective remedy without wholesale divestment of BSkyB and pressed again for a reference to the Competition Commission.335 When the Secretary of State announced that he was asking the OFT and Ofcom to advise him on News Corps proposed UIL, and would go out to public consultation if he provisionally decided to accept the same, Slaughter and May wrote to him seeking to be involved at an earlier stage. On 27 January 2011 they wrote, inter alia:336 You only propose to go out to public consultation however, after you have provisionally decided (in the light of the advice from OFT and Ofcom) to accept such undertakings.
p3, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH8.pdf pp6-7, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH7-MOD300007701MOD300007725-docs-379-391.pdf 332 p8, ibid 333 pp10-16, ibid 334 p350, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH1-MOD300004241MOD300004682-docs-1-52.pdf 335 pp15-16, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH7MOD300007701-MOD300007725-docs-379-391.pdf 336 p441, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH1-MOD300004241MOD300004682-docs-1-52.pdf
331 330
5.80
5.81
5.82
5.83
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In order to ensure that the overall process is both fair and thorough, it will therefore be critical for Ofcom / OFT and the Secretary of State to consult with key industry players (including the Concerned Parties) ahead of the provisional decision. 5.84 The Alliance did not get the early involvement that it was seeking and so Slaughter and May wrote again, on 9 February 2011, making a veiled threat to judicially review the Secretary of State. It persisted with the argument for early involvement:337 We understand that the process you envisage would require Ofcom (working with OFT) to assess undertakings in lieu of reference to the Competition Commission (the CC) without the involvement of interested third parties. Third parties would instead only be consulted after Ofcom / OFT have reported to you and after you have concluded that you are minded to accept such undertakings. It is our view that this process would be unfair and would fail to meet the normal procedural standards of merger control and public law more generally. ... If your decision is to meet public law requirements of fairness, it is essential that interested third parties are properly consulted before Ofcom / OFT report to you and before you propose to accept undertakings. ... In the absence of the above safeguards, the review will be procedurally unsound. 5.85 TSol replied on behalf of the Secretary of State on 11 February 2011 refuting the allegations of unfairness and repeating the point, more bluntly this time, that the Alliance would have an opportunity to make submissions at an appropriate time if the need arose. The letter concluded:338 Proper and, as you put it, meaningful consultation does not require multiple iterations of comment throughout a decision making process such as this one. The important point is that you and your clients are given an opportunity properly to comment on any proposal to accept undertakings in lieu of a reference. You will have that opportunity. Finally, I cannot but emphasise that if, and I stress if, the Secretary of State does reach a view that he proposes to accept undertakings in lieu of a reference, he will carefully consider any observations you and your clients may have about those proposed undertakings. 5.86 Slaughter and May nevertheless continued with its effort to get the Alliance more deeply involved at an earlier stage, writing again on 1 March 2011, this time following another article in the (FT) which had been published on 24 February 2011 on the subject of the proposed UIL. It sought an outline of the key features of any remedy proposals made by News Corp; the opportunity for the Alliance to discuss the proposals with OFT and Ofcom prior to them advising the Secretary of State; and the opportunity to discuss the remedy proposals with the Secretary of State prior to any provisional decision or substantive announcement which he may make on the issue.339 The firms repeated representations about process were then overtaken by events when the Secretary of State reached the provisional view that he was
pp3-6, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH2-MOD300004683MOD300004948-docs-53-104-and-MOD3000013794-MOD3000013796-doc-598.pdf 338 pp71-72, ibid 339 pp118-119, ibid
337
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minded to accept UIL from News Corp and consequently initiated a statutory consultation. As has already been recited above, Slaughter and May submitted lengthy and detailed submissions as part of that process and subsequently attended the Secretary of States meeting with Alliance members on 24 March 2011. 5.87 In March 2011 Weber Shandwick was involved in arrangements for the Secretary of States meeting with the Alliance.340 The firm itself was at the last minute asked not to attend that meeting with the result that News Corp had an internal public affairs officer in attendance when James Murdoch met the Secretary of State, but the Alliance was prevented from having an equivalent, albeit external, adviser present. Finally, there was a brief email exchange between Weber Shandwick and DCMS in which the former sought information and asked whether their further input was needed. The firm received a brief and entirely proper response.341 A number of observations flow from a consideration of the Alliances unsolicited communications. First, there was a qualitative difference between its lobbying efforts and those of News Corp in that it was, essentially, conducted through emails to officials and formal correspondence. The approach to lobbying by News Corp extended well beyond that and, at least in part, took the form of Mr Michels indefatigable use of text messaging, email and the telephone. Second, the financial stakes associated with the proposed transaction, and the passions which it aroused, caused the Alliance, through its solicitors, to push as hard as it could to be heard throughout the process. It is almost inevitable that exactly the same will happen when the next major qualifying media transaction falls to be considered under the Enterprise Act 2002. Third, the veiled threat of judicial review from the Alliance, when combined with the equally threatening correspondence from News Corps lawyers, amply demonstrates the need for a process which is both robustly and manifestly fair to all parties if it is neither to be impugned in court nor impossibly slow. These three observations all point to the desirability of detailed procedural guidance being available for a Secretary of State responsible for administering quasi-judicial decisions under the Enterprise Act 2002 and for a fair yet workable procedure to be established and followed throughout. That need is made all the more clear after a consideration of the lobbying undertaken by Mr Michel. Frdric Michels contact with Jeremy Hunt 5.93 On Christmas Eve, some three days after responsibility for the bid had been transferred to Mr Hunt, Mr Michel sought to lay the ground to make use of the channel of communication which he had previously established with the Secretary of State. With characteristically friendly (even intimate) and informal tone, he texted:342 Hi. James has asked me to be the point of contact with you and Adam throughout the process on his behalf. Glad Jon Zeff is in charge of dossier. Have a great Christmas with baby! Speak soon. Fred
pp17-22, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH7MOD300007701-MOD300007725-docs-379-391.pdf 341 p25, ibid 342 p54, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM81.pdf
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Mr Hunt immediately appreciated that, as the decision maker, he was now in a very different position and properly informed Mr Michel that all contact from then onwards needed to be through official channels until the decision had been made:343 Thanks Fred. All contact with me now needs to be through official channels until decision made. Hope Daddy has a lovely Xmas. Jeremy
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Mr Michel held back, but only for a short while. He cautiously resumed communication by text on 20 January 2011 following the second of the two formal meetings about the bid to which he had accompanied James Murdoch. He was careful not to mention the bid, but sent:344 Great to see you today. We should get [names redacted] together in the future to socialise! Nearly born the same place! Warm regards. Fred
5.96
Mr Hunts brief reply implicitly made clear that any socialising with Mr Michel would have to await resolution of the bid but in terms which made slight reference to the bid:345 Good to see u too. Hope u understand why we have to have the long process. Lets meet up when things are resolved J
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Mr Michel picked up on that slight reference in a response which he augmented with flattery:346 We do and will do out very best to be constructive and helpful throughout. You were very impressive yesterday. And yes lets meet up when its all done. Warmest regards fred
5.98
Mr Michel did not text Mr Hunt again until 3 March 2011, the day on which Mr Hunt announced to Parliament that he was minded to accept News Corps UIL, when he again resorted to flattery:347 You were great at the Commons today. Hope all well. Warm regards, Fred
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That text led to two more within a few minutes of the first. Mr Hunt replied briefly: Merci large drink tonight! Mr Michel concluded the exchange on a similarly friendly note: Me too! Taking wife out for dinner!348
5.100 There were two more exchanges during the currency of the bid. First, on 13 March 2011, Mr Michel praised Mr Hunts performance in an interview: Very good on Marr. As always! Fred. Mr Hunts reply amounted to a polite reminder of the bid and consequent need for some distance: Merci hopefully when consultation over we can have a coffee like the old days!349 5.101 Second, on 3 July, Mr Michel sent a text to propose a social engagement: Come on Nadal!! We should get together to celebrate the one year baby birthdays! Hope all well. Warm regards, Fred. Mr Hunt replied in friendly terms but once again he put off Mr Michel whilst the bid
p54, ibid. There was a further inconsequential text from Mr Michel to Mr Hunt later that evening: You too mon ami! Fred, p56, ibid 344 p57, ibid 345 p58, ibid 346 p59, ibid 347 p60, ibid 348 pp61-61, ibid 349 pp63-64, ibid
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was in progress: Agree he MUST win! Lets do that when all over.350 During his oral evidence Mr Hunt candidly reflected on Mr Michels 3 July 2011 text, stating:351 I think its incredible ingenuity. I mean he was just looking for any opportunity he could try and establish contact of some sort or another. You know, it was pushy. You know, I responded briefly, courteously, and in a friendly way as well. What I didnt deduce from this, and I think you alluded to in earlier comments, was the effect of this kind of contact multiplied many, many times over to Adam Smith. And that was the crucial thing right at the beginning of the process that we didnt foresee, the fact that there was going to be such a volume of correspondence, ... (emphasis added) 5.102 It is conspicuous that all of the exchanges during this period were initiated by Mr Michel. All were brief. The bid was barely touched upon and there was no substantive communication either about the substance of the bid or the process. It was all about making the connection at the personal level. Mr Hunt was careful to put off any social arrangements until after the bid. His responses were consistent with the general approach which he took to those in the media industry with whom he came into contact during the bid. In evidence, he explained:352 ...what Im really saying in paragraph 37 is that because of my other duties as Secretary of State, I was going to be bumping into people who had views on the bid. I think during that period I spoke at the Oxford Media Convention where the whole media world would be gathered and I gave a speech and answered questions and there would have been coffee afterwards, and so there would have been but they were brief interactions, and I interpreted that to mean there might be a casual comment about the bid, but they werent part of my consultation process. and later he said:353 All the interactions which related to the decision that I was going to take would be through official channels, but as I explained there, if I bumped into someone in a lift or gave a courteous reply to a text message, I didnt think that was off limits. 5.103 It would have been prudent for Mr Hunt politely to have insisted that Mr Michel should not seek to communicate (whether by text or otherwise) until after the bid had been resolved, thus enforcing the wish which he expressed at the outset on 24 December 2010. Doing so would have prevented any suggestion of the appearance of bias arising from the contact which in fact occurred. The direct contact between Mr Hunt and Mr Michel which did occur was not entirely satisfactory but, having said that, I should make it clear that I do not consider that, on its own, it would have been sufficient to impugn the process had it been the subject of judicial review.
pp66-67, ibid pp22-23, lines 16-11, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-31-May-2012.pdf 352 p51, lines 10-21, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf 353 p56, ibid
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James Murdoch and Jeremy Hunt 5.104 Mr Hunt also exchanged text messages with James Murdoch during the period in which he was responsible for the plurality decision. On the evening of 3 March 2011, the day on which Mr Hunt announced that he was minded to accept the UIL and launched the first statutory consultation about them, James Murdoch sent a text in appreciation: Big few days. Well played. JRM. Mr Hunt replied: Thanks think we got right solution! He followed that the next day with a text which had nothing to do with the bid but was connected to the sporting element of his portfolio: Just been with the Team GB cycling team in Manchester who are most impressed with the personal interest you show in their performance!354 5.105 There was then an exchange of messages on 31 March, initiated by Mr Hunt who wished to congratulate Mr Murdoch upon his promotion. The Secretary of States message joked about Mr Murdochs relationship with Ofcom: Many congratulations on the promotion although I am sure u will really miss Ofcom in NY! Jeremy. The reply recognised that there were constraints on contact whilst the fate of the bid remained unresolved: Thanks Jeremy sadly I fear they wont see the back of me that easily! Hopefully we can move our other business forward soon so we can catch up properly. Best.355 5.106 Mr Hunt was clear that his reference to Ofcom was tongue in cheek and that it had no impact on the process. However, if faced with the same situation again, he said that he would just avoid all text messages:356 Q. Were you at all uncomfortable communicating with Mr James Murdoch in this way? A. Well, I think, you know, as we look at the whole way quasi-judicial processes are run and as we look at the lessons that we learned from what happened between Adam Smith and Mr Michel, I think there are probably things we would learn, and my interpretation of my quasi-judicial role was that a courteous reply to a text message was fine. I think probably now I wouldnt take the same view, and I would just avoid all text messages, but that was my assessment, that it had absolutely no impact on the process. It was not material to the decision I took, and it was just me being courteous. (emphasis added) Jeremy Hunt and Andy Coulson 5.107 On the advice of Sue Beeby, his SpAd who dealt predominantly with media relations, Mr Hunt drew the line at meeting Andy Coulson whilst a decision about the bid was pending. He had been intending to have a drink with Mr Coulson and Ms Beeby advised by email. Referring to News Corp, she wrote: Hes so closely linked to them that if you were seen it wouldnt look great. Mr Hunt thought that advice was absolutely right and that it was wiser to wait.357 This approach was in keeping with his decisions not to meet Mr Michel or Mr Murdoch socially whilst he was responsible for the decision about the bid.
p9, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH16-MOD300008147MOD300008166-docs581-596.pdf 355 p9, ibid 356 pp35-46, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-AfternoonHearing-31-May-2012.pdf 357 pp31-32, ibid
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Frdric Michel and Adam Smith 5.108 In his dealings with Adam Smith, Mr Michel found a more communicative target for his lobbying endeavours. The type and volume of their communications during the currency of the bid is, of itself, striking and well illustrates just how deftly Mr Michel managed to inveigle his way to a source so close to the Secretary of State. There were numerous emails, many telephone calls and, most of all, a prolific number of text messages. No fewer than 690 text messages passing between Mr Michel and Mr Smith were found on the image of Mr Michels iPhone covering the period 27 August 2010 to 11 July 2011, the majority sent by Mr Michel.358 All but three of these messages post dated the transfer of the bid to Mr Hunt, the manifestation of a step change in the attention which Mr Michel paid to Mr Smith once regulation of the bid rested in Mr Hunts hands.359 The evidence from Mr Michels iPhone was but one piece in the jigsaw of evidence which, when put together and analysed led to the following overall statistics being put to Mr Michel in evidence and with which he did not take issue:360 Can I move on now to your communications with Mr Adam Smith. Would you agree that there was a pattern of very frequent text messages, telephone calls and emails with Mr Smith, which certainly increased from December 2010? A. Yes. Q. Overall, over the period June 2010 to July 2011, we have counted the following: 191 telephone calls, 158 emails, 799 texts, of which over 90 per cent were exchanged with Mr Smith. Does that feel about right? A. I didnt know the quantum, but I trust your counting. Q. Over the period 28 November 2010 to 11 July 2011, we have counted 257 text messages sent by Mr Smith to you, and given that you were more prolific in your texts to him than he was to you, there would be more than that which you sent. Would you agree? A. I would. 5.109 The content of these communications was further evidenced by Mr Michels numerous emails to his colleagues within News Corp, often including James Murdoch, reporting on his activities and exhibited by Rupert Murdoch as KRM18. Publication by the Inquiry of KRM18 began to bring the full extent of the contact between Mr Michel and Mr Smith into the public domain. On the basis of that evidence, Mr Hunts Permanent Secretary, Jonathan Stephens, described how he quickly assessed the communications to have been unacceptable:361
I
358 359
...The first suggestion that the contacts went beyond what was proper was 24th April 2012 with the release of emails from Frederic Michel (and this was the first occasion I recall mention of Michel by name). The following morning I told the Secretary of State
pp4-690, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM91.pdf Mr Smiths records (from his telephone bill http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/AS4. pdf) showed 19 messages to Mr Michel in the period 28 November 2010 27 December 2010 which are not found on the image of Mr Michels iPhone indicating that some messages might have been deleted from that phone. Too much weight should not therefore be attached to the precise statistic but the overall pattern evident in the records does show a step change in contact after 21 December 2010 360 pp44-45, lines 12-3, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcriptof-Morning-Hearing-24-May-2012.pdf 361 p8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-statement-of-Jonathan-Stephens3. pdf
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I thought the number, extent, depth and tone of contacts suggested by those e-mails went beyond what was acceptable. 5.110 After time for reflection and after both Mr Michel and Mr Smith had given their oral evidence to the Inquiry, Mr Stephens remained of the same view, saying:362 The first thing I thing I would say is that I have to be clear that I think, as Ive said, the extent, the number, the nature of these contacts was, in my judgment, clearly inappropriate and not just in one or two disputed cases. I think thats a judgment I just have to place on record. 5.111 I agree with that assessment. In doing so I have taken into account that there was a often a degree of hyperbole and inaccuracy in Mr Michels email reports of his exchanges with Mr Smith with which Mr Smith rightly and unsurprisingly took issue. I recognise that the majority of the contact was initiated by Mr Michel, not Mr Smith, and that some of the individual communications were innocuous, concerning either anodyne matters of process or being mere repetition of what News Corp had already been told formally. I also recognise that Mr Smith had held himself out as being a point of contact for News Corp. But none of that escapes the fact that Mr Michel and Mr Smith engaged in a very considerable volume of private communication about the bid, much of which was clearly inappropriate for reasons which are examined further below. 5.112 Before turning to the detail of the exchanges in the period after the bid was transferred to Mr Hunt, it is instructive first to examine the status of SpAds, the rules which applied to Mr Smith, his working relationship with Mr Hunt, and how he was managed, supervised, instructed and guided. 5.113 SpAds are temporary civil servants appointed under Article 3 of the Civil Service Order in Council 1995. They are unique amongst civil servants because they are exempt from the general requirement that civil servants should be appointed on merit and behave with impartiality and objectivity so that may retain the confidence of future Governments of a different political complexion. Indeed, they are political appointees, appointed by Ministers with the approval of the Prime Minister. The amalgamation of civil servant and political partisan into the same post makes for a hybrid position.363 A SpAds appointment ends at the end of the administration which appointed him (or her) or when the appointing Minister leaves the Government or moves to another appointment.364 The Code of Conduct for Special Advisers (the Code) explains the nature of the role of a Special Adviser, in the following terms:365 Special advisers are employed to help Ministers on matters where the work of Government and the work of the Government Party overlap and where it would be inappropriate for the permanent civil servants to become involved. They are an additional resource for the Minister providing assistance from a standpoint that is more politically committed and politically aware than would be available to a Minister from the permanent Civil Service.
pp58-59, lines 23-3, Jonathan Stephens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/ Transcript-of-Afternoon-Hearing-25-May-2012.pdf 363 p62, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-AfternoonHearing-24-May-2012.pdf 364 Para 4, Code of Conduct for Special Advisers, pp12-18, at p13, Adam Smith, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/05/AS2.pdf 365 p12, ibid
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5.114 Paragraph 3 of the Code lists and describes types of work which a Special Adviser can be expected to undertake. There is no mention of assisting a Minister acting in a quasi judicial capacity.366 5.115 The Code makes clear that management and conduct of SpAds, including discipline, rests with the appointing Minister, subject to the overriding power of the Prime Minister to terminate the employment of a SpAd by withdrawing his consent to their appointment. The material part of paragraph 4 of the Code reads:367 ...The responsibility for the management and conduct of special advisers, including discipline, rests with the Minister who made the appointment. It is, of course, also open to the Prime Minister to terminate employment by withdrawing his consent to an individual appointment. 5.116 The appointing Ministers responsibility for the management and conduct of a SpAd is repeated at paragraph 3.3 of the Ministerial Code which also describes the accountability of Ministers for their actions and decisions in respect of their SpAds:368 The responsibility for the management and conduct of special advisers, including discipline, rests with the Minister who made the appointment. Individual Ministers will be accountable to the Prime Minister, Parliament and the public for their actions and decisions in respect of their special advisers. 5.117 The Code imposes a duty of confidence upon SpAds in these terms:369 ...Special advisers should not, without authority, disclose official information which has been communicated in confidence in Government or received in confidence from others... 5.118 Mr Stephens had, amongst his many duties, an advisory role as: ...the principal adviser to the Secretary of State across the range of his functions, including on all decisions, matters of policy or questions of conduct.370 He was accountable to the Secretary of State: ...for the effective discharge by the Department of all its functions in support of the Government and its objectives.371 As he put himself put it: I am accountable for all the advice and ultimately what goes on within the department, as I set out in my statement.372 He thus had, in that respect, overall responsibility for the handling of the bid and he oversaw the process. His advisory role to his Minister in relation to all decisions and questions of conduct was wide enough in principle to encompass advice to Mr Hunt as to the use to which Mr Smith was put in relation to the bid and how he discharged that role. It was advisory only, of course; the decisions about the deployment and management of the SpAd were for Mr Hunt. 5.119 Pursuant to his advisory role, it had been Mr Stephens who drew to the attention of Mr Hunt and Mr Smith not only the Code of Conduct for Special Advisers but also the Ministerial Code
p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Adam-Smith.pdf p13, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/AS2.pdf 368 p11, Adam Smith, ibid 369 para 5 of the Code, p13, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/AS2.pdf 370 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-statement-of-Jonathan-Stephens3. pdf 371 p1, ibid 372 p8, lines 1-3, Jonathan Stephens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-25-May-2012.pdf
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and the Civil Service Code when Mr Hunt took office and Mr Smith was appointed. Mr Stephens saw it as his role to provide advice in relation to these codes in case of uncertainty, stating:373 These Codes are drawn to the attention of Ministers on appointment by the Cabinet Secretary. I write to Special Advisers on their appointment to draw their attention to the Code of Conduct of Special Advisers I wrote to Adam Smith on 14 May 2010 (this letter is attached). I also brief both Ministers and Special Advisers on the importance of abiding by these Codes and my availability to provide advice in any uncertainty. It is also my practice to explain to Special Advisers that, in all external dealings, they will be seen as representing their Department and Minister. 5.120 Mr Smith was one of two SpAds who worked for Mr Hunt. He concentrated on policy development whilst the other SpAd, Sue Beeby (after October 2011, Lisa Hunter) dealt primarily with media relations.374 Mr Smith knew Mr Hunt very well and vice versa. He had worked for him since 2006 as his Parliamentary Researcher and then Chief of Staff, before becoming a SpAd when Mr Hunt was appointed as Secretary of State after the May 2010 General Election. In Mr Smiths words:375 ...we developed a very close working relationship. He came to know my approach to matters and my style, which is generally relaxed, courteous and seemingly accommodating. 5.121 Mr Hunts evidence was unequivocally to the same effect. He was sure that Mr Smith would have known what he thought on different issues:376 ...I doubt theres a minister who worked more closely with a special adviser than I worked with Adam Smith, I really did work very closely with him for best part of six years, I think it was a given that he would know what I thought on different issues. I dont think thats quite the same as speaking for me, which is a different thing, but I think people would have expected him to know my views. 5.122 Geographically, at DCMS, the SpAds office was on the same floor as the Ministers.377 Mr Smith described a high level of professional contact with Mr Hunt but a lesser degree of contact with him about News Corps bid for the remaining shares in BSkyB:378 Mr Hunt and I saw each other almost every working day and we spoke frequently on the telephone. Over the years, I considered that I developed a close professional relationship with Mr Hunt. He was familiar with my approach and style. The regular meetings, to which I refer above, and our more informal, regular, contact provided him with opportunities to obtain updates from me in relation to the projects with which he had asked me to become involved and I would provide updates, as I mention above, either at our meetings, by telephone or more informally at the office. We did not socialise together that often we only went for drinks on a handful of occasions,
373
p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-statement-of-Jonathan-Stephens3. pdf 374 p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Adam-Smith.pdf 375 p3, ibid 376 pp55-56, lines 24-7, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf 377 p65, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-AfternoonHearing-24-May-2012.pdf 378 pp11-12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Adam-Smith.pdf
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in the time that we worked together, although I did attend his wedding along with a couple of other staff at the time. and in relation specifically to the bid:379 Not as frequent as it as you might have thought, I suppose. I mean there was [sic] the meetings which Ive listed there, but I would I wouldnt go and speak to him about it on anything like a sort of daily basis or even it would only be if he was preparing for a major statement or if there were the odd occasions where an issue that I judged to be of significant interest to him, that I would go and speak to him about it, but he the whole point of having the department, the officials and myself, I suppose, was so that we could kind of carry on which the work and not need to go running to him every day. 5.123 Mr Smith understood his role in practice to require three things of him: ...to be [Mr Hunts] eyes and ears inside and outside of the Department; to act as an early warning system on issues of importance; and to be a buffer between him, other Ministers, officials and outside organisations so that he could focus on his work.380 The third of these capacities is important in understanding the role which Mr Smith believed himself to be playing in his interactions with Mr Michel. In relation to the bid he described his role as: To be one of the points of contact for News Corporation. To act as a buffer and as a channel of communications.381 5.124 Although undoubtedly answerable to Mr Hunt, Mr Smith did not have a line manager of the type in place for ordinary civil servants. He explained:382 I didnt really have a line manager, if you like, I reported in to Mr Hunt and would sort of meet with and talk with the senior officials, including the Permanent Secretary, but there was no sort of manager in that sort of strictest sense of the word, no. 5.125 Mr Smiths performance was required to be the subject of formal appraisal on an annual basis by a number of individuals, one of whom had to be his Secretary of State, Mr Hunt, and another, the Permanent Secretary, Mr Stephens. Both would have required some familiarity with Mr Smiths job description, objectives and day to day performance in order to discharge that responsibility. 5.126 Mr Smiths most recent appraisal, in December 2011, vividly corroborates the very positive evidence which both Mr Hunt and Mr Stephens gave orally about his general performance. He was extremely highly regarded. Mr Hunt wrote:383
Adam is an effective operator; bright, articulate, insightful, extremely well briefed and an effective communicator. He sees his main task as getting things done. To date he has been very effective at achieving it. He is able to me my eyes and ears at meetings I cannot attend and knows exactly what I would want to happen. He is brilliant at handling difficult situations in a civilised way without compromising on core objectives.
p66, lines 10-21, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-24-May-2012.pdf 380 p8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Adam-Smith.pdf 381 p87, lines 13-14, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-24-May-2012.pdf 382 p61, lines 6-10, Adam Smith, ibid 383 p8, and see also p9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-AdamSmith.pdf
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An ideal bridge between the department and Ministers, consistently adds value, and has been particularly adept at handling issues between Ministers. 5.127 Although, as the above appraisal makes perfectly clear, Mr Smith was a talented and able SpAd, he had had no previous experience of quasi-judicial decision making prior to his involvement in the bid. Moreover, he had been a SpAd for only a matter of months and consequently had limited experience of working in Government as opposed to working in politics more generally. In those circumstances, it was particularly important that his role in the handling of the bid should be clearly defined and that he had clear, appropriate guidance and instruction. 5.128 There was, at that time, no specific written guidance either for SpAds or more generally for departments relating specifically to quasi-judicial decisions and none was specifically issued in relation to News Corps bid to acquire BSkyB. On 25 April 2012, the day after publication of KRM18, the Cabinet Office produced and provided to departments new guidance on the handling of quasi-judicial process: Principles governing the handling of quasi-judicial decision by Ministers.384 It is intended to complement the range of good practice guidance already available to departments on the Cabinet Office website.385 Specifically in relation to SpAds, the new guidance states:386 Special advisers. Decisions of this sort should not be made by reference to political or presentational considerations. This applies regardless of the source of the advice, and that of special advisers is treated in the same way as advice from an official giving internal advice to Ministers. If a special adviser is approached by an interested party, he/she should refer the matter to the appropriate official. A special adviser so approached must not give the impression that any particular advice will be determinative when decisions are taken. Departments should bear in mind that details of any potentially relevant contacts are liable to be disclosed in the event of a challenge to the decision. All Departments should have formal written guidance for those involved in decision-making processes. Such guidance may be of general application. But departments should also consider issuing specific guidance for certain individual decisions, particularly where such decisions arise infrequently, raise issues of unusual sensitivity or are of such complexity or novelty that general guidance is likely to be insufficient to assist in the proper discharge of the decision-making function in accordance with these general principles. All such guidance should be agreed by the relevant Permanent Secretary and Legal Adviser. (emphasis added) 5.129 It is commendable that guidance has now been produced and that it was done so quickly after the problems identified by the Inquirys examination of the bid exposed a gap in existing guidance. However, it is regrettable that no written guidance was available when DCMS had to deal with News Corps 2010 bid for BSkyB. 5.130 Mr Smith does not appear to have been given any express individual instructions as to how he should, or should not, conduct himself with interested parties on matters relating to the quasi-judicial decision. On this point, Mr Hunt, who was himself new to quasi-judicial process,
pp1-2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Exhibit-to-supplementary-statement-ofJonathan-Stephens_Principles-governing-the-handling-of-quasi-judicial-decsion-by-ministers.pdf 385 p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Supplementary-statement-of-JonathanStephens-04.06.12.pdf 386 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Exhibit-to-supplementary-statement-ofJonathan-Stephens_Principles-governing-the-handling-of-quasi-judicial-decsion-by-ministers.pdf
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said that they both relied on meetings with lawyers and officials for an understanding of what was required of them and that he did not give Mr Smith any express instructions:387 Q. Any communication between Mr Michel and Mr Smith would be no different, would it, to communication between Mr Michel and you, because Mr Smith was your agent. Do you agree with that? A. Not in this process. I think sometimes special advisers have a role which is about speaking for their boss, but in this situation Mr Smiths role was a different one. He was a point of contact in a very complex process, and there to advise News Corp about the questions they had about the process and I think also to reassure them that the process was fair. Q. What express instructions, if any, was Mr Smith given as to what his special role was? A. Well, he was present at all the meetings where we had advice from lawyers and officials in the department, so he heard that advice, and it was understood that he would be a point of contact for News Corp in the process. Q. But what express instructions was he given as to the role he would undertake? A. I dont think he was given any express instructions other than how Ive described it. Q. So in terms of the discharge of the function which had been allocated to him, your evidence is he would work that out from what he heard at meetings; is that correct? A. Yes. Q. Did you give him any instructions as to what not to do? A. No. As I say, he heard in the way that I heard all the things that we needed to be careful about. 5.131 Mr Stephens (who knew that Mr Smith was in contact with News Corp but did not know of the volume or detail of that contact) accepted with the benefit of hindsight that Mr Smith should have been warned about the risks arising from dealing with a professional lobbyist:388 Q. The third point out of my four: the power of advocacy and sophistication of the lobbyist. Although you didnt know [Frederic Michel] personally, or know his exact title, you knew the sort of role he was occupying and that it was his job, really, to push as hard as he can to extract as much as he possibly could. Nothing necessarily inappropriate in that, but there was a particular risk, therefore, that the special adviser needed to be alive to and perhaps warned about. Do you accept that issue? A. Certainly with the benefit of hindsight I wish we had warned him, and indeed I think one would necessarily want to warn anyone in contact with him. 5.132 It is certainly unfortunate that neither Mr Stephens nor Mr Hunt specifically addressed with Mr Smith the risk that if he was to be a point of contact for News Corp, he could well come under pressure (at least similar to that of which Mr Hunt had had some experience) which could be difficult to deal with and so required particular attention. Such attention could not
p54-55, lines 2-6, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf; see also on the same issue p60, Jeremy Hunt, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/05/Transcript-of-Afternoon-Hearing-31-May-2012.pdf 388 pp47-48, lines 21-7, Jonathan Stephens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/ Transcript-of-Afternoon-Hearing-25-May-2012.pdf
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only have covered providing a greater awareness of the consequences of going beyond those limits, but also a degree of managerial and pastoral support to ensure that he could deal with the issues likely to arise. Both have said, in effect, that they simply trusted him to get on with it by himself. 5.133 Both Mr Hunt and Mr Smith did have the benefit of the departmental advice given in November 2010 when Mr Hunt had been advised not to contact Dr Cable about the bid. That advice, which contained the specific phrase quasi-judicial should have been enough to signal that this was not a normal policy or political decision, but it was not detailed advice about how the Secretary of State and those acting in his name should conduct themselves once responsibility for the bid had transferred to Mr Hunt. The note which both the Secretary of State and Mr Smith were sent explained that the decision was quasi-judicial and that such decisions might be judicially reviewed. In particular it warned: ...such decisions are case specific and must be taken on the individual merits of the case. They are not decisions about broader matters of Government policy as might be decided by Cabinet collectively and must be taken by the BIS Secretary of State acting alone.389 The November advice did not address the question of either actual or apparent bias. 5.134 Specific advice about the process was given after the transfer. The first such advice was given at the handover meeting on 22 December 2010 at which both the Secretary of State and Mr Smith were present. There is a documentary record of the meeting in the form of an internal email but it captures little about what was said generally about quasi-judicial decision making. It records that: BIS officials outlined the SoSs role in the process and the various legal considerations.390 5.135 Both men were also present at an internal meeting on 5 January 2011, which was preceded by written advice from DCMS officials. The advice is addressed to Mr Hunt but Mr Smith is not included in the copy addressees. In any event, it deals with next steps rather than the requirements of a fair quasi-judicial procedure more generally.391 5.136 Mr Stephens in his evidence was confident that the requirements of a fair process had been clearly communicated. He stated:392 Taken together, the written advice offered on 12 November and on 4 January 2011, and the oral advice offered in the meetings on 22 December and 5 January, including by legal advisers, established in my view clear requirements for how the process needed to be conducted, namely that this was a quasi-judicial process, in which decisions were now for the Secretary of State alone to take, on the basis of objective assessment of the evidence available to him, taking account of all the relevant considerations and ignoring any which were irrelevant. He needed to take an even-handed approach, giving all sides an appropriate opportunity to make representations, ensuring that the process was without bias or the appearance of bias. 5.137 When asked about what had been said at the 22 December 2010 meeting he thought avoiding bias and the appearance of bias had been specifically mentioned:393
the minute was addressed to the Secretary of State and copied inter alia to SpAds, pp4-5, Jonathan Stephens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JS11.pdf 390 p14, Jonathan Stephens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JS11.pdf 391 p15, Jonathan Stephens, ibid 392 p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-statement-of-Jonathan-Stephens3. pdf 393 pp24-25, lines 16-8, Jonathan Stephens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/ Transcript-of-Afternoon-Hearing-25-May-2012.pdf
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Q. BIS officials outlined the Secretary of State role in the process and the various legal considerations. Do you think that the term quasi-judicial was mentioned on that occasion, Mr Stephens? A. I think its very, very likely. Q. Was that concept explained? A. Yes. As I recall it, in this meeting and the subsequent meeting, officials took the Secretary of State and others quite carefully through the statutory functions, the stage that had been reached, the next steps, and in particular, rehearsed the need to approach the decision with an open mind on a basis that took account of the relevant considerations, ignored the irrelevant, that it was even-handed and avoided bias or the appearance of bias. Q. Its the avoidance of bias or the appearance thereof which you feel was mentioned on that occasion, do you? A. Yes. 5.138 In some contrast to Mr Stephens recollection, Mr Smiths recollection of what had been covered in these meetings was much less definite and, in particular, his understanding of what a quasi-judicial process required of him was conspicuously vague. As to what had been said at the meeting on 22 December 2010, Mr Smith stated: They [thats the BIS officials] may also have mentioned that Mr Hunt was to act in a quasi-judicial capacity. (emphasis added)394 Once he had refreshed his memory from the documents he clarified:395 I think my paragraph 44, the minutes that Ive seen, it says the process and the various legal considerations were discussed. So that sort of jogged my memory to suggest that quasi official may well have been discussed. I cant remember whether it definitively was, but we certainly did discuss quasi-judicial on other occasions if not that one. 5.139 Mr Smith was questioned closely on his understanding of quasi-judicial. The exchange, although lengthy, bears quoting in full because it suggested that Mr Smith did not in fact fully and truly understand the procedural requirements of a quasi judicial process, and (consistently with Mr Hunts evidence) had not received specific instructions as to what he could and could not do, not least with reference to avoiding an appearance of bias. He said:396 A. My understanding was that it meant that the decision had to be made only after considering certain issues, in this case namely media plurality; the sort of wider political or other policy issues couldnt be taken into account. And then sort of uniquely within government that this was a personal decision for whoever the Secretary of State was rather than a collective government decision. So a normal policy decision, if you like, even though it may well have been Mr Hunt making it. Collective government would have meant that they were all essentially making that same decision. Q. What about any process requirements built into the concept? Were you aware of those? A. Of the quasi-judicial concepts? Q. Yes.
p14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Adam-Smith.pdf p84, lines 19-21, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-24-May-2012.pdf 396 pp85-86, lines 6-25, Adam Smith, ibid
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A. Not well, the process that we were following was in the Enterprise Act, but I didnt necessarily link quasi-judicial to LORD JUSTICE LEVESON: Lets just think about the word judicial a bit, because there are lots of things I dont know much about but I know a bit about that. Im sure you would agree with me that if a judge is trying a case, then he cant speak to the parties outside the case and go and chat to them in the evening as the case is going on, one side as opposed to the other. You dont have to be a lawyer to appreciate that wouldnt be right. I mean, would you agree with that? A. I would. I think in this particular instance the quasi-judicial process and the fact that youre dealing with two interested parties, you obviously do need to discuss lots of different things with those interested parties. In fact, you need to, to get certain things to happen. LORD JUSTICE LEVESON: But in a way thats open and transparent to everybody. Dont you think? Or not? A. Um ... LORD JUSTICE LEVESON: It might be that I shouldnt be questioning you about what you viscerally understand about the phrase, but what you were told about the phrase. What you were told it meant you could do or what you were told it meant you couldnt do. A. I wasnt told I couldnt do anything in particular. It was more about because it was Mr Hunts decision, the discussion was mainly about what he could or couldnt do. I dont remember being told about myself. 5.140 It became clear that Mr Smith had approached the bid procedurally as he would have done a decision in any other policy area:397 Q. So whatever quasi-judicial might have meant in practice, it didnt really maybe Im putting it slightly too high, but it didnt really bear on what you did or didnt do because you just proceeded as you would ordinarily have proceeded in any straightforward policy area, is that fair? A. Yes, because, as I explained, my understanding of quasi-judicial was that Mr Hunt had to decide on media plurality issues and that Mr Hunt himself had to decide on the bid. Beyond that, there was no difference to the way I approached it. (emphasis added) 5.141 In the absence of specific instructions, he assumed the role of point of contact, buffer and channel of communications because he had behaved in a like capacity previously:398 Well, I had previously carried out that role for other work that the department had done and, as we sort of discussed earlier, for Mr Hunt in opposition. It was never, to my memory, sort of directly said to me, but it was just sort of inferred by me and I think as we go through, well see the department sort of assumed that that would be the case. But there was no sort of direct instruction, if you like, no. 5.142 Mr Hunt agreed that Mr Smiths role was to be a point of contact. Indeed, in the light of the bids very unhappy procedural history up to that point he positively wanted Mr Smith to be
pp94-95, lines 16-1, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-24-May-2012.pdf 398 p88, lines 3-10, ibid
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a helpful point of contact for News Corp. But he had not, he said, seen Mr Smiths role to be a channel of communication through which to exchange his thoughts with those of News Corp:399 Well, I think its important to be clear about what we mean by channel. I didnt see Mr Smith in this process as being someone who would be telling me what News Corp thought or telling News Corp what I thought. I saw him as a point of contact, an official point contact in the process, so that News Corp had someone that they could call if they had concerns about the process, and someone who was there to you know, I mean the situation in which we inherited responsibility for a bid was one in which News Corp felt they had not been fairly treated, and so I wanted to make sure that there was someone there who could answer questions about how the process was going in a helpful way.(emphasis added) 5.143 Mr Hunt plainly understood that the decision was for him alone and had to be taken on the basis only of relevant considerations, excluding the irrelevant. He no doubt also understood that he must not act in a biased fashion. But it is not clear that he fully understood just how scrupulous he needed to be to avoid the appearance of bias. It was his first quasi-judicial decision and he very fairly accepted that he had learned lessons from the experience:400 No, I think what I interpreted my interpretation of quasi-judicial, I think, you know, obviously having completed this process, one learns lessons, and Im not saying I would necessarily make exactly the same interpretation now, but my interpretation at the time was that what was important was that the decision was impartial, unbiased, and that I decided it on the basis of the evidence in front of me, and so that was where the transparency was important, but if there was something that was, you know, a trivial not trivial, thats the wrong word, but it wouldnt necessarily apply to every single matter of process. 5.144 The understanding described above fits with Mr Hunts actions. He was at pains to demonstrate how he went about making his decision, taking advice at every step and publishing relevant material as far as commercial confidences would permit. But when it came to contact with Mr Michel, although he was careful, he did not shut it down altogether. He was also content for his SpAd to act as a point of contact for one party to the bid, quietly helping it at least as far as matters of process were concerned. 5.145 Neither Mr Stephens, nor Mr Hunt, had any reservations at the time about Mr Smith being used as a point of contact for News Corp. Mr Stephens accepted that it was not necessary to use a SpAd but his view, based on his experience, was that he expected it to be useful:401 My experience in these roles is that often there is a mix between roles and that it can often be sometimes useful for similar messages to be passed on both channels. Certainly in this case, most of the contact was through legal advisers, as I would expect. There were some exchanges with policy officials and I thought there were some exchanges of the equivalent nature with Adam Smith. My experience in a number of government departments is that there is not a rigid distinction between special advisers and officials, necessarily.
pp53-54, lines 13-1, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf 400 p52, lines 7-18, ibid 401 pp31-32, lines 14-24, Jonathan Stephens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/ Transcript-of-Afternoon-Hearing-25-May-2012.pdf
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5.146 When asked why he had involved a SpAd at all in the quasi-judicial process, Mr Hunt explained that he saw a very positive role for Mr Smith in what was an important issue because he was so close to him:402 Well, he was an absolutely key and trusted aide. He is highly intelligent, highly able, and I believed that he would have a very positive role to contribute in terms of making sure that the process was run robustly and in the right way generally. Hes a very talented person and hes amongst the officials who are closest to me, so it would have been quite a natural thing; indeed, I think as Mr Stephens said, entirely proper and appropriate for special advisers to be involved in decisions that their ministers or issues that are very important to their ministers. 5.147 There is nothing inherently wrong or inappropriate in the involvement of a SpAd in a quasijudicial process and no harm necessarily results. It does, however, carry clear risks which can be avoided by using officials for this role, especially if they have experience in this type of decision making. SpAds usually work in the sphere of the political and the presentational both of which must be put aside for the purposes of making a quasi-judicial decision. Without specific instruction and adequate supervision there is a risk that they will act as they do, entirely legitimately, when dealing with ordinary policy decisions but in a way which is not commensurate with fair process or compliant with the requirements of public law. The risk is compounded if, as may well be the case, they are working with parties with whom they have had contact in contexts not connected with a quasi-judicial decision. For this reason the new Cabinet Office guidance to SpAds, discussed above, which advises SpAds to refer approaches from interested parties to an appropriate official is helpful and prudent.403 5.148 When Mr Michel sought, after 21 December 2010, to pursue and exploit the previous contact and rapport which he had had with Mr Smith, he was dealing with a SpAd who had not fully appreciated the sensitivities of such contact in a quasi-judicial context, but who had understood that his principal wanted him to be helpful to a company which had legitimate grounds for complaint about the bids handling by Dr Cable. This was a dangerous combination. 5.149 For his part, Mr Michel was a professional lobbyist who, whilst charming and experienced, said that he himself was unaware of the dangers to the process of the contact which he was actively encouraging Mr Smith to engage in. It was the first time that Mr Michel had dealt with such a transaction and the concept of a quasi-judicial decision was not explained to him by a lawyer at any stage.404 He understood something of the position of the Secretary of State recognising that any direct discussions should be formal and minuted but he did not appreciate the need for distance and transparency when dealing with Mr Hunts officials and SpAds:405 Yes. I think we had discussions on the fact that it was very important that the decision rested with the Secretary of State, that it was not appropriate to have direct discussions with the Secretary of State unless they were formal and minuted, but beyond that we were in unchartered territory in terms of and Im speaking in
p59, lines 6-16, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf 403 Jonathan Stephens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Exhibit-to-supplementarystatement-of-Jonathan-Stephens_Principles-governing-the-handling-of-quasi-judicial-decsion-by-ministers.pdf 404 p36, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-24-May-2012.pdf 405 pp36-37, lines 21-4, Frederic Michel, ibid
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hindsight as well in terms of the level of representations that could be made below the Secretary of State. and:406 No. I was never of the view that it was inappropriate to at least try to put the arguments or make representations to these officers [civil servants and special advisers]. 5.150 In the result Mr Michel interacted with Mr Smith without modifying his ordinary approach to lobbying so as to reflect the rather special circumstances of this quasi-judicial process. 5.151 James Murdoch did not regard the channel of communication between Mr Michel and Mr Smith as a secret means of informal indirect communication with Mr Hunt. He did accept the obvious point that the propriety of their communications was dependant upon what the contact was about:407 Q. Mr Hunt must have taken the view on advice that formal meetings and weve seen the minutes of those meetings, 6 January and 20 January 2011 were okay, would not impugn the fairness of the process, but if there is informal contact of the sort were seeing here, that would be inappropriate and the way to avoid the appearance of that is let the informal contact take place secretly between Mr Michel and the special adviser. Do you see that point? A. Mr Jay, respectfully, I disagree with that point. I think he was saying that informal contact between me and Mr Hunt or others would raise eyebrows, because they would say, What was discussed?, et cetera, but general contact at the political level, if you will, at the staff level, around process, around document submissions, around just to give colour around these things from us, that that was something that was acceptable and that was part of the process he was setting up. Q. It may depend on what the contact is about. Would you agree? A. I suppose so, and I assume were going to keep going through this. 5.152 It is regrettable that Mr Murdoch, to whom many of Mr Michels email reports were addressed, did not at any stage call a halt to, limit or in any sense express concern about the risks that might be run as a consequence of the nature and extent of the communications between Mr Michel and Mr Smith or the fact that they went beyond what was appropriate in a quasijudicial environment.408 Mr Murdoch need only have asked himself what the Alliance would have made of sight of the texts and emails which were passing. 5.153 Turning now to the actual substance of the contact between Mr Michel and Mr Smith, it not necessary to rehearse in full the course of their communications. From a consideration of the relevant evidence as a whole one can discern its defining characteristics. It is conducted very much on a personal and informal basis. Mr Michel almost invariably adopts a friendly approach, preferring a confrontational stance only very rarely and on key issues. He frequently flatters both Mr Smith and his principal, Mr Hunt. There is striking use of the language of common cause to communicate a sense of shared purpose. Allied to this is a tone which is
p38, lines 3-5, Frederic Michel, ibid pp26-27, lines 13-10, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcriptof-Afternoon-Hearing-24-April-2012.pdf 408 See emails addressed to James Murdoch in Exhibit KRM18, Rupert Murdoch, http://www.levesoninquiry.org.uk/wpcontent/uploads/2012/04/Exhibit-KRM-18.pdf
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occasionally conspiratorial and surreptitious. Mr Michel uses comments unfavourable of the Conservatives political opponents presumably designed to communicate that News Corp was politically on side. The majority of the communication is initiated by Mr Michel who is by far the more pro-active party. The volume of his contact is high, amounting to a barrage at times, as Mr Smith rightly described it.409 There was pressure and encouragement to change the course of the process as Mr Michel advocated the steps which would have favoured News Corps interests. 5.154 For his part, Mr Smith was usually brief in his replies, invariably courteous, and generally friendly. He was very often communicating mundane information about the process or repeating matters which Mr Hunt or DCMS officials had already stated in more formal circumstances. He stood his ground when pushed in a direction other than that which Mr Hunt intended to take. He very often did not pass on the fact, still less the content, of his communications with Mr Michel, thereby fulfilling the role of buffer. On occasions, where he judged it necessary, he did pass on information to Mr Hunt, acting as a conduit.410 He was aware at the time that Mr Michel was trying to extract information from him: Im sure thats what he was trying to do, yes.411 5.155 But there were times when Mr Smith succumbed to Mr Michels tactics and appeared momentarily at least to have been drawn in by the narrative of common cause. On one occasion he found himself joking with Mr Michel about an opponent of the bid. On another, he joined in criticism of Ofcom. He passed on information about the progress of the bid that would have been more properly communicated in a much more formal manner. He did not make formal notes of the communications. There is an issue (analysed below) about Mr Michels source of confidential information about the Governments thinking as to the form which inquiries arising out of the phone hacking scandal would take: whatever the truth of the matter, Mr Smith should never have been running any risk of being the source of any but the most inconsequential information. 5.156 The above impressions can be illustrated by reference to a few salient examples. On 10 January 2011, the telephone records showed three calls between Mr Michel and Mr Smith totalling 27 minutes, 55 seconds.412 There is also an email from Mr Michel to James Murdoch and others. It is clear from the email that Mr Smith had told Mr Michel about the reaction of Ed Richards (of Ofcom) to the points on which Mr Hunt had sought clarification from him.413 Ultimately, Mr Smith did not dispute that he had done so and correctly pointed out that it had always been Mr Hunts intention that News Corp should be informed of the clarifications that Mr Richards had provided. This is, however, an example of substantive information about the bid being communicated by Mr Smith in a very informal manner and without keeping a formal record. The e mail recorded in material part that:414 [Jeremy Hunt/Adam Smith] saw Ed Richards today:
p20, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Adam-Smith.pdf pp13-15, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-AfternoonHearing-24-May-2012.pdf 411 p9, line 15, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-25-May-2012.pdf 412 p2, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM18-TelephoneRecords1.pdf 413 p48, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf; See under Procedural Arrangements and Meetings with James Murdoch above 414 p48, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf
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he challenged Ed on the may be rationale. Ed was adamant that the threshold was very low and referral was the only option -he also challenged him on sufficiency of plurality -ed repeated the same concerns which are in the report -he didnt raise remedies with Ed. and Mr Smiths evidence about this was:415 Q. That may be right, but at least youre providing confirmation of what Mr Hunt told Mr Richards, and youre also providing fresh information as to what Mr Richards position was because you see the sentence: Ed was adamant that the threshold was very low ... That, in fact, is correct, as a matter of law. ... and referral was the only option. That would be a matter of opinion. But unless you told Mr Michel that, he wouldnt know that, would he? A. Well, I would have been confirming what Mr Hunt had said, but in the meeting that Mr Hunt had with Ofcom, the minutes of that meeting show that he wanted to share Mr Richards answers to those questions with News Corporation. Q. Mm. A. So, in this sense, thats what I was doing. 5.157 The same email contains a typical example of the sort of report which Mr Smith frequently disputed. Mr Michel had gone on to write He made again a plea to try to find as many legal errors as we can in the Ofcom report and propose some strong and impactful remedies. It is not necessary to resolve these disputes on a case by case basis, although I am satisfied that Mr Michel did on many occasions use hyperbole when reporting his conversations with Mr Smith and was prone, on occasion to inaccuracy. 5.158 Mr Michels email report of a telephone conversation with Mr Smith on 23 January 2011 contains numerous examples of Mr Michels use of the language of common cause and conspiracy, albeit in this case Mr Smith did not believe that he said what Mr Michel attributes to him. Whatever Mr Smith actually said, the terms in which it was reported demonstrate Mr Michels propensity to record matters in these terms. The report concerned the UIL and News Corps concerns about publication of Ofcoms report. It contains the phrases:416 His view is that once he announces publicly he has a strong UIL, its almost game over for the opposition. He understands fully our concerns/fears regarding the publication of the report and the consultation of Ofcom in the process; but he wants us to take the heat, with him, in the next 2 weeks.
pp26-27, lines 22-12, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-25-May-2012.pdf 416 p53, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf; pp2837, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning-Hearing-25May-2012.pdf
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He very specifically said that he was keen to get to the same outcome and wanted JRM to understand he needs to build some political cover on the process. (emphasis added) 5.159 The startling opening to Mr Michels email report of a conversation with Mr Smith to James Murdoch dated 24 January 2011 and timed at 15:21hrs reads: Managed to get some infos on the plans for tomorrow [although absolutely illegal..>!]417 The substance of the report concerned an early indication in outline of what was to happen the following day when Mr Hunt announced that he was minded to refer the bid but was going to take advice on News Corps UIL. In fact communicating this information was not, in itself, illegal but the report does, put at its lowest, convey a sense that information was surreptitiously being provided. 5.160 The next morning saw a text message from Mr Smith which, on any interpretation, was unsatisfactory. Mr Michel had started the days exchange of text messages at 07:56hrs, shortly after Mr Hunts press statement about the bid had been released. He complained, albeit in friendly terms, that Mr Hunt had not said much about the strength (as News Corp saw it) of the proposed remedy (the UIL): Good statement. not much on strength of remedy though:) Any news on meeting slots? Tomorrow 10.30 or Thursday afternoon?418 Mr Smith replied at 08:03hrs: Theres plenty potential to mitigate problems! We cant say they are too brilliant otherwise people will call for them to be published. Will check on meetings.419 On its face it is conspiratorial and appears to betray Mr Hunts thinking as being that the UIL were very strong but he did not want to be seen to be saying as much. That is an interpretation which would be consistent with the terms of Mr Michels email of 23 January 2011, discussed above. Mr Smith gave a different explanation for his use of this language, claiming that he was being disingenuous to mollify Mr Michel:420 I think by this stage, Mr Michel had got quite cross that Mr Hunts statement didnt, as he had been asking for and pushing for previously you will call the UILs strong or brilliant or, you know, some sort of description like that, and the first part of my text was a bit of a the potential to mitigate problems bit was paraphrasing what Mr Hunts statement had said that had gone out slightly earlier that morning, was an attempt by me to say there is support for the UIL. I mean, if you read what Mr Hunt said, I mean it didnt support the UIL, so my attempt there was quite sort of shaky ground, if you like. Then, the other part was too flippant and jokey, I admit that. Q. The position is that Ofcom was recommending a referral to the CC. The UILs had been published or at least published internally on 20 January and this was the remedy which would prevent the referral to the CC if they were strong enough, but the departmental view, apparently, was that the UILs were solid, were good indeed it was your term, brilliant, but you couldnt say they were brilliant, otherwise that would undermine the process and, whats more, as you rightly pointed out, people would ask for them to be published. Dont you accept that thats the only reasonable interpretation? A. That was an attempt by me to pacify and mollify by being slightly disingenuous. If you read what Mr Hunt had said, he didnt say they were brilliant.
pp56-57, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf p49, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM91.pdf 419 p50, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM91.pdf 420 pp41-42, lines 16-19, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-25-May-2012.pdf
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5.161 Mr Smiths explanation shows some vulnerability to Mr Michels modus operandi, preferring to enter into the conspiratorial dialogue rather than provide an alternative and more appropriate reply. Mr Michels response was to keep pushing. After the Parliamentary statement at 09:30hrs that morning he texted: Still. All the language is statutory. I understand the constraints but there is nothing in the statement which gives us comfort or send [sic] signals that remedy is strong one.421 Mr Smith replied: Other than what Jeremy and I have told you! We have no legal wriggle room in a statement to parliament.422 That reply prompts the question: what had the Secretary of State and Mr Smith told Mr Michel? Mr Smith said that he was referring only to what Mr Hunt had told them on 20 January and what he had reiterated of that.423 He described his text as another example of him trying to get Mr Michel off his back. 5.162 By this stage Mr Smith was already far too close to Mr Michel and their communications were unacceptable in the context of his principal making a quasi-judicial decision. Despite his evident discomfort, Mr Smith explained why he did not call a halt to the exchanges. He felt that it was his job to remain as the point of contact:424 Q. One strategy you might have used by this point is simply to turn off your mobile phone, frankly. Werent you reaching the point that this was getting much too close now, to this man? A. I dont think that I would have been doing the job that I had assumed in terms of being a point of contact with News Corporation if Id stopped being the point of contact with them. I mean, in hindsight I would have maybe liked to have at some stages to have had a break from it, yes. 5.163 It is regrettable that Mr Smith did not take what should have appeared as an obvious step, namely to seek the advice of the Permanent Secretary or Mr Hunt either at this stage or, indeed, at any stage of the process about Mr Michels communications and how he should deal with them. In not doing so, he made an error of judgment. Even allowing for his lack of experience, the lack of specific instruction, and the perceived need to provide procedural reassurance to News Corp, he ought still to have realised that the volume, tone and content of Mr Michels emails was an issue to be raised with others. Continuing the dialogue and seeking to appease Mr Michel was a mistake. 5.164 There were further text exchanges on 25 January 2011 culminating, at 22:26hrs in an example of Mr Michels use of the language of common cause: I think we re [sic] in a good place tonight no?425 To which Mr Smith replied: I agree. Coverage looks ok. Lets look again in the morning though!426
5.165 On 4 February 2011, Mr Smith sent a text message which he admitted looked surreptitious. Mr Michel had asked for sight of the documents submitted by Enders and by Slaughter & May. Mr Smith replied: I havent actually got them at the moment. Officials just told me about them. Dont mention them to anyone like oft etc. If we need them Ill show you. When
p52, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM91.pdf p53, ibid 423 p45, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning-Hearing25-May-2012.pdf 424 pp45-46, lines 21-5, Adam Smith, ibid 425 p65, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM91.pdf 426 p66, ibid
422
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questioned about his choice of words, he accepted that it looked surreptitious, whilst denying that anything surreptitious actually happened:427 Q. One possible inference is that you were going to do something a little bit surreptitious. Would you accept that? A. I do accept that it looks like that way, yes, but I dont believe anything like that happened.(emphasis added) 5.166 Five days later, on 9 February 2011, Mr Smith joked with Mr Michel in partisan terms. Mr Michel informed Mr Smith that he was to see Lord Black, an opponent of the bid: Am seeing Guy Black Monday evening. Interesting. James in London until Friday if needed. He is then off to New York next week. Fred.428 Mr Smith replied: Take your stab proof vest with you! Am hoping for an update later on process so will let you know if anything new (emphasis added)429 Mr Smith did not seek to defend the comment: ...I wouldnt have used that language again, if I had the opportunity.430 Not only does this joke contribute to an appearance of bias given by the course of communications as a whole, it also exemplifies the inherent dangers of using a medium of communication as informal as text messaging in the course of the formal process of which, although not the decision maker, he was a part. 5.167 Relevant to the question of the appearance of bias, Mr Smith accepted that the accumulation of text messages gave rise at least to the perception that he was on side with Mr Michel. It was put this way:431 Q. Its just the accumulation of text messages, which arguably give rise to am impression. One cant identify one particular message and say, Aha, this means X rather than Y, its just the series of them. Do you accept that they are giving rise at least to the perception that you were on side with Mr Michel? A. I can see how that perception would be created, yes. 5.168 Despite the cumulative effect of very many emails which prompted Mr Smiths realistic admission, the course of the dialogue was by no means one way. In particular, there are a number of issues on which Mr Michel pushed really quite hard for an outcome which he did not get. For example, these included efforts to persuade Mr Smith to persuade Mr Hunt to dismiss Ofcoms views. On 9 February 2011, Mr Michel related a conversation with Mr Smith in these terms:432 I told him he had to stand for something ultimately and this was his chance to dismiss Ofcoms views and show he had some backbone, he said he couldnt ignore Ofcom, he had brought them into this OFT process to get some cover and in public debate, he would get absolutely killed if he did such a thing. 5.169 Mr Smith said of this:433
p51, lines 15-19, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-25-May-2012.pdf 428 p128, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM91.pdf 429 p129, ibid 430 p53-54, lines 18-10, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-25-May-2012.pdf 431 p56, lines 12-18, ibid 432 p78, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf 433 p60, lines 3-5, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-25-May-2012.pdf
427
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Well, I dont actually remember him saying those sorts of specific words, but I do know that they were constantly pushing for the Department to essentially ignore Ofcom. 5.170 News Corps constant pushing, through Mr Michel and through more formal channels, got it nowhere. Mr Hunt resolutely maintained his reliance upon the regulators advice. Similarly, when News Corp described Ofcoms advice that the hived off Sky News should have an independent chairman, Mr Michel told Mr Smith that it was a deal stopper.434 That act of brinksmanship did not prevent Mr Hunt from writing to News Corp on 15 February 2011 and giving the company just 24 hours to agree in principle to that and other recommendations that had been made by Ofcom.435 5.171 It is worthy of mention that Mr Michels exchanges with Mr Smith about Ofcoms advice at this stage of the process involved premature disclosure by Mr Michel to Mr Smith of a letter written by Ofcom to News Corp, a fact that was reflected in typically conspiratorial terms by Mr Michel to James Murdoch:436 he cant instruct his officials to get back to Ofcom as he is not supposed to be aware that we have received the letter and its content ...so we have to be very careful on this. 5.172 On 11 February 2011, Mr Michel, who was waiting for Ofcoms report, sent a text to Mr Smith at 21:26hrs. It was one of a number that day. He wrote: Thanks Adam. Hope you get home soon. It might arrive very late tonight. Last time Ofcom sent it at 23h! Mr Smith replied sarcastically, in terms which would have struck a chord with News Corps jaded view of the regulator: Helpful! Just one of their many strengths. 5.173 On 17 February 2010, only two days after Mr Hunts firm letter to News Corp, Mr Smith found himself lapsing into the language of common cause so frequently used by Mr Michel. The latter emailed a summary of the previous days Media Show broadcast by BBC Radio 4. Mr Smith emailed a reply which read: Interesting. More evidence that we need to be strong and confident when we go to public consultation (emphasis added).437 Mr Smiths explanation to Counsel to the Inquiry that by we he meant the DCMS did not escape the fact that this was language that might equally have come from News Corp. The exchange went as follows:438 A. The point of the email below is that there were I think it was on the radio, wasnt it? Yes. An individual from Enders analysis had been saying that there were possible remedies that could deal with the Ofcom concerns and, of course, by this point News Corporation had written to Mr Hunt to concede on the points that Ofcom and the OFT had asked to be in the UILs, so the point there was that, if people that had previously been opposed to the undertakings in lieu were now saying that there may be undertakings in lieu, that could work and that News Corporation had conceded on the issues that Ofcom and the OFT had wanted in there, then there was every reason for the department and Mr Hunt to be confident about those undertakings in lieu.
p57, line 18, Adam Smith, ibid see under Consideration of the Proposed UIL: Advice and Consultation above 436 p78, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf 437 p88, ibid 438 pp70-71, lines 16-11, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-25-May-2012.pdf
435
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Q. Youre almost communicating there a public relations message, and coming close to putting yourself in the same boat as News Corp by using the pronoun we. Do you accept that? A. We would have been we the collective department I wouldnt have put I because I obviously wouldnt have been saying anything publicly. 5.174 Comparison of Mr Smiths text messages to Mr Michel on 24 February 2011 with Mr Michels internal email reporting back to James Murdoch, contain a clear exaggeration by Mr Michel. The communications concerned Ofcoms then ongoing work considering the proposed UIL.439 At 08:25hrs Mr Smith texted: They said this was a promising basis from which to work in their advice to JH. Not quite complete acceptance so I guess thats why they are looking for confirmation on some things.440 5.175 At 10:43hrs he stated: We cant interfere with the process really. We can give more time but not deal with substance whilst they are working with you.441 5.176 At 10:50hrs, Mr Michel emailed James Murdoch in terms which communicated what Mr Smith had texted but then added a further sentence:442 JH just texted that he cant interfere with the process but can give us more time to sort things out. He cant engage substance whilst Ofcom is working with us. He can only use his officials to put pressure at this stage. (emphasis added) 5.177 Typical of Mr Michels familiarity and use of flattery was a text exchange on 3 March, at the culmination of an intense period of activity leading up to the Secretary of States oral statement to Parliament announcing the first public consultation about which Mr Michel texted: Jeremy is superb. Mr Smith replied: Im now at the airport so missed it but glad it went well. The late night and early prep was worth it! Mr Michel followed up, adding a comment with a political dimension: Seriously. Really good defence and slapped Ivan Lewis who was humiliated. Enjoy Italy.443 5.178 The flattery was later augmented by an offer to socialise. On 5 April 2011, Mr Michel texted: Would you both like to join me and [my wife] for Take That on 4th July at Wembley? Fred.444 5.179 The text which Mr Smith most regretted sending was dated 2 June 2011. On its face it appears to show that he and Mr Michel had become so close that they were almost working together. Mr Smith said that in fact it was another attempt to mollify Mr Michel and was not substantively true. The text read:445 Over the last few days I have been causing a lot of chaos and moaning from people here on your behalf. I should have an update later today(emphasis added)
see under Consideration of the Proposed UIL: Advice and Consultation above p220, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM91.pdf 441 p227, ibid 442 p96, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf; see also pp74-75, lines 23-2, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-25-May-2012.pdf 443 pp318-320, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM91.pdf 444 p415, ibid 445 p485, ibid
440
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5.180 Mr Smiths explanation was in these terms:446 A. This is the one that I do regret the most. By this stage I was probably coming toward the end of my tether, as it were, and I sent him a text to get him off my back, but I certainly dont think anybody in the department would have said that thats what Id been doing, and I certainly wasnt doing anything on their behalf, but in hindsight I shouldnt have sent it, but it was an attempt to mollify him. Q. Either to mollify or to indicate assent to the proposition, I suppose, theres a degree of collusion here between you, that youve become so close that you were almost working together. Do you feel that thats a reasonable inference or not? A. I can see how people would think that, but I sent it to mollify him and get him off my back, not to do as youve just suggested. 5.181 On 27 June 2011, Mr Michel sent Mrs Brooks an email purporting to communicate Mr Hunts views about how the Government should respond to the unfolding phone hacking issue. It read:447 Hunt will be making references to phone-hacking in his statement on Rubicon this week. He will be repeating the same narrative as the one he gave in Parliament few weeks ago [sic]. This is based on his belief that the police is pursuing things thoroughly and phonehacking has nothing to do with the media plurality issue. [Its] extremely helpful. On the issue of the Privacy Committee, he supports a widening of its remit to the future of the press and evidence from all newspaper groups on the regulatory regime. He wants to prevent a public enquiry [sic]. For this, the Committee will need to come up with a strong report in the Autumn and put enough pressure on the PCC to strengthen itself and take recommendations forward. JH is now starting to look into phone-hacking / practices more thoroughly and has asked me to advise him privately in the coming weeks and guide his and [No10s] positioning... 5.182 When asked about this email Mr Smith accepted that he might have asked Mr Michel to be kept informed about News Corps reaction to the phone hacking scandal but denied that he asked to be guided. He said:448 A. Yes, certainly. If this was a conversation with me, its quite possible that I asked him to let me know what steps News International was taking in response to the phone hacking situation, mainly because the department is obviously responsible for the media sector, so that would be interesting, but I would never have asked to be guided, and I think this use of the word privately again is one that I dont really sort of recognise because if Id asked him to send me statements they were making about phone hacking, then he would have sent them to me. I dont think thats privately.
pp92-93, lines 17-7, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-25-May-2012.pdf 447 pp2-3, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-RMB-21.pdf 448 p109, lines 9-19, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-25-May-2012.pdf
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5.183 For her part, Mrs Brooks reaction was simply to ask for confirmation as to when Mr Hunt would be making his statement.449 5.184 On 30 June 2011, the day on which Mr Hunt announced that he was minded to accept the revised UIL, subject to a second short consultation, Mr Michel combined flattery, and the narrative of common cause in little more than a line. His text read: Just showed to Rupert. Great statement by the way. We need to knock Avaaz down. They are all about US Democrats.450 5.185 By 7 July 2011, publicity about the phone hacking scandal was reaching a crescendo. Mr Smith called Mr Michel at 17:35hrs and had a conversation lasting 11 minutes and 8 seconds.451 At 18:01hrs, Mr Michel emailed James Murdoch and others at News Corp with a report relating to the bid.452 The subject line read: JH CONFIDENTIAL please read. The first bullet point contains information about the Governments then current thinking about inquiries into phone hacking. This was material that was not in the public domain. Under the subheading Latest on Rubicon (News Corps code name for the bid) it read:453 -Was not discussed at the No10 meeting that Hunt had with the PM was discussing the two enquiries [police one led by a judge; and media practices one not with a judge and led by DCMS] 5.186 Mr Smith accepted that it was possible that he was the source of this information but did not accept that it was probable that he did so. The exchange with Counsel to the Inquiry on the point was as follows:454 Q. There is reference to two possible public inquiries, which, at that stage, we believe does represent government thinking on 7 July. The suggestion is that the only source for this information could have been you, and it ties in with what we know to be a fact, namely the telephone call half an hour earlier. Would you agree that or not? A. Im not sure that I would necessarily be the only source of that information. I cant remember, at that stage, whether I knew that that was the case. I may well have done. Q. You may well have done? A. Yes, I may well have done but I cant remember whether I did, but I think most of the discussions were most of those conversations were being dealt with by Number 10 but I dont know Q. This wasnt in the public domain as yet, Mr Smith. I think the simple point Im making, and it may be more a matter for inference, if you knew the facts set out in the first bullet point, if you accept that there was a conversation within half an hour of this email, one possible inference, it may be a reasonable inference, is that youre the source of the information we see in the email. Would you agree with that? A. I would agree that that is a possible inference, yes.
p2, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-RMB-21.pdf p584, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM91.pdf 451 p8, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM18-TelephoneRecords1.pdf 452 p160, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf 453 ibid 454 pp106-108, lines 1-5, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-25-May-2012.pdf
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Q. Probable inference? A. Possible. Q. Unless there was someone else providing this information ahead of the game, youre the only person we can possibly look at for these purposes, I think. Would you accept that? A. I dont know who else I mean lots of other people would presumably have known only far more than I would have done by this stage because but I dont know who Q. Pretty confidential, I would have thought at this point, what government thinking was. It would have been known about, obviously within Number 10, the Cabinet Office, people high up in DCMS and something that you knew about because Mr Hunt might have shared it with you. Is that fair? A. I dont know that I did know about it, but he may well have shared it, yes, but I dont remember at this stage. Q. Had he shared this information with you, do you accept that its information which, Im not saying that you did impart it to Mr Michel, but you shouldnt have imparted it to Mr Michel? A. Yes, I would say so, yes. Q. Which may explain why youre hesitant to agree with me that you did impart it to Mr Michel A. Well Q. that would be natural, wouldnt it? A. I dont remember imparting it, mainly because I dont quite know that I knew it, which would make it quite strange for me to be able to impart it. 5.187 The very close temporal link between the telephone conversation and Mr Michels email, the fact that Mr Michel was obviously reporting in his email about the telephone conversation with Mr Smith, the reference to Mr Hunt and the complete absence of evidence that Mr Michel was communicating with anyone else about these matters, all lead me to infer that it is not merely possible but probable that it was Mr Smith who had provided confidential information about Government thinking as to the appropriate form of inquiries arising from the phone hacking scandal. The rapid leak of confidential Government thinking to the parent company of the entity at the heart of the scandal is undeniably a matter of concern.
5.188 Both Mr Hunt and Mr Stephens knew that Mr Smith was in contact with News Corp. Mr Stephens was aware that Mr Smith was attending formal meetings and on occasion following up points of process and procedure with News Corporation.455 He did not know Mr Michels name or job title but he did assume that Mr Smith was in contact with someone with access to News Corps Chief Executive. He thought that the purpose of Mr Smiths contact was:456 To follow up on matters of process and procedure, to reinforce, on occasions, messages that the Secretary of State had delivered personally or in correspondence to News Corporation.
p29, lines 15-17, Jonathan Stephens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcriptof-Afternoon-Hearing-25-May-2012.pdf 456 p30, lines 14-17, Jonathan Stephens, ibid
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5.189 Mr Stephens did not become aware of the full nature or extent of the contact, or, indeed, that it had in any way been inappropriate until 24 April 2012.457 5.190 Mr Hunt described Mr Smiths role as:458 a point of contact, an official point of contact in the process, so that News Corp has someone that they could call if they had concerns about the process, and someone who was there to you know, I mean the situation in which we inherited responsibility for a bid was one in which News Corp felt they had not been fairly treated, and so I wanted to make sure that there was someone there who could answer questions about how the process was going in a helpful way. 5.191 As well as being aware of Mr Smiths role, there were occasions during the process on which Mr Smith reported back to Mr Hunt about particular aspects of the contact which thought were worthy of his attention. When asked whether he had specifically used Mr Michels name in discussions with Mr Hunt, Mr Smith said:459 I cant remember whether I specifically did but I would have thought, on the odd occasion that I did mention to Mr Hunt, on one of the issues that I thought was worthy of his attention, I would, I think, almost certainly have said, Freds told me X,Y or Z. 5.192 Nevertheless, Mr Hunt expressed his shock at discovering the true extent of the contact in his evidence:460 Q. I suppose it might be said that the greater the volume of contact, arguably the more extraordinary the contact, the more likely it is that hed communicated the fact that there had been such an amount of contact with you. Are you sure that he didnt, Mr Hunt? A. He didnt, and I was totally shocked when I discovered the level of that contact. I think it does explain why sometimes he slipped into inappropriate language. 5.193 I must admit to finding it surprising that Mr Smith, who had worked for Mr Hunt so closely and for so long should have kept him unsighted on the way in which he was performing what he saw to be his duty; that, as I understood it, was the role of a SpAd to be the eyes and ears of his principal. Both men, however, make it clear that Mr Hunt was unaware of the nature, and extent of his contact with Mr Michel. Mr Smith explains the position on the basis that his role as a buffer was specifically to protect his principal from the barrage to which he had been subjected. In the circumstances, I accept what I have been told. 5.194 There were officials and lawyers within DCMS who knew that Mr Smith was in contact with Mr Michel. The evidence about that contact did not suggest that they were aware of the full nature and extent of the contact that was actually taking place. However, it did confirm that
p8, Jonathan Stephens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-statement-ofJonathan-Stephens3.pdf 458 pp53-54, lines 17-1, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-31-May-2012.pdf 459 p6, lines 8-12, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-25-May-2012.pdf 460 p45, lines 16-23, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-31-May-2012.pdf
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no one suggested to Mr Smith that he ought not to be communicating with Mr Michel. Mr Smith said:461 I suppose what I would say is that they generally knew I was in touch. On some certain issues they certainly knew, but I dont think they knew the volume or extent. and:462 ...I think as the process went on with discussions I had with members of the department or emails I sent them, they would have very clearly been aware and knew that I was having those discussions with Mr Michel, and nobody ever said, you know, where did you hear this or you shouldnt be doing that or it was I assumed that was the role I was going to be taking, and then as it developed, I dont think anybody was surprised that that was the role. 5.195 There were naturally a number of lawyers and officials who were in communication with News Corp about the bid. Jon Zeff, who was the lead official for the DCMS on the bid, exchanged text messages with Mr Michel. This text contact is deserving of mention because of the contrast between it and that which passed between Mr Michel and Mr Smith. There were far fewer in number, only 23 in the period 20 January 2011 to 13 July 2011. They are typically very short, to the point, and limited to matters concerning the actual execution of the process.463
Conclusions
5.196 In some respects, there was much to commend in Mr Hunts handling of the bid. It is undeniable that he had views about News Corp and its place in UK media operations: these were views that he was entitled to hold given his portfolio responsibilities. He appreciated, however, the need to restore confidence after Dr Cables damaging utterances and showed a determination to put aside these views and to follow a fair and rigorous procedural route to a final decision. At the formal level there was a high level of transparency. Mr Hunts extensive reliance on external advice, above and beyond the minimum required, was a very wise and effective means of helping him to keep to the statutory test and to engender the confidence of those opposed to the transaction that an objective decision would be taken. There is a danger if the decision maker accepts and follows advice too slavishly. If that is done then discretion is fettered. Mr Hunt avoided that risk, as was evidenced by the way in which he probed Ofcoms advice. 5.197 All the effort and good work which was done on the bid was put in jeopardy by a serious hidden problem. Had Mr Hunt accepted News Corps UIL, and had there been a challenge to that decision by way of an application for judicial review, seeking to impugn the procedural fairness of the decision (a course which had in fact been the subject of thinly veiled threat by Slaughter and May at an early stage) then there would have been an obligation on the Secretary of State to disclose all relevant documents evidencing contact between News Corp and him and his officials, including that of his SpAds, relating to the bid. The effect of those documents, particularly the communications between Mr Michel and Mr Smith, would undoubtedly have been to give rise to a powerful argument that there was at least
p7, lines 22-24, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-25-May-2012.pdf 462 pp93-94, lines 22-5, Adam Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-24-May-2012.pdf 463 pp1-23, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM102.pdf
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the appearance of bias in the process and therefore the risk of a successful claim for judicial review. 5.198 In reaching this view, I should make clear that I am doing so on the merits of the matter. I fully recognise that the practical risk of a judicial review in relation to this serious hidden problem was, almost by definition, low. Those who might have brought such a challenge would have been unaware of the basis they had for doing so. Even had the risk eventuated the chance of a punctilious search within the Department for all potentially relevant material yielding these particular documents were not high either. The majority of the relevant material disclosed to the Inquiry was provided from the records of News Corp. But none of this is to the point; the substantive legal and ethical issues remain, the hidden problem was there, and it might not have remained for ever concealed. The disclosure of these documents as KRM18 during the Inquiry process shows that events can take an unpredictable course. 5.199 There is one further observation I make about this. To the extent that the practical risk of an application for judicial review might have been assessed as low precisely because the appearance of bias would not have been apparent in departmental records, there are additional reasons to express concern about the hidden problem of voluminous private (unrecorded) communications by text and email. In quasi-judicial procedures, there is no place for any argument that relevant conduct, as all of these communications certainly were, is somehow rendered any less relevant because it is informal, unrecorded, and contains some mixture of the personal, the political or the presentational. 5.200 I well understand the distinctions that have to be made from the point of view of Government accountabilities between the conduct of SpAds (and, indeed, Ministers) on Government business and on party-political or personal business. But these are distinctions which have to correspond to the substance of a communication or other course of conduct, not its manner and form. Government business does not cease to have that character simply because it is transacted out of hours on a personal phone and includes private pleasantries. And where quasi-judicial decision making is concerned, all relevant actions and communications by a decision maker or those acting with his or her actual or apparent authority are, in reality, Government business. 5.201 Among all the excesses of Mr Michels correspondence, perhaps the message with some of the most concerning wider implications was his advice to his principal not to meet with the decision maker on the grounds of counter-productivity, but advising in terms that he could have a chat with him on his mobile which is completely fine and I will liaise with his team privately as well.464 This example in microcosm of a practice where the informal, offrecord and personal is seen as an obvious and effective means of conducting lobbying on matters of media policy is symptomatic of a problem evidenced more widely to the Inquiry; the fact that such practices have a side-effect (I say no more than that) of placing the conduct of public policy issues outside the mechanisms of transparency, accountability and public record cannot but give rise to perceptions and questions which are corrosive to public trust and confidence. I underline this point because it is in this respect that I consider the conduct of the BSkyB bid to have important characteristics, as part of a much wider issue about the relationship between the politicians and the press, which I consider in some detail in the conclusions I draw at the end of this Part of the Report. 5.202 It is right to recognise that the bid came to Mr Hunt and DCMS in a crisis not of their making. That it did so made Mr Hunts task all the more difficult. Even so, examination of the course
p23, lines 1-4, ibid; p28, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/ExhibitKRM-18.pdf
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of the bid shows that the seeds of the problem which was to emerge were sown at an early stage. The process that was put into place did not prove to be robust enough. Best practice of the kind subsequently encapsulated in the Cabinet Office guidance was not followed. There was no written guidance for Mr Smith and others as to the conduct expected of them in a quasi-judicial environment. Mr Stephens, no doubt, genuinely believed that the requirements and the principle had been made crystal clear in the various meetings that he described, and to him as a very experienced and senior civil servant, they may indeed have been. 5.203 Evidently, however, at the level of practical detail, these requirements and the underlying reasons for them were not made clear enough for Mr Smith, or even, albeit to a much lesser extent, for Mr Hunt. For reasons already discussed above, the use of a SpAd as a point of contact for News Corp gave rise to risks which could easily have been avoided by entrusting the task to an official: the decision to allocate the role to a SpAd was, in my judgment, unwise. That is not because of any question about his integrity or calibre, but because he had a preexisting and amicable relationship with Mr Michel, which Mr Michel was able to exploit to engineer contact that was inappropriate in volume and in some cases in tone. Mr Michel was also able to trade on the fact that Mr Smith would want that relationship to continue after the bid was concluded. When faced with the intimacy, charm, volume and persistence of Mr Michels approaches, Mr Smith was put in an extremely difficult position. 5.204 That was a risk which was, or should have been, obvious from the outset. The consequential risks were then compounded by the cumulative effects of the lack of explicit clarity in Mr Smiths role, the lack of sufficient express instruction that it was clear he fully understood, and a lack of supervision. They are all matters for which Mr Hunt was responsible, although they might have been prevented had Mr Hunt fully appreciated the extent to which meticulous attention had to be paid to every aspect of the conduct of quasi-judicial procedure. Given that this was the problem that had faced Dr Cable, Mr Hunt was very aware of his own position. 5.205 Irrespective of the extent to which News Corp might have been entitled to feel aggrieved by the comments of Dr Cable, the bid was now in different hands and its consideration started afresh. Both from the perspectives of Mr Hunt as decision-taker and Mr Stephens responsibilities for advising him and for the overall conduct of the bid process, it was essential that the precise limits of what was acceptable (and, just as important, what was not acceptable) were fully understood by all who might have contact with News Corp or its executives: that most certainly included anyone in the position of Mr Michel. Unfortunately, both Mr Hunt and Mr Stephens appear to have overestimated Mr Smiths detailed comprehension of the requirements and limits of his role, and his capacity to put them into practice unsupported; their overconfidence in him appears, ironically, to have its roots in the excellence which Mr Smith had demonstrated in his more usual duties. For Mr Hunt, this was an issue of the tasking and management of his SpAd; for Mr Stephens, it was an issue that could create risks for conduct of the bid. 5.206 There is much to say by way of mitigation for Mr Smith. He was inexperienced, had been involved in Government for a matter of months and had never before been involved in (even if he had ever heard about) a quasi-judicial process. He did not receive what was to be, for him, sufficiently clear or detailed guidance because, although he heard what Mr Hunt and Mr Stephens heard and, I have no doubt, wanted to further the proper discharge of his principals duties, he did not appreciate the limitations; neither was he appropriately supervised. On the one hand, he behaved as if his role was to act as eyes and ears which meant keeping Mr Hunt informed of what was happening; on the other hand, he was a buffer, there to provide a measure of protection. Trying to reconcile these roles, he effectively behaved as he would on any other matter while operating in the political environment with which he was familiar.
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5.207 Mr Smith was diligent, literally to a fault on this occasion, and undoubtedly had discharged his duties in an exemplary manner before having to deal with the bid. Despite all that can be said on his behalf, he ought nevertheless to have realised that Mr Michel was pushing his way too far into the process, by over-familiar means, and that action was required to address that. It is regrettable that he did not seek advice from either Mr Hunt or Mr Stephens, or alternatively take action himself to put the communications onto a proper footing. Instead, he succumbed to Mr Michels intimate, surreptitious and conspiratorial language and got way too close to him, ultimately, as I have concluded, probably passing on confidential information about Government thinking which should never have been imparted to News Corp. 5.208 The perception of bias emerges from the exchanges between Mr Smith and Mr Michel. What was not evident from the close consideration of events which the Inquiry undertook was any credible evidence of actual bias on the part of Mr Hunt. Whatever he had said, both publicly and in private, about News Corp or the Murdochs, as soon as he was given the responsibility for dealing with the bid the evidence demonstrates a real desire on his part to get it right. His actions as a decision maker were frequently adverse to News Corps interests. He showed a willingness to follow Ofcoms advice and to take action, to the extent recommended by the regulators, in response to the consultation. Even had the deal been approved, it is abundantly clear, that it would only have been permitted to proceed subject to very significant and closely scrutinised UIL.
6. News Corp and the Rt Hon Alex Salmond MSP

6.1 The lobbying of Adam Smith was not the only way in which Mr Michel hoped to influence Mr Hunt. One of the conduits which Mr Michel sought to exploit calls for examination. Its roots lay in the period before Mr Hunt took over responsibility for the bid. During the autumn of 2010, Mr Michel had been in touch with the First Minister for Scotland, the Rt Hon Alex Salmond MSP. By this stage, Mr Salmond was forging a close relationship with Rupert Murdoch and News Corp which is discussed more fully elsewhere in this Report.465 In particular, he was hoping to secure the support of The Scottish Sun in the then forthcoming 2011 Scottish Parliament election. Mr Salmond saw advantage for Scotland in the bids success because News Corp is a big employer in Scotland. He was more than ready to try and encourage a successful outcome for the bid. An email from Mr Michel to James Murdoch dated 1 November 2010 records Mr Salmonds position and that of another unnamed politician466 with a political interest in the bids success:467 Mission accomplished. Libdem MP, former Sky employee, with major Sky customer centres in his constituency and around, will contact Vince Cable to ask him to bear in mind the economic / investment point of view rather than getting influenced by political games, especially in times of austerity and very difficult economic environment for those areas. He will also emphasise the opportunity for Cable to show the maturity of the Libdems as coalition partners, working for the long-term, and will draw from the Coalition
See Part I, Chapter 7, Section 4 Mr Salmond thought it was a Scottish MSP, p66, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/ Transcript-of-Afternoon-Hearing-13-June-2012.pdf 467 p20, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf; see also pp66-67, Alex Salmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-AfternoonHearing-13-June-2012.pdf
466 465
6.2
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government experience lib-dems have had in Scotland. He agrees with the need for this to be looked at by Brussels rather than scrutinised again on plurality ground in the UK [sic] Alex Salmond is very keen to also put these issues across to Cable and have a call with you tomorrow or Wednesday. His team will also brief the Scottish press on the economic importance of News Corp for Scotland.(emphasis added) 6.3 Mr Salmond did not quarrel with the thrust of that email and confirmed that he had not only spoken to James Murdoch about the bid but also gone on to meet him in London in January 2011 to discuss the bid and other matters. Mr Salmond explained the importance of the bid to Scotland in these terms:468 It should be understood, I mean, BSkyB is a huge employer in Scotland. Were talking about more than 6,000 full-time jobs in addition to the 2,000 outsourcing jobs and temporary jobs. Its vital in Dumfirmline, Livingston, Uddingston. Some 36 per cent of BSkyBs total global employment is in Scotland. They are in the top 10 of Scottish private sector employers. So its a matter of great importance and the argument being forward by Mr Murdoch was that an expansion of the digital platform on a European-wide basis would result in additional investment and that Scotland would be well placed in that context to benefit, given the strength of the Scottish offer in terms of competitiveness, to benefit from that additional investment. 6.4 Mr Salmond confirmed that when he had spoken to James Murdoch by telephone the bid had been mentioned and that he wanted to discuss the bid with Mr Murdoch when he met him:469 Q. You refer, though, to the impact of consolidation of BSkyB ownership, so plainly you had in contemplation at that stage the BSkyB bid; is that right? A. Thats correct. Prior to this, it had been indicated I think in a phone call Im sure in a phone call, actually, because I wanted to meet Mr Murdoch to discuss this in particular. This was one of the key things I wanted to discuss, to understand better the argument that the consolidation of ownership would result in additional investment and that Scotland was well placed. To be fair well, Im going to be more than fair, they can speak with a great deal of authority, if a company has 36 per cent of its global workforce in Scotland, then they speak from a position of some credibility.(emphasis added) 6.5
He regarded it as his duty to pursue jobs and investment for Scotland and denied any responsibility for plurality in the press. He had been prepared to put forward those arguments to the relevant Secretary of State but, as things turned out, the opportunity to do so never arose:470 Q. I think its fairly clear from what youve just said, Mr Salmond, that certainly from the date of this meeting with Mr James Murdoch you were in favour of the bid. Is that right? A. Yes. I was in favour of what benefited the Scottish economy. Remember, I have no responsibility for broadcasting policy, I have no responsibility for plurality in the press,
pp53-54, lines 14-3, Alex Salmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-13-June-2012.pdf 469 p54, lines 4-17, Alex Salmond, ibid 470 pp54-55, lines 18-20, Alex Salmond, ibid
468
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but I do have a responsibility for jobs and investment in Scotland. That is my statutory responsibility. Indeed, its reflected not just in the fact its my responsibility, its actually reflected in our Ministerial Code in Scotland that it is one of the responsibilities that you must pursue. So I would tend to put an emphasis on the jobs and investment aspects of this. It was for others to consider other matters. And specifically what I was prepared to do and said I was prepared to do would have been to speak to the relevant Secretary of State to say jobs and investment are going to be a consideration along with other things that they had to consider when these matters were brought to decision at the appropriate time. As circumstances turned out, that appropriate time never arose, but I was certainly prepared to argue for that and I would certainly say thats entirely a legitimate preoccupation and argument that the First Minister of Scotland or any Scottish minister should put forward. (emphasis added) 6.6 He said that a purpose of his meeting with James Murdoch in January 2011 had been better to understand the potential consequences of James Murdochs plans for a European digital platform for Scotland:471 MR JAY: Mr Salmond, before January 2011, were you a supporter of the BSkyB bid or not? A. What Id said was that Id be prepared to argue to the Secretary of State, initially Vince Cable, or advance to the Secretary of State the argument that jobs and investment should be taken into account along with other factors, which were their responsibility. I never got the opportunity with Mr Cable, because he disappeared from the scene for reasons you know about, and as it happens, I didnt get the opportunity with Mr Hunt either, but I was certainly of a mind that I wanted to put forward the position that jobs and investment was an important criteria which should be taken into account, and the meeting with Mr Murdoch in January which followed on a phone call in November, I dont have a date for it, was because I wanted to hear in more detail the connection between the European digital platform investment argument and what the consequences might be for Scotland in that respect. So I was prepared to make that argument and if the circumstances had arisen, then I would have made it. 6.7 To return to the question of Mr Salmonds understanding of his role and duty, he made clear that he accepted that he knew that Dr Cable and then Mr Hunt were fulfilling a quasi-judicial role and had to make their decision insulated from the considerations which Mr Salmond had intended to raise. Even this knowledge would not have stopped him from trying to advance considerations which would have led the decision maker into error had they been heeded:472 Q. Were you advised that Dr Cable was occupying a quasi-judicial role and that he had to make the decision insulated from the sort of considerations you might have wished to bend his ear about? A. Yes. He was; I wasnt. Interestingly, as I said earlier, I dont have responsibility for competition, I dont have responsibility for plurality in the media. I do have responsibility for jobs and investment in Scotland, and the ministerial code, which
471 472
p56, lines 3-23, Alex Salmond, ibid pp68-70, lines 2-4, Alex Salmond, ibid; see also pp82-84 on the question of Mr Salmonds understanding of the Enterprise Act and quasi judicial decision making
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we may discuss later in terms of politicians and their inter reaction with businesses in Scotland. 9.29 of the Ministerial Code of Scotland actually makes the point exactly: However, nothing in this code should be taken as preventing ministers from fulfilling their proper function of encouraging investment and economic activity for the benefit and prosperity of the people of Scotland. Because within the terms of our remit and responsibilities, what is my responsibility, the governments responsibility obviously takes pre-eminence. And across a whole range of issues, whether it be banking reform or oil taxation would be another issue where we dont currently at least have competence, we nonetheless make an argument from the Scottish interest, and while Mr Cable or Mr Hunt, however they understood it, and Im sure they did, were in a quasi-judicial capacity, I wasnt. My capacity was quite clear and my ability to represent was also quite clear. Q. I hadnt considered that provision in the Scottish Ministerial Code before but I question, Mr Salmond, whether a very general provision of that nature would entitle you, if I may say so, to interfere with a quasi-judicial function which fell to the duty of the Secretary of State in London to discharge. A. Well, in that case, can I give you a different example entirely where a very controversial well-known example, where my colleague Mr MacAskill, the Justice Secretary of Scotland, was taking a quasi-judicial decision on the compassionate release of Mr al-Megrahi, and indeed on the application for prisoner transfer, where although he was in a quasi-judicial role he invited opinion and evidence, including opinion and evidence from the United Kingdom government. In the event, they for their own reasons decided not to submit it, but our understanding certainly in Scotland, and Im actually pretty certain its the same here, is that people are able within their responsibilities to make representation. It is for the Secretary of State or the politician concerned who is operating in that capacity to make sure that they stay within the bounds of their responsibilities. 6.8 Paragraph 9.29 of the Scottish Ministerial Code, 2011 edition, is a part of a section on Travel by Ministers and falls under the subheading Contact with Commercial Companies. It concerns the promotion of products and services by association and attempts to influence public sector procurement and falls to be read in that context. It states:473 Ministers should also avoid promoting an individual companys products or services by association. They should also bear in mind public sector procurement procedures and resist any attempt to influence them in favour of particular products or services. If such attempts are experienced, Ministers should report these to the Director of Procurement. However, nothing in this Code should be taken as preventing Ministers from fulfilling their proper function of encouraging investment in economic activity to the benefit and prosperity of the people of Scotland. 6.9 The Scottish Ministerial Code starts with the following two paragraphs concerning General Principle and Ministerial Conduct:474
p39, http://www.scotland.gov.uk/Resource/Doc/364058/0123666.pdf pp8-9, paragraphs 1.1 and 1.2, Scottish Ministerial Code, 2011 edition, http://www.scotland.gov.uk/Resource/ Doc/364058/0123666.pdf
474
473
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Scottish Ministers are expected to behave in a way that upholds the highest standards of propriety. The Ministerial Code should be read against the background of the overarching duty on Ministers to comply with the law, including international law and treaty obligation, and to uphold the administration of justice and to protect the integrity of public life. 6.10 On 11 February 2011 Mr Michel met with Mr Salmonds adviser. The resulting report from Mr Michel to James Murdoch is consistent with Mr Salmonds evidence that he was standing ready to speak to Mr Hunt. It also indicates that newspaper coverage and the potential for a televised First Ministerial debate were discussed on the same occasion. The email read:475 I met with Alex Salmonds adviser today He will call Hunt whenever we need him to 1 He noticed a major change in the Suns coverage recently. The Daily Record is running a very personal campaign against him 2 He believes the time has come to organise a First Ministerial debate between him and Ian Gray [Labour leader], who are the two only possible FM candidates. He would be very keen for Sky News to organise it with Adam. There is a timing issue as it would have to be organised before dissolution on 22nd March. (emphasis added) 6.11 Asked about the reference to the Suns coverage in the above email, Mr Salmond pointed out that The Sun did not commit to support the SNP until March 2011, although he seemed to accept that there had been something of a change in The Suns coverage. His evidence was:476 Q. Does that reflect an underlying reality that the Sun was more favourably disposed to you and your party at about this time? A. I dont know. Certainly they werent I think the new editor had probably come in by this time. The Sun had not declared for the SNP at that time... and: Q. I think the gist of your evidence is you wouldnt disassociate yourself from the perception at least Mr Aberdain [Mr Salmonds adviser] had about the Suns coverage; is that right? A. I think we did feel that the new editor was treating things a bit differently, but certainly at that stage there was no commitment from the editor to support the SNP in the election, because that Im sure came later. In fact, it came in March. 6.12 The third and final of three emails from Mr Michel to Mr Murdoch to refer to Mr Salmond in the context of the bid is dated 2 March 2011, the day before Mr Hunt announced that he was minded to accept the UIL in their then form and consequently began the first statutory consultation. It records Mr Salmond expressly seeking help to ensure that The Sun did support the SNP at the then forthcoming election. It also confirms Mr Salmonds continuing willingness to support the bid. Insofar as is relevant, it read:477
p80, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf pp71-72, lines 6-8, Alex Salmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-13-June-2012.pdf 477 p102, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf
476
475
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Alex Salmond called. He had a very good dinner with the Editor of the Sun in Scotland yesterday. The Sun is now keen to back the SNP at the election. The Editor will make his pitch to the Editorial team tomorrow. Alex wanted to see whether we could help smooth the way for the process. ... He also asked whether we could go for dinner at Bute House before the election campaign kicks off on the 22nd March. On the Sky bid, he will make himself available to support the debate if consultation is launched.(emphasis added) 6.13 Mr Salmond confirmed that he had called Mr Michel. The meal to which he referred was one of two meetings which he had had with the editor of The Sun. He had gone to see the editor following his meeting with James Murdoch in January (at which he had met Mr Michel for the first time). When seeking support on that occasion he had been told to go and see the editor. He said that what is recorded in the email as a request to smooth things over was in fact a plea to prevent London vetoing the Scottish editors wish to support the SNP: All I wanted was a lack of influence. I wanted the editorial team were well up for the cup. He denied that discussion of both the bid and political support for the SNP in the same conversation amounted to a subtle and reciprocal exchange of favours.478 The history of Mr Salmonds readiness to intervene in the bid, on News Corps behalf, is of real interest. He stood ready to lobby first Dr Cable and later Mr Hunt, prepared to argue that it would be good for Scotland and Scottish jobs. Had he done so he would have been seeking to persuade a quasi-judicial decision maker to take into account a factor which was irrelevant to the statutory plurality test. Plurality was the only consideration which could legitimately have been taken into account by the Secretary of State. Acceding to Mr Salmonds argument would have rendered the decision unlawful. Mr Salmond adamantly believed that he was entitled to make his case and that responsibility for ensuring that the decision was properly taken rested entirely with the Secretary of State. Mr Salmond is right that legal responsibility for taking the decision lawfully rested with the Secretary of State. But it does not follow that he was entirely at liberty to seek to persuade the Secretary of State into error (particularly, if successful, it could potentially have had the effect of giving rise to grounds for challenge). Neither do I understand how a section of the Scottish Ministerial Code dealing with public sector procurement assists. Mr Salmonds duty to promote the Scottish economy and Scottish jobs cannot sensibly be understood as requiring irrelevant submissions to be made to a quasi-judicial decision maker. The evidence does not go so far as to show either an express or an implied deal between Mr Salmond and James Murdoch trading newspaper support for assistance with the bid. What it did reveal was the way in which Mr Salmond was expressly seeking the support of The Sun in the same conversation as he was repeating an offer to assist with the bid. That occurred in the context of a relationship between Mr Salmond and News Corp which had been warming since 2007 and was continuing to do so. Mr Salmonds readiness, when the subject was first raised in November 2010 and thereafter, to stand ready to assist News Corp is striking.
6.14
6.15
I
6.16
pp73-82, Alex Salmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-AfternoonHearing-13-June-2012.pdf
478
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6.17
I have absolutely no doubt that Mr Salmond was motivated by an anxiety to help Scottish employment and to benefit Scotland generally: that is entirely laudable and exactly what is the expectation and proper function of the First Minister. How far that should be taken, however, is another matter. He appreciated that employment whether in Scotland or elsewhere was not a relevant consideration for the Minister and, in fact, he never contacted either Dr Cable or Mr Hunt to argue the contrary. Judged by what he did, as opposed to what he said he was prepared to do, therefore, he cannot be criticised.
Conclusion
6.18 The handling of News Corps 2010 bid for BSkyB proved to be an illuminating case study, highlighting the difficulties which politicians face when dealing with acutely sensitive media issues, in this instance a plurality decision. The picture which emerged, at a macro level, is of a swing from the clear perception of bias against News Corp on the part of Dr Cable in the comments he made to his constituents to a highly unsatisfactory course of communications between Mr Michel and Mr Smith on Mr Hunts watch which itself risked a finding of apparent bias in favour of News Corp. It involved political lobbying by News Corp, wholly without regard to the restricted ambit of the plurality test, and at least one politician expressing himself to be standing ready to lobby on grounds that he was aware were legally irrelevant but served his (entirely legitimate) political interests. Had the bid not failed for other reasons, Mr Michels activities, of which James Murdoch was aware, would have put at risk a favourable decision, had one materialised. In that respect not only was their activity misguided, it was also ultimately contrary to the interests of News Corp. It is also highly material to issues concerning the relationship between the development of policy (where we depend on the democratically elected politicians and Government) and those who are in a position to use their powerful megaphones to advance causes which they support, namely the press (not, of course, constrained by the requirements of impartiality imposed on broadcasters). As I have made clear, dialogue between politicians and the press is greatly to the benefit of our democracy and entirely in the public interest. Where the public interest and private media interests can collide, however, care must be taken to ensure that the former prevails and the latter is recognised for what it is. The difficulties which the politicians concerned had with this bid gives pause for thought as to whether and, if so, in what capacity politicians ought to be involved in media plurality decisions. It is a question on which the Inquiry heard the views of both Dr Cable and Mr Hunt. Dr Cable thought it right that politicians ought to be involved.479 Mr Hunt believed that it was possible to set aside political and personal views but believed that, by taking and publishing advice, he had applied a valuable lock to the process with which to help safeguard it. He could, in practice, only depart from the advice if he could convincingly and publicly explain why.480 A detailed consideration of the issues relevant to plurality is described elsewhere in the Report481 and the issue is not, therefore, taken further in the concluding part of the analysis of the bid by News Corp for the remaining shares in BSkyB. What this analysis does reveal, however, is that a new approach is essential. Repetition of the problems which arose on this bid is undeniably not in the public interest.
6.19
6.20
6.21
pp72-84, Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-30-May-2012.pdf 480 pp95-103, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-AfternoonHearing-31-May-2012.pdf 481 Part I, Chapter 9
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CHAPTER 7 FURTHER POLITICAL PERSPECTIVES ON RELATIONSHIPS WITH THE PRESS

1. Introduction
1.1 Having briefly reflected on relationships between politicians and the press from the perspectives of our last five Prime Ministers and brought the narrative up to the present, I turn in this Chapter to the viewpoint of a number of politicians currently occupying senior positions in UK national life, whose perspectives were of particular interest to the work of the Inquiry. The evidence of the Rt Hon Theresa May MP, the Home Secretary, is covered in Part G of the Report. Having concluded the last chapter with the perspective of the current Prime Minister, I turn next to the views of the Deputy Prime Minister, the Leader of the Liberal Democrat party, before moving on to consider the views of the Leader of the Opposition and of the First Minister of Scotland. The section concludes with the evidence of a number of contemporary Cabinet Members about their relationships with senior figures in the press. The Inquiry benefited greatly from all of these unique perspectives. As set out below, the personal experiences and approaches of some of these witnesses to handling relationships with the press were of particular interest in themselves. It is inevitable that I have been highly selective (although, I hope, fair) in highlighting a very few aspects of the evidence which appear to me to be of particular interest for the purposes of the Inquiry. I have also largely confined myself to the words of the witnesses, rather than upon any commentary or debate about their perspectives either as received by the Inquiry or which have emerged elsewhere. Again, there is no need for me to do so, and there are other places (not least Parliament and the press) in which the contest of perspectives about these matters can be seen and understood more fully by the public than in the pages of this Report.
1.2
1.3
1.4
2. The Deputy Prime Minister, the Rt Hon Nick Clegg MP

2.1
Mr Cleggs evidence was of value not only from the perspective of his current senior position in the coalition Government, but also as leader of the UKs third party. Over the period considered in the previous Chapters of this Report, the Liberal Democrats and their predecessor political organisations, being neither in Government nor in the position of Official Opposition party, could be expected to have had a very different experience of personal relationships at senior levels between the political leadership and senior figures in the press. Mr Clegg reminded the Inquiry that the Liberal Democrats had never been politically supported by any of the News International titles, and had enjoyed express endorsement, only in recent years and to a degree, from The Independent, the Guardian and the Observer. He also reminded the Inquiry of his highly personal experience of press coverage in the run-up to the 2010 general election.
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Chapter 7 | Further Political Perspectives on Relationships with the Press
2.2
Mr Clegg underlined that, in these historical circumstances, he regarded himself and his party as removed from the sort of relationship others might have had, with News International in particular.1 He said this about relationships between politicians and the press more generally:2 But its really at the end of the day for politicians to stand up for themselves and say: look, we have a democratic mandate, weve gone out to get elected, we listen to our constituents in our surgeries every Thursday, Friday, Saturday. The editors, the proprietors dont do that. We get out and about in the country much more, by the way, than many of the journalists who constantly pronounce on the state of the country. I just think a bit of an assertion of the legitimacy of politicians to make decisions in their own right, unfettered, unintimidated, unpressured, would probably go further than almost anything else in making sure the balance is correctly set.
2.3
Mr Clegg emphasised the sheer importance of interaction between press and politicians:3 I cant stress enough the idea that politicians and the press should operate in hermetically sealed silos separate from each other is completely unrealistic and its totally right they should seek each other out. Its just the manner in which they do so and the spirit in which they approach each other.
2.4
He also underlined the value of the press acting as a very important corrective in the political system,4 putting that in context in this way:5 I think the balance to strike, however, is to make sure that politicians are not too how can I put it? Not too weak-kneed in face of pressure which they dont agree with or is unwarranted or is unjustified in a mature democracy. The pressure is one thing. Intimidation is another. And I think its very important to point the finger not just at the press but the political class. The more the political class allow themselves over time to be intimidated or cajoled or pressured, of course the more it becomes a selffulfilling prophecy.
2.5
Mr Cleggs advice to the Inquiry was to recommend a series of quite precise proposals which would not be the subject of endless political argy-bargy and would stand a good chance of cross-party support.6 He underlined, in addition, that the future for press standards has to be independent regulation, independent of government, Parliament, politicians and the media, with teeth;7 he saw independence from both press and politicians as important, in other words, for a proper and effective system of press standards which would command public confidence.
He illustrated this memorably by reference to the seating plan at a dinner in December 2009: p27, lines 16-17, Nick Clegg, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-Morning-Hearing-13-June-2012.pdf 2 pp94-95, lines 13-1, ibid 3 p9, lines 20-25, ibid 4 p2, line 22, ibid 5 p3, lines 2-12, ibid 6 pp87-88, lines 6-2, ibid 7 pp80-83, lines 16-3, ibid
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3. The Leader of the Opposition, the Rt Hon Ed Miliband MP

3.1 In his interviews and public statements following the phone-hacking revelations in July 2011, Mr Miliband acknowledged that politicians had become too close to News International. He was asked in oral evidence to explain precisely what he meant by that, and he said this:8 Ive obviously read a lot of the evidence youve had and thought a lot about this. I think the way I very specifically view this I believe the thing Im looking for is the interview I gave to Andrew Marr, actually, just after the phone hacking Milly Dowler scandal broke, because I believe I said in that interview that we were too close, in the sense that it meant that when there were abuses by the press, we didnt speak out. That is my version of too close, my view of the consequence of too close. Now, different people the reason I say I refer to your other evidence is different people have used different phrases for that word. Mandelson said cowed, Tony Blair said unhealthy. Theres a whole range of other adjectives that have been used. I suspect they may be more accurate as ways of thinking about this issue, that it was a sense of fear, I suppose, in some sense, or unwillingness or worry, anxiety about speaking out on those issues, issues that were affecting ordinary members of the public, issues where I think that if it had been any other organisation in another walk of life that had been perpetrating some of what happened, action would have been taken earlier. 3.2 I made a connection between this analysis and some of the evidence I had heard from previous Prime Ministers, including Sir John Major and Mr Blair. The latter, for example, explained that for him too close should not necessarily be taken to suggest something which was amicable and collaborative; the power of the press was also experienced as something creating a degree of circumspection in dealing with matters affecting the presss own reputation and commercial interests. I understood Mr Milibands comments in that context; that this experience of the power of the press led to a correlative reticence in politicians, an unwillingness to speak out about problems in the culture, practices and ethics of the press, including those exposed in evidence to the Inquiry. Mr Miliband was including himself in that analysis.9 He said that when senior politicians did decide to speak out, this was perceived as crossing a Rubicon because this would be seen by News International as pretty much an act of war.10 His assessment was that issues of power and influence could not be divorced from issues about the concentration of market share in a limited number of hands and the associated megaphone effect, and that issues of press misconduct equally could not be divorced from the fact of economic power, since it created:11 ...[a] sense of power without responsibility, which is what I believe it was, came from the fact that they controlled 37 per cent of the newspaper market before the closure of the News of the World, and I dont think we can divorce these questions of ownership, quasi-monopoly et cetera, from or at least concentration of power, better put than quasi-monopoly concentration of power I dont think we can divorce those questions from the behaviour of some parts of the press. And add in, by the way, the Sky platform, which then became and Sky. All that became an issue
p28, lines 2-24, Ed Miliband, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-12-June-2012.pdf 9 p3, lines 2-4, ibid 10 p44, lines 8-10, ibid 11 pp17-18, lines 11-1, ibid
8
3.3
1416
around BSkyB, but I think that is a big concentration of media power, and I think part of the arrogance and I use the word advisedly; in a way, its a mild form of the word I might use came from that. 3.4 He set out his commitment to do everything in his power to seek to work on a cross-party basis to ensure that the Inquirys recommendations provided a basis for the future of press regulation. As he put it:12 I think we have a huge responsibility and I want to say, really, echoing something you said at the beginning of this week and something that Tony Blair said in his testimony, that for any Prime Minister this is going to be very difficult and I want to say that I will do everything I can to seek to work on a cross-party basis so ensure that your recommendations provide a framework for us for the future. 3.5 On the question of his personal approach, Mr Miliband was asked about his dealings with Mr Murdoch and in particular his attendance at the News International summer party on 16 June 2011. He said this:13 I say I recall a relatively short conversation with Rupert Murdoch for a few minutes at the summer party. I believe it was about US politics and international affairs, and I believe I should have raised the issue of phone hacking with him. I didnt, which is something I think I said last summer. 3.6 In his written evidence, Mr Miliband was asked to explain the circumstances in which he hired Tom Baldwin as Director of Communications of the Labour Party on December 2010. Mr Baldwin had previously worked at The Times for about 11 years. Mr Milibands explanation was as follows:14 A number of candidates were considered. In respect of the role which Tom was appointed to fill we were looking for someone with significant experience as a journalist, with an outstanding understanding of the world of politics, and, crucially as far as I was concerned, with a genuine commitment to the values of the Labour Party. My then Acting Chief of Staff, Lucy Powell, and I spoke to a number of colleagues, associates and others in whose judgement we had confidence including fellow politicians and media experts in connection to Tom, and other candidates, suitability for the role(s) prior to appointing him. At no point did anyone raise concerns about Toms journalistic integrity. Indeed the opposite was the case ... Tom Baldwins connection to News International was as an employee of Times Newspapers Limited in which News international has a controlling interest. He was not someone who had close or privileged relationships with the senior executives at News International. His connections with News International played no role in, and had no significance for, his recruitment. He was employed for his skills and his commitment to the Labour party. Neither I nor my Chief of Staff had any conversations about Toms recruitment with executives of News International. Before offering Tom Baldwin the job he and I discussed whether there were any reasons why his appointment could be the cause of any embarrassment to either me
pp3-4, lines 24-2, ibid p34, lines 16-22, ibid 14 pps 9-10, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-EdMiliband.pdf
13 12
1417
or the Labour Party. This discussion included the references to Tom Baldwin in Lord Ashcrofts book Dirty Times, Dirty Politics which was first published in 2005. I should underline that the book contains no allegations linking Mr Baldwin to the unlawful and unethical acquisition of information. Lord Ashcroft refers in his book to Tom Baldwin being given information about some of Lord Ashcrofts financial affairs some time after its acquisition by Times Newspapers in defence of a legal action against the paper by Lord Ashcroft. The more serious allegation that Tom Baldwin had himself commissioned the blagging of this information was made only subsequently by Lord Ashcroft in a blog in summer last year when Tom Baldwin had already been working for me for six months. When this was raised with Tom Baldwin (including by me) he made it absolutely clear that it was entirely false. My Acting Chief of Staff followed up with the Editor of the Times at the time of the events Lord Ashcroft describes Sir Peter Stothard. He made it clear that in his view Lord Ashcrofts allegation was false. He went out of his way to praise Tom Baldwins professional integrity and journalistic acumen.
4. The First Minister of Scotland, the Rt Hon Alex Salmond MSP

4.1 As I have explained,15 although the remit of this Inquiry extends to all parts of the UK, I have not sought to make any recommendations of exclusive application to Scotland (or indeed Wales or Northern Ireland). As for Scotland, the pattern of devolved and reserved competence in media matters in Scotland is not straightforward. For example, broadcasting regulation and competition rules in Scotland fall to be dealt with on a reserved basis (that is on a UKwide basis, with decision-making resting with the UK Government and Parliament). Press standards, and the commercial interests of the press more generally, fall to be considered on a devolved basis: the Scottish Government and Parliament can choose either to make their own policy and law for national application or to support a UK-wide approach. What follows must be considered with that in mind. Mr Salmond was asked about his expectations from the Inquiry in terms of the application of its recommendations to Scotland. He said this:16 Well, I think that rather depends on what the Inquiry comes up with, Mr Jay. If the Inquiry comes up with a proposition which accords with public support, which is eminently sensible and points the way to a better future, then I think the Scottish Parliament would be very foolish not to pay close attention to it. If on the other hand, which I dont believe for a minute will happen, it came up with a solution which was either over-prescriptive, restricted press liberty, then I think the Scottish Parliament might wish not to apply that. So I think that rather depends on the proposition that emerges from this Inquiry. I wish you well in the deliberations and I assure you were looking with enormous interest. 4.3 Mr Salmond said this, by way of his general views on his personal approach to relationships within the press:17
4.2
See Part A Chapter 4 p9, lines 8-21, Alex Salmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-13-June-2012.pdf 17 pp26-27, lines 13-3, ibid
16
15
1418
Q. ... [s]o are we to understand by that that you will seek to persuade newspapers to modify their editorial or reporting stance to reflect the interests of either yourself or your party? A. Oh yes. I mean, I dont know of any politician Ive ever come across who well, if anybody doesnt answer yes to that question, they certainly shouldnt be under oath at an Inquiry. All politicians try quite legitimately and properly to influence newspapers to treat them or their party, or in the case of myself, their cause of Scottish independence, more favourably. Thats not the only reason for meeting editors. Often there are meetings about specific issues, specific campaigns, things that are important to that newspaper or important to the government, and a range of these meetings would be covered by that category. 4.4 Mr Salmond spoke about his relationship with Rupert Murdoch: they had evidently made significant personal connections. They shared Scottish roots and heritage. Mr Murdochs grandfather was a Church of Scotland Minister within Mr Salmonds old constituency. Mr Murdoch told the Inquiry that he was intrigued by the notion of Scottish independence, and it is also clear that, over time, he came to be impressed by Mr Salmonds ideas and political acumen. The personal element of the relationship evidently dated from relatively recent years. Mr Salmond told the Inquiry that he recalled one telephone conversation with Mr Murdoch in November 2000, shortly after the US Presidential election, but that there was then no personal contact between them for nearly seven years. The Scottish Sun, a News International title, was anti-SNP at the 2007 election (as indeed was the Daily Record). Mr Salmonds relationship with Mr Murdoch changed after the 2007 election. Bearing in mind the public interest in the transparency of relationship between senior politicians (particularly in government) and senior figures in the press, on 4 August 2011 Mr Salmond had volunteered to publish a list of his meetings with newspaper proprietors, editors and media executives over the preceding years.18 This list, together with more recent evidence to the Inquiry, shows that Mr Salmond and Mr Murdoch met on five occasions over a five year period. The tone of these meetings was said to be warm and friendly.19 Mr Salmond also had two meetings with James Murdoch.20 It is apparent from the evidence that these meetings and conversations covered topics such as common heritage, the issue of Scottish independence, and (although the evidence was less clear about this) corporation tax rates in Scotland. Doubtless Mr Salmond had the opportunity on these occasions to explain to Mr Murdoch the advantages, as he saw them, of Scottish independence to the latters commercial interests. He also invited Mr Murdoch to sporting events and the theatre. Significantly, on Mr Murdochs side there was an invitation for Mr Salmond to be the guest of honour at the formal opening of New Internationals Eurocentral printing plant on 30 October 2007.
4.5
4.6
4.7
4.8
p23, lines 20-24, ibid p47, lines 3-8, ibid. See also p19, line 17, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/04/Transcript-of-Afternoon-Hearing-25-April-2012.pdf 20 p52, lines 16-22, Alex Salmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-13-June-2012.pdf
19
18
1419
4.9
BSkyB is a significant employer in Scotland, directly responsible for 6,000 full time jobs and 2,000 outsourced and temporary jobs. Some 36% of BSkyBs total global employment is in Scotland.21 Mr Salmonds support for Mr Murdochs bid to increase his holdings in BSkyB is discussed elsewhere:22 it is clear that he was prepared to lobby UK Ministers in furtherance of News Corps case. He said that that was with the motive of furthering Scottish economic interests, including investment and employment opportunities.23 Mr Salmond was also hopeful that The Scottish Sun would support him in the May 2011 election, and his evidence was that the issue was raised with the Murdochs, for him to be told by them that it was a matter for the editors:24 Q. Did you ever discuss with Rupert Murdoch or James Murdoch support by their newspapers in Scotland for your party? A. I find certainly with Rupert Murdoch and with James Murdoch as well that if you do that, what theyd say was, Go to the editors, and thats what they say, so you just assume thats whats going to be said, and theyre perfectly right to say that and therefore thats what Ive done. Q. Can we be clear on how many occasions then you have raised the issue with Rupert Murdoch and James Murdoch? Are you able to assist us? A. I wouldnt explicitly raise it at meetings necessarily, because theyd always say, Go to the editors. That certainly was Rupert Murdochs practice, and I cant even remember, it may have cropped up in a James Murdoch meeting, but if so, he would say, Go to the editors, and go to the editors I did, as I say, sometimes successfully and sometimes not. Q. But that answer presupposes that you made a direct request statement to James Murdoch or Rupert Murdoch, Would your papers support me? and their answer is always, Go and speak to the editors; is that right? A. No, I dont think Ive ever done it explicitly like that. It would be something like, I take it I have to go and speak to the editors to get support for my point of view. Much more like that. Its chicken and egg. Thats been the position certainly throughout not just in the meetings Ive had with Rupert Murdoch more recently in the last five years, but even if we go back to 2000, 2001. I mean, I cant speak for other peoples experience, but thats been consistently what he says, so you just accept thats what hes going to say and therefore you anticipate that, so you dont actually I dont think Ive ever explicitly asked him for support for the party because the answer would be, Go to the editors and argue the position.
Q. In your witness statement, the way you formulate it at 13987, eight lines from the top of the page, you say quite generally: In relation to questions about support from particular titles, any such discussion with Rupert or James Murdoch was always met with a request to talk directly to the relevant editorial team. So youre making it clear there that if or rather when you raised such a request with Rupert or James Murdoch, they told you to go and speak to the editors? A. I refer back to what I said a couple of minutes ago. I think probably the way I put it was I take it I should go and see the sub-editor or go and see the Times editor or go and see the Sunday Times editor.
21 22
p53, lines 14-19, ibid Part I, Chapter 5 23 p56, lines 13-16, Alex Salmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-13-June-2012.pdf 24 pp58-60, lines 12-14, ibid
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4.10
It was also put to Mr Salmond that the editorial direction for The Scottish Sun came from Rupert Murdoch. His answer was:25 Not according to Mr Murdoch. Mr Murdoch would say he was maybe part of discussions, but it was up to the editors. He would always say that.
4.11
In early March 2011 Mr Salmond made his pitch to the editorial team of The Scottish Sun,26 and support from that paper was forthcoming later that month. Although Mr Salmonds understanding was that Mr Murdochs editors rather than Mr Murdoch personally would decide which party to support, Mr Murdochs evidence to the Inquiry was that, although he could not recall the matter specifically, The Scottish Suns decision was one to which he contributed, and he was also able to explain the basis for it.27 Immediately after the general election the editor, Mr Dinsmore, wrote a personal letter of congratulation.28 The relationship between Mr Salmond and Mr Murdoch after the 2007 Election came to be one of mutual respect and admiration, notwithstanding the fact that it was not built on frequent interactions between the two (very busy) men. Mr Murdoch could no doubt appreciate that he was dealing with a politician of considerable skill, resource and intelligence, and he may also have felt, and perhaps continues to believe, that the aims of the SNP are consistent with the long-term objectives of both News International and News Corp in Scotland. Mr Salmond clearly saw the advantages of securing political support from News International and The Scottish Sun, notwithstanding that the 2007 election had led to his becoming First Minister of a Coalition Government without support from The Scottish Sun or the Daily Record; and he would no doubt wish to do all that was properly within his power to achieve that. Mr Salmond had been particularly keen to ensure that the Terms of Reference for this Inquiry should make explicit reference to the missed opportunity afforded by Operation Motorman to address problems in the culture, practices and ethics of the press. He said this:29 Well, I am concerned with it because I think theres a connecting thread which is that what seemed to me to be substantive evidence of illegality or illegal practices which was contained in the Information Commissioner the English and Welsh Information Commissioners report, Richard Thomas, I think, of December 2006 had been not left unlooked at because there had been a limited number of prosecutions, but even, for example, his proposal that breaches of data protection should be an indictable offence, as we call it in Scotland, and its the same in England, you know, had been left, and most recently the revelations on hacking, I mean the connection is obviously that there was a substantial body of evidence that there had been a sequence of perhaps systematic illegal practices going on, and the response of the law and those who have responsibility for pursuing these things, whether the police or the prosecution services, had not been adequate, and therefore I suggested to the Secretary of State that an explicit reference in the terms of reference to Operation Motorman would be helpful in making it clear that this was one key aspect, I hoped, of the Inquirys consideration, and now as it happens, as you know, it was argued to me that it didnt have to be explicit because it was already implicit within the terms
4.12
4.13
25 26
p61, lines 10-12, ibid pp63-64, lines 22-2, ibid 27 p22, lines 7-17, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-25-April-2012.pdf 28 p23, lines 7-20, ibid 29 pp94-96, lines 1-7, Alex Salmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-13-June-2012.pdf
1421
of reference and fair enough . I was really thinking of illegal practices. I think its possible to consider clearly this Inquiry is considering practices which are improper but not necessarily illegal. I mean, there are ways to access peoples data which are not illegal and it might be argued thats a perfectly proper way to do things. You might but I wouldnt put my senses on that. I was really driving at the illegality as opposed to the propriety. 4.14 Mr Salmond had this to say about the future:30 First, and I would give primacy to this, is to uphold the law. I think its my view is its extraordinary of the various aspects of this that Ive spoken about that an assumed illegality can have been taking place on a huge scale and nothing substantial done about it. I made the point earlier about the lack of information that had been given to the Scottish authorities, which I feel very angry about. I can give you the assurance thats been given to me by the Lord Advocate that the criminal law will be upheld in Scotland without fear and favour, and Im sure, given the circumstances in which this Inquiry has come into being, that will now be the case everywhere, but it has to be the case because, unless thats the case, nothing else thats suggested I go back to the point a voluntary or even a statutory code is not going to be enforced or enforceable if the criminal law is not being enforced and enforceable so I think its absolutely invites that thats first in my hierarchy. Secondly and maybe this is maybe why you think Im a minimalist in this matter I think the freedom of the press is important not just as a matter of practice but as a matter of principle. And while I salute and applaud those newspapers like, for example, the ones I mentioned in DC Thomson and there are others, who make an absolute virtue of saying, look, comments are in our editorial or in our columnists, fact is in our news columns. Thats great, but it may be desirable but not only is the impossible to implement, in my opinion, this division between fact and comment, I actually do think there is a freedom for people within the law, the laws of not inciting hatred, to conduct themselves in a biased manner. It was Lord Northcliffe, wasnt it, who the phrase the daily hate was attributed to, but whether its hate or bias, whatever you want to call it, I think thats a price we have to pay for the essential freedom of the press and you cannot have a free press which does what you want it to do, which always behaves itself. It has to behave itself within the law and within certain norms, which Im going to come onto in a few seconds. Thirdly, in terms of redress from well, the redress for illegal behaviour is clear enough, that should be a matter for criminal law to enforce that, but from other behaviour which might not be illegal but be wrong, then certainly on that, the redress must be open to all. There has to be the ability of individuals or groups, in my opinion, to seek redress in an effective manner they can have confidence in. Rich people and powerful people will always have the civil courts and actions that they can pursue, but to be proper, the redress must be open to all. Fourthly, politicians. I think the move towards transparency is a good thing for both government and opposition politicians. I think the abidance by the Ministerial Code is the Ministerial Codes are there for a reason and the reason I cited you to Scottish Ministerial Code is because we pay it close attention and so politicians and relationships should be guided by transparency in terms of what is now being done by everyone LORD JUSTICE LEVESON: Is the Scottish Code in your exhibits?
30
pp98-101, lines 9-14, ibid
1422
A. I cited it earlier on, sir. If we havent made it an exhibit, then I shall make sure it is done. LORD JUSTICE LEVESON: Id be grateful if you could send me a copy. A. And obviously the differences would tend to be it stresses areas where the Scottish ministers have particular competence, like the one on jobs and investment that I read out to you. But following the Ministerial Code is my fourth point.
5. The Rt Hon Kenneth Clarke QC MP

5.1 Kenneth Clarke QC MP provided a number of different perspectives. In particular, as Lord Chancellor and Justice Secretary at the time, his Cabinet portfolio included a number of matters of central concern to the Inquiry, including substantive and procedural law on both the civil and criminal sides, access to justice more generally, and data protection law and policy. He said this about the political response to Operation Motorman:31 That was the startling thing, but I dont think you can put that down to the Information Commissioner. The Motorman reports were pretty startling, and rather going back to what I said before, what is known in the bubble and whats known outside, I think every knew that private and confidential information was fairly readily available in the outside world as long as you were prepared to pay for it, and the Commissioner produced these two reports and not much was done about it, but it goes beyond, I think, just the penalties and the powers of the Information Commissioner. Q. You say not much was done about it. What other reasons do you think exist for why not much was done about it? A. Well, its no good mentioning my pet theories because I dont know for sure, but what this Inquiry is looking into, how far was it a desire, for one reason or another, not to upset the people who were happily indulging in all this? I wont go further. Its not totally new, all this. When I was first appointed Chancellor of the Exchequer, I had to move my bank account because my bank complained to me that journalists were trying to bribe the staff of the village branch where I had my bank account. It would have been regarded as perfectly customary in those days, I think particularly as the Chancellor of the Exchequer who had been appointed had views which werent shared by some the editors of the more vigorous newspapers. So that and various other things happened. And in business everybody was perfectly well aware that if you wanted to engage in these sort of practices, it was terrible easy to get details of the private information of your competitors or rivals, and journalists joined in the same thing. The scale of it appears to become startling. Motorman sort of made people aware this had now grown to a very profitable and large industry, and even following through the newspapers the evidence given to this Inquiry, the scale has certainly shocked me, when I would have thought I was fairly worldly wise on the subject in previous years, but I had no idea it was going on on this monumental scale. 5.3
31
5.2
Mr Clarke spoke in these general terms about relationships at senior levels between the politicians and the press:32
pp26-28, lines 13-4, Kenneth Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-30-May-2012.pdf 32 pp50-51, line 3-15, ibid
1423
Well, what falls in force with your remit is as it were the proprietors of it, isnt it? I mean, how far is undue influence being exercised for commercial, well, political, other reasons? The politics are quite difficult because in the end it is for the politicians to decide how far theyre going to allow a particular powerful group to influence policy. If Im sounding every democratically elected politician in every part of the world Ive ever known easily falls to criticising the press, so if I sound as if Im criticising the press, my criticisms are actually aimed equally at the ministers. LORD JUSTICE LEVESON: I understand that. A. When taken to excess, this terror of the tabloids and this subservience to the media doesnt give any success to the politician who does it. You may win some temporary praise, but you make stupid decisions in government and they turn on you eventually when it starts to fall apart. You still come to the same ruin in the end unless you actually make a decent fist of the good governance of the country. ... Well, in my opinion the power of the media has grown, is excessive, and ought to be diminished, although I think the remedy is as much in the hands of the politicians as others. On the other hand, I still want to have a free media, an aggressive media, an irreverent media, and one that continually questions the governments own estimate of itself, so you have to get the balance right between those two. 5.4 Of particular interest was the example that Mr Clarke was able to provide relating to criminal justice policy over recent years which, in his view, has been a response to tabloid newspaper complaints.33 Overall:34 If the tone of the newspapers had been different for the last 15 years, wed probably have 20,000 fewer prisoners in prison. I hasten to add thats not a scientific estimate, its just a way of illustrating my opinion. 5.5 He also challenged the theory that the endorsement of political parties from time to time by The Sun really made much difference to the political fortunes, since Rupert Murdoch and his newspaper tended to align themselves with perceived winners and to change sides when it was obvious that the horse theyre riding is about to collapse.35 On the way forward on press regulation, Mr Clarke observed:36 I think were all agreed, I dont know, youve had many witnesses now, that whoever the regulator is must be totally independent of both government and press in their activities, that they should have some authority, and the ability to require the relevant media organisations to subject themselves to the authority, and that they should have the power to impose penalties so there is some practical effect. Financial penalties, I imagine, the most part. Its when they break the criminal law, it should go off to other courts and other jurisdictions to deal with that. If that needs statutory underpinning because you wont get everybody to produce something like that and join something like that, submit to something like that and comply with something like that, then youre going to need statutory underpinning...
5.6
33 34
p55, lines 20-22, ibid p58, lines 8-12, ibid 35 p54, lines 8-12, ibid 36 p64, lines 4-19, ibid
1424
5.7
Mr Clarke subsequently reverted to the Inquiry in writing on 26 July 2012.37 Of particular value was his comment about the care needed when considering remedies for press misconduct in the wider civil law context, and his view that a measure of statutory underpinning for a new regime would not be the freedom of expression Armageddon some commentators would have you believe.38
6. The Rt Hon Michael Gove MP

6.1 Mr Goves perspective is interesting in two principal respects. First, he is both a senior politician and a former journalist (including having been news editor for The Times). Second, in his capacity as Secretary of State for Education, he had also had some experience interacting with senior News International interests on public policy issues within the remit of his Department. From the perspective of his experience in journalism, Mr Gove offered some insights into the relationship between politicians and the press. He said this:39 I can quite understand why Lord Mandelson thought that the relationship between politicians and journalists was a purely transactional one. I prefer to think of the relationship between politicians and journalists as being nuanced and multi-layered. Sometimes it will be the case that some politicians will regard their interactions with journalists in a transactional fashion, but it can also be the case that friendships can arise and it can certainly be the case that politicians can understand the pressures that journalists face in trying to make sure that the public are informed and it can also be the case that journalists can appreciate the pressures that politicians face in trying to make sure that their policy is presented fairly. Q. Thank you. In your view, have we reached the point where the current state of relationships between journalists and politicians is poisonous or close to it? A. No, I dont believe its poisonous. Q. Have we reached anywhere near that point? A. No, I dont believe we have. Of course theres acrimony between some journalists and some politicians as a result of wrongs or perceived wrongs, but I think that the idea that the relationship is poisonous is an overstatement. Q. Are there any aspects of the relationship, if one doesnt like the word poisonous, one might characterise as unhealthy? A. I think its certainly the case that there are sometimes elements of the relationship between politicians and journalists that can be a little rough-edged. I think thats certainly true. And it is also the case that there are some politicians and some journalists who develop, over time, a close relationship, which may not altogether be in the public interest. But in my experience, most politicians and most journalists have a proper sense of the boundaries between each. Q. So a close relationship which may not altogether be in the public interest, why not altogether in the public interest?
37 38
6.2
pp1-4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Submission-from-Kenneth-Clarke-MP.pdf p1, ibid 39 pp2-4, lines 17-11, Michael Gove, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-29-May-2012.pdf
1425
A. It may be the case sometimes that a relationship between certain journalists and certain politicians will involve a journalist or a politician relying one upon the other for confidences which are not always shared with the public at an appropriate time. 6.3 Mr Gove provided his personal view of Rupert Murdoch, with whom he clearly has a close affinity. Initially expressing himself in fairly succinct terms (I think that he is one of the most impressive and significant figures of the last fifty years), he broadened his insights as follows:40 I think that the changes that he made to newspaper publishing as a result of his decision to relocate his titles to Wapping lowered the barriers to entry for newspapers and meant that like the Independent, which would never otherwise have existed, existed, and as a result more individuals have been employed in journalism. Its also the case that his investment in satellite television has also created jobs as well, and I think that its undoubtedly the case that there are few entrepreneurs who have taken risks in the way that he has and therefore generated employment, but also controversy in the way which he has. Q. And the generation of controversy, how does that arise or how has that arisen? A. Its often the case that successful people invite criticism. He has been successful in a particular industry, where there are others who are only too happy to criticise, and they have exercised their liberty to do so. Q. You described him, consistently with the evidence youve just given, as a force of nature, a phenomenon and, I think, a great man. Thats right, isnt it? A. Yes, it is. I enjoyed meeting him when I was a journalist, I subsequently enjoyed meeting him when way a politician and I would also say that as well as having been a successful businessman, I think that the position that he took on, for example, the European single currency, has been vindicated by events. Q. Have you ever expressed a view on the merits of the BSkyB bid, Mr Gove? A. Never to any of my political colleagues, no. Q. So insofar as you held a view about it, by definition it would have been a private view? A. Correct. 6.4 Mr Gove was taken at some length41 through documentary evidence which related to Mr Murdochs interest in investing in free schools and academies, and his own involvement in that project. Some commentators have seen this evidence as a legitimate cause for concern about what may have appeared to be an overly close relationship between Government and proprietors in which matters of Government policy are transacted in the context of friendly personal relationships. Although the evidence was explored in detail with a view to testing that proposition, no substantive grounds for public concern were established. Although Mr Murdochs commercial interests were clearly engaged at one level, Mr Gove expressed a clear view that Mr Murdochs interests, such as they were, in the free school movement were essentially philanthropic.42 In any event, nothing came of Mr Murdochs interest; the project foundered for want of local authority funding support.43
40 41
pp16-18, lines 23-9, ibid pp38-50, ibid 42 p46, lines 10-12; pp49-50, lines 25-9, ibid 43 p42, lines 17-22, ibid
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7. The Rt Hon George Osborne MP

7.1 7.2 Mr Osbornes contemporary involvement in the appointment of Andy Coulson and in the BSkyB bid have been addressed elsewhere.44 Mr Osborne explained that he had a number of good friends who were journalists and with whom he enjoyed political discussion.45 In his written evidence he provided details of his meetings and social interactions with media proprietors and senior editorial and executive staff, between 2005 and 2010.46 Approximately one-third of these were with representatives of News International. Asked, by way of example, about a dinner hosted by Rebekah Brooks on 19 December 2009 and attended by Rupert and James Murdoch, Mr Osborne said this:47 Im sure political matters were discussed. I mean, they normally were. I dont remember any improper conversation or any conversation about the commercial interests of News Corp or News International. I think it was a general discussion about the political situation in Britain as we were heading into a General Election year and indeed the economic situation with the rest of the world. I mean, normally when Rupert Murdoch was at one of these events, the conversation was about the global economy and at the time, of course, we were right in the middle of the financial crisis.
44 45
Part I Chapters 6 and 5 respectively pp69-70, lines 11-23, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcriptof-Afternoon-Hearing-11-June-2012.pdf 46 pp1-27, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Annex-A-to-First-Witness-Statement-ofGeorge-Osborne-MP.pdf 47 p16, lines 2-13, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-11-June-2012.pdf
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Chapter 8 ConClusions and reCommendations

1. Introduction
1.1 The subject-matter of Module Three was the contacts and relationships between national newspapers and politicians, and the conduct of each, considered in the overall context of the culture, practices and ethics of the press. Pausing to take stock, it is first worth restating what context led to the inclusion of this Module in the Inquirys terms of reference. The questions the Inquiry looked at in Module Three were these: was there something amiss in the relationship between the press and the politicians? And if so, was it connected to the current state of press standards? Most importantly, was there a genuine issue of public trust and confidence here which ought to be addressed? Were politicians to any degree a part of the problem of press standards and of public concern about them? The relationship between the politicians and the press is, as I said at the outset, part of the vital lifeblood of democracy. It is also an unbalanced relationship in one important respect: the politicians are directly answerable to the public for it. So in asking the Inquiry to reflect on this matter, it was effectively being directed to the question of whether there has been some shortcoming in the democratic processes of accountability for the relationship. It is important to make that point clear because, in one sense, the politicians made the issue straightforward. The cross-party consensus at the time the Inquiry was set up was, in itself, at least a partial answer to the question of whether there was a legitimate issue of public confidence. The commissioning of a judge-led Inquiry, and particularly an Inquiry running in parallel with extensive criminal investigations, cannot be regarded simply as a matter of placing a complex and sensitive set of policy issues into a forensic context for the purposes of gathering and analysing evidence for future decision making (although it was certainly all of that). At some level, it must also be understood to be an acknowledgment that there would be value in considering the matter, from an independent and objective perspective, removed from the context of Government and Parliament where such matters are more usually considered. In conducting Module Three, I have been very mindful of the responsibility to maintain political objectivity and of questions of public perception. The subject matter is both of real public interest and is also interesting to the public: the evidence ranged over important issues of accountability, and it is clear that the public took a close interest in what witnesses (including some of the leading politicians of our time) had to say about them. In the circumstances, I have sought to ensure a very high level of transparency in all that has been undertaken. This means that everyone can make their own minds up directly, while at the same time reflecting on the political commentary and the mediation of the press. I have also repeatedly emphasised the non-partisan context of the work of the Inquiry. In contrast, the contemporaneous commentary on the evidence was vigorously partisan, as it was fully entitled to be. Among the large number of thought-provoking questions about the relationship between the politicians and the press which were raised in the process, I have had to be highly selective, and so not lose sight of the remit set out in the Terms of Reference.
1.2
1.3
1.4
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Chapter 8 | Conclusions and Recommendations
1.7
My focus in these concluding pages is not on individual politicians or political parties. I have concentrated entirely on long-term patterns of behaviour as they might be perceived by the public, observing from the outside the relationship between the politicians and the press. The evidence contained many examples from which these patterns clearly emerge. No doubt there is unlimited scope for debate and value-judgment about the relative contribution to the pattern of one example rather than another. For my part, however, I do not intend to take any part in that debate. I have also been conscious that politicians (and not only those in Government to whom I formally report) hold the future of this Report in their hands; it is they who must now be finally and fully responsible and accountable to the public for dealing with it. To that extent, I am bringing the story full circle. I have concluded that, in some ways, the conduct of the relationship between politicians and the press has been a part of the problem. Now, however, that relationship has to hold the key to the solution. The problem revolves around one principal public concern; put simply it is that the relationship has become too close. Politicians have used that term themselves and the Inquiry has explored what is meant by it. The definitions and explanations provided have not always been the same, nor, indeed, has been the public perception of this problem. A number of features have been mentioned. First, there is the power of proprietors and the risk that it has, in itself, stifled political comment about the power of the press, contrary to the public interest. Second, there is the question about how politicians have conducted themselves in relation to that power in all its manifestations. Third, the sheer quantity of meetings between senior editors, proprietors and politicians has raised concern about the perception that, on occasion, understandings could have been reached or deals struck well out of public sight. There have been further public concerns. They include first, the issue of failure by politicians to speak out in the face of the growing evidence of criminal wrong-doing and, secondly, that personal relationships and friendships have been allowed to develop, with the risk that appropriate boundaries have become blurred and, potentially, led to errors of judgment. However the term too close is exactly defined, the question has boiled down to this issue: have there been unaccountable exchanges in influence and favours, trading political support and advancement (or the avoidance of political damage) for policies which favour the commercial interests of the press, however defined, or the abstention from policies which would disfavour those interests? Less starkly, but no less important, are there aspects of the close relationship between politicians and the press which should just very simply be less close, or which the public should be able to know more about so that they can make their own minds up about it? Generally speaking, I have considered the issue on a chronological basis, taking the last five Prime Ministers over three periods of time, corresponding with the periods of power of their respective parties, and examining their relationship with the press; and then by scrutinising the issue through the lens of a series of policy and legislative developments, culminating in a close examination of the BSkyB bid. This last episode has been analysed in detail for a number of reasons. First, because of its currency and the quantity of evidence, both documentary and oral, which was brought to bear on it. Second, the story allows a clear focus on a number of aspects of the relationship between the press and the politicians. Third, the evidence available, and the fact that the case involved a decision with a legal (and quasi-judicial) dimension, makes it possible to analyse it forensically.
1.8
1.9
1.10
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1.14
Module Three has also addressed a number of issues in which the press themselves have expressed a particular interest. These include spin, so-called anonymous briefings and the practice of feeding favoured journalists with stories in return for an expectation of a certain type of treatment in the telling of those stories by the newspapers involved. These issues are not central to the work of the Inquiry for a number of reasons. On examination, some of the matters of which complaint is made turn out to fall within the spectrum of what might fairly be described as the rough and tumble of politics and political journalism. Some are inevitably too impressionistic and partial to bear much analysis. And it is also problematic to conceive of any practical recommendations which might be crafted to address these issues. I do recognise, however, that there is a genuine issue of public perception and confidence here, to which the Report can do some service if only by holding up a mirror. The principal focus of Module Three has been the relationship between politicians and News International. This has been inevitable. The Prime Minister, echoed by others, summed up the problem: we all got too close to News International. Mr Murdochs titles still have the largest market share in the UK despite the demise of News of the World, and Mr Murdoch himself has exercised enormous fascination in the public imagination over some 40 years. He has been demonised in some quarters and lauded in others, to the extent that one might be entitled to observe that a moderate view about the man would be unorthodox. Moderate or otherwise, a balanced assessment is required for these purposes in the context of the specific issues which arise under the Terms of Reference. The purpose, therefore, of this concluding Chapter of this Part of the Report is to draw the various strands together and so found an evidential basis and justification for the recommendations that I feel it right to make. I first examine the relationships between the press and politicians specifically from the perspective of the proprietors who gave evidence before the Inquiry: this will be achieved in fairly general terms, because Part I Chapters 2-4 has already addressed these topics in detail, albeit specifically from the perspective of the politicians. I will then set out some general conclusions as to the ways in which the relationship between politicians and the press seems to have fallen out of line with the public interest. Finally, I will draw some wider conclusions which will lead onto my recommendations.
1.15
1.16
2. the proprietors
Rupert Murdoch
2.1 Those who are expecting a series of revelatory insights into the career and personality of Rupert Murdoch will be disappointed by what follows. I say this for at least two reasons. First, as those who have written biographies about him would no doubt explain, the time at the Inquirys disposal to investigate Mr Murdochs lengthy career was limited in comparison with the breadth and depth of exploration necessary for such a subject. There was considerable ground for Counsel to cover and, in addition to pursuing the wider interests of the Inquiry, it was important that Mr Murdoch was able to say what he wanted about the various issues that have cost his company so dear. Second, the Inquiry remains constrained by the ongoing criminal investigations, at least as regards those aspects of Mr Murdochs evidence which bore on Module One and the saga of phone hacking. Sir John Major made the point in evidence that what he considered to be the less than acceptable state of the culture, practices and ethics of the press is attributable
2.2
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to the acts and omissions of proprietors and editors.1 However, as I have already explained, this is the sort of issue that criminal proceedings rightly preclude the Inquiry from exploring, save in very general terms, not least because the only conduit from the conduct of journalists to Mr Murdoch is the layers of editorial and other management that separated him from the news room floor none of whom could be asked about the matter. This means that there are clear limits on the basis of the evidence I have heard to what I can say about Mr Murdochs leadership and his responsibility, if any, for this aspect of the culture, practices and ethics of the press. 2.3 There are no similar inhibitions operating on me in relation to those aspects of Mr Murdochs evidence which covered Module Three issues, although I naturally bear in mind that an enormous amount of evidential ground had to be covered in a relatively compressed timescale. Furthermore, the events in question covered a 31 year period (the acquisition of The Times and its associated titles was in January 1981) and Rupert Murdoch was 81 years of age when he testified. Notwithstanding that he is plainly extremely astute, some allowances need to be made for the fact that, over a two day period, he was being asked to give wideranging evidence and being taken, in the course of that evidence, to documents which were numerous, complex and diverse. It is not necessarily unreasonable that he may not always have given direct answers to the questions posed, and was not always able to recall events. It is also necessary to reiterate that Mr Murdoch is the Chairman and CEO of a world-wide media empire, and however dear to his heart newspapers may be as a whole, or The Sun newspaper in particular, his time has to be rationed and certain responsibilities delegated. Mr Murdochs relationships with various British Prime Ministers have been considered in depth above, and in this Chapter, I come to the heart of the matter. He denied on several occasions that he made any express deals with politicians, and the available evidence does not prove that he ever did. This, however, is not the end of the story. This Report is not the place to comment on Mr Murdochs undeniable business acumen. On any basis, I have absolutely no doubt that he is a newspaper man through and through, and that he has developed a serious and abiding interest in politics and current affairs. An iconoclast in a number of respects, and certainly not an establishment figure, Mr Murdochs position (which may be as the most powerful newspaper magnate in the English-speaking world, or at least one of them), has brought him into contact with all the leading politicians inhabiting that environment, from Australia to the USA. It is inevitable that he should get on better with some than others, but it is also clear from the evidence that he is a man who enjoys political argument and debate with those who are at the centre of this universe. If Mr Murdoch made no express deals with politicians within government, the question which arises is whether he made any implied deals or reached tacit understandings with those who engaged with him. In this regard it is necessary to define terms carefully because there is a clear danger of permitting a lack of precision in the question to suggest or indicate what the answer to it might be. Instead, it may be better simply to set out what inferences, if any, may reasonably be drawn from Mr Murdochs conduct over the years. All the politicians who gave evidence before the Inquiry said that Mr Murdoch exercised immense power and that this was almost palpable in their relations with him. Mr Blair spoke in terms of his acute awareness of the power that was associated with him.2 This is not to
2.4
2.5
2.6
2.7
p93-95, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-MorningHearing-12-June-2012.pdf; 2 p3, line 17, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-28-May-2012.pdf
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say that Mr Murdoch set out to wield power or that his personal manner was other than amicable and respectful in his dealings with politicians. But it is to say that he must have been aware of how he was being perceived by his interlocutors; to suggest otherwise would be to suggest that Mr Murdoch knows little about human nature and lacks basic insight, which could not, of course, be further from the truth. 2.8 Rupert Murdoch accepted that The Sun broadly reflected his worldview.3 His editors would not need to ask him for his opinion on any particular topic; they would know his thinking on the issues of the day in general terms, and could work out what it would be likely to be in any specific instance. Some have likened this process to the workings or metaphorical radiations of the Sun King, but, in fact, it is no more than basic common sense. Editors at The Sun, and probably also the News of the World, could form a pretty good idea of what their proprietor wanted without having to ask. It follows from this that, for example, the position The Sun took in relation to Lord Kinnocks personality and policies through the 1980s and right up to the general election of 1992 was consistent with Mr Murdochs assessment of the man, even if the proprietor did not necessarily encourage all his papers methods and rhetoric. It is the without having to ask which is especially important here. Sometimes the very greatest power is exercised without having to ask, because to ask would be to state the blindingly obvious and thereby diminish the very power which is being displayed. Just as Mr Murdochs editors knew the basic ground-rules, so did politicians. The language of trades and deals is far too crude in this context. In their discussions with him, whether directly or by proxy, politicians knew that the prize was personal and political support in his mass circulation newspapers. The value or effect of such support may have been exaggerated, but it has been treated as having real political value nonetheless. Turning the tables round, as it were, Mr Murdoch was also well aware that political support was what his interlocutors were seeking.4 Equally, politicians were well aware that taking on Mr Murdoch would be likely to lead to a rupture in support, a metaphorical declaration of war on his titles with the inevitable backlash that would follow. What might count as taking him on would have to be seen from Mr Murdochs point of view, and in the context of a continuing and complex relationship. Mr Murdoch knew this too. These factors, taken together, would be likely to lead to an appreciation of the consequences both of disturbing the status quo as regards the regulation of the press and, more broadly speaking, of adopting policies which would damage Mr Murdochs commercial interests. Politicians interests, in other words, would find themselves highly aligned with Mr Murdochs. Put in these terms, the influence exercised by Mr Murdoch is more about what did not happen than what did. To reiterate: a case by case examination of the policies which were introduced over this long period fails to demonstrate that politicians compromised themselves or their policies to favour Mr Murdochs business interests directly. Where a decision pleased Mr Murdoch, there would always be other public-policy reasons for it. At least one administration introduced many policies to which, by any stretch of the imagination, Mr Murdoch would not have been well disposed. But no government addressed the issue of press regulation, nor of concentration of ownership. Another important factor is that Mr Murdoch fully understood the value of personal interactions, the value of the face-to-face meeting. His (self-invited) lunch with Baroness
2.9
2.10
2.11
2.12
2.13
3
p36, lines 15-16, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofMorning-Hearing-25-April-2012.pdf 4 p58, lines 18-24, Rupert Murdoch, ibid
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Thatcher on 4 January 1981 exemplifies this point in microcosm. Mr Murdoch was not necessarily expecting any favours from Baroness Thatcher but he was investing in her nonetheless, seeking to impress on her his personal qualities as a risk-seeking entrepreneur who shared political affiliations with the Prime Minister and, although he never made the argument explicitly, why he should be regarded as the favoured bidder for The Times. There is no evidence that Baroness Thatcher sought in turn to persuade her Secretary of State of Mr Murdochs qualities, but had there been a conversation between the two of them Mr Murdoch had the comfort of knowing that he had taken the opportunity of advancing his own case. In any event, if the lunch had been known about at the time, that itself would have been significant. Suffice to say, Mr Murdoch well understands the value of less is more.
Viscount Rothermere
2.14 I am grateful for the evidence Viscount Rothermere provided to the Inquiry, but for these purposes it is possible to address it quite briefly. He recognised the power wielded by the press, including by his own titles, but an assessment of his evidence overall does not suggest that this was a power which he was particularly keen to wield; he left it to others to do so. Viscount Rothermere was concerned to explain the distinction he said he made in his own mind between overt campaigning activity on a matter of general public interest, or on issues of commercial concern to his newspaper, which in his view should take place with Ministers and officials on the record,5 and social interactions with politicians where, as he put it, it might be seen as not very good manners to raise particular problems.6 This distinction was encapsulated in this way:7 Well, I dont I think that if I see a politician and they want to talk about general politics and they want to talk about they want to explain their views and I want a general understanding of whats going on, then thats appropriate in one scenario. If I have specific issues that I wish them to understand over something like the EU privacy directive or local television, I think thats best done in a business environment, where everything is on the record. Frankly, I think its the it protects them and it protects me from insinuations of undue access. Thats how I operate, anyway. Or try to operate. 2.16 This was straightforward evidence, both in its ethical compass and its recognition of the problems of public perception which attach to both parties to these interchanges: the insinuations of undue access was Viscount Rothermeres pungent turn of phrase and identified the very core of the problem. Viscount Rothermere also explained that, on occasion, he was at the receiving end of representations of a different sort from politicians discontented with their coverage in the Daily Mail in particular. He explained that he saw it as his role, when appropriate, to draw these complaints to the attention of his editor:8 Certainly, when Ive had meetings with politicians, they have expressed of all parties expressed unhappiness with some of the coverage in the newspaper. Largely, I refer them back to Paul Dacre, but if there is an instance which I feel justifies merit,
p52, lines 6-13, Viscount Rothermere, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofMorning-Hearing-10-May-2012.pdf 6 p52, lines 14-21, ibid 7 p53, lines 3-14, ibid 8 pp9-10, lines 1-4, ibid
5
2.15
2.17
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then I may well bring that up with Paul and say that and recommend that he look into it and talk to that politician to seek out the truth. So if they say that weve run something which is blatantly untrue, and that is probably I wont get involved on a level of opinion, but if someone comes to me and says, Your newspaper has printed an untruth, it is categorically a mistake, then I will say to Paul, This person has written to me, and it is normally a letter, complaining about this which they say is untrue, would you please look into it and he and the legal team look into it and either talk to the politician and sort it out directly or write back to me and say that there is no truth in it sometimes people have a different opinion as to truth. LORD JUSTICE LEVESON: So its just a system thats built up. Its not something that youve made known? A. No, I well, yes, its not something Ive made known, and to be honest, I dont really invite it, because I dont think that is I dont wish to get into a position of having to constantly deal with this issue because obviously the newspaper is writing controversial things all the time, so it is
Aidan Barclay
2.18 Mr Barclay gave evidence to the Inquiry in his capacity as Chairman of Telegraph Media Group Ltd, a position which he has occupied since July 2004.9 The Barclay family own a range of other business enterprises including other print titles, and the media as a whole is perhaps a less important part of their undertakings than some of the other proprietors from whom the Inquiry has heard. Aidan Barclay explained that it is his practice to accord complete editorial freedom to his titles.10 The Telegraph titles support the Conservative Party at general elections but regularly criticise Conservative Governments and politicians.11 Mr Barclay made it clear that he does not ask politicians for favours, and none are returned; his discussions with politicians are largely of a general political and economic nature.12 His SMS text message communications with David Cameron, particularly in May 2010, are addressed elsewhere but bear out his evidence in this respect. No doubt Mr Barclays principal concern is the macro-economic environment in which his wide-ranging business interests will inhabit. Mr Barclays evidence as to his various dealings with the last three Prime Ministers is as follows:13 I have known each of the last three Prime Ministers. My relationships with each of them have been cordial and sporadic: I would not describe them as particularly close. I saw Tony Blair on a number of occasions, and if my memory serves on almost every occasion (other than dinner) Jonathan Powell was in attendance. As is widely recorded, Mr Blairs approach to such meetings was relaxed and social. He was interested in the press but I do not recall him ever raising specific editorial matters with me, or suggesting that the Telegraph titles might adopt a different political stance. I had a number of meetings with Gordon Brown when he was Prime Minister. He was, as is well known, interested in the granular detail of economic policy and we spoke often about economic theories and the state of British business. I saw him more than
9
2.19
2.20
p1, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Aidan-Barclay.pdf p9, para 31, ibid 11 pp9-10, para 32, ibid 12 p12, para 40, ibid 13 pp12-14, paras 41-44, ibid
10
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other Prime Ministers because of the extraordinary times we were living through following the collapse of Northern Rock and then of Lehman Bros. Mr Brown was keen to get my views on the impact on business, and I would sometimes send him articles and books I thought he should see. He was also Prime Minister when the scandal of MPs expenses broke, and he must have raised this with me in general terms; but as with Mr Blair I do not recall him ever asking me to intervene in editorial matters as he was aware of my own views on editorial independence. I first met Mr Cameron where he was a candidate to become leader of the Conservative party, and I have had meetings with him on a handful of occasions since. The Prime Minister has a background in the media and I have always found him to be knowledgeable about, and interested in, the way the newspaper industry works and is developing. Like his predecessors, he has also always been interested in general economic and business discussion. Again I do not recall that he has ever asked me to interfere in matters of editorial policy. Each of the three Prime Ministers I have had dealings with have obviously understood from the outset the broad political approach of the newspaper. None has asked me to change that approach.
Richard Desmond
2.21 2.22 Mr Desmond has already been discussed in some detail in the Report. In this short section I shall focus on his dealings with politicians. Mr Desmond presented himself as quintessentially a business man rather than a newspaper man: newspapers are a strictly business, rather than an emotional, undertaking. In his written evidence to the Inquiry he explained his approach to editorial freedom and the direction of political support of his newspapers:14 ... all editorial decisions are left to the Editors. The best example I can recall is when Peter Hill was the editor of the Daily Express, he wanted the newspaper to stop supporting the Labour Party and back the Conservative Party. I got on well with Tony Blair and I felt bad for letting him down. However, at the end of the day, it was the Editors decision and the paper trusted his political allegiance [sic] 2.23 Mr Desmond was asked to amplify on this in his oral evidence. As he explained:15 Im not a you know, I remember meeting Mr Blair for the first time when we bought the papers. He was very nice, we talked about fortunately, we talked about music and drums, which is my passion, and as we walked out of the door, he said to me, Well, who do you support then? I said, Pardon? He said, Who are you, left, right, you know, one of us? I said Honestly, mate, Im not really interested in politics. And he said to me, You will be, and interestingly on my way back to the office I got hijacked by Porter who said, What are you? Are you a Tory or a socialist? I said he seems a nice fellow, Blair, so I was a socialist. Q. Weve heard from Mr Hill that the paper changed direction, perhaps re-entered its natural habitat before 2005. A. Yes.
14
p4, para 15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-RichardDesmond.pdf 15 pp64-66, lines 25-6, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcriptof-Afternoon-Hearing-12-January-2012.pdf
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Q. Did you have any interest in or influence over that decision? A. Yeah, I felt that I betrayed Tony, as a mate. I felt he was a good bloke, I thought he was doing a good job, I liked him. You know, he came to my house, I went to his house or flat or whatever you want to call it. I thought he was a good guy. So I felt on a personal level bad, but at the end of the day Peter Hill runs the editorial of the paper and that was the decision that he made. Q. And its a decision, therefore, which from my understanding of what you just told us that you didnt oppose. Because you could have overruled it, it could be said? A. We dont really work that way.
Evgeny Lebedev
2.24 Mr Lebedev brought another perspective to the Inquiry through his evidence as joint owner with his father of the three Independent titles and the London Evening Standard, although his background is obviously different from that of Mr Murdoch on the one hand and Viscount Rothermere on the other. He told the Inquiry that he did not set the editorial direction of his papers, but left his editors to do so unimpeded. Although he enjoys personal friendships with senior politicians such as Boris Johnson,16 and spoke of the symbiotic relationship between journalists and politicians, Mr Lebedev was clear that he had never been asked for political support from a politician.17 He said that politicians discussed matters of policy with him not in order to encourage or secure political support for them but solely so that he as a newspaper proprietor had the benefit of a personal explanation.18 However, in answer to a follow-up question Mr Lebedev did impliedly accept that the distinction between the benefit of a personal explanation on the one hand and assessing whether a particular policy should be supported on the other may be quite a fine one:19 LORD JUSTICE LEVESON: So part of the value is that you get a personal explanation of why A. Yes, exactly, absolutely. LORD JUSTICE LEVESON: a particular idea is good and, although unstated, should be supported? A. Yes, although, as I mentioned before, it will still be left up to the editor of whether the policy is supported or not. 2.25 Mr Lebedev sought to distance himself from the type of newspaper proprietor who he believed might seek to influence policy.20 It is interesting to observe that, from his viewpoint as a newspaper proprietor, it was an opinion which he firmly held, no doubt alive to the risks which he felt were capable of arising from the complex and shifting dynamic which exists between proprietors and politicians: as he put it, because we occupy the same sphere of influence.21
16
p14, line 11, Evgeny Lebedev, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-ofAfternoon-Hearing-23-April-2012.pdf 17 p16, lines 21-25, ibid 18 p24, lines 16-22, ibid 19 pp24-25, lines 20-2, ibid 20 pp22-23, lines 10-3, ibid 21 p22, lines 22-23, ibid
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2.26
Finally, Mr Lebedev offered an interesting insight, bearing in mind the perspective of his Russian background, into the constitutional importance of a free press:22 Well, I just think that okay. Going back to the question of politicians meeting proprietors, I think we are in danger of building a society where every institution, every element of democracy becomes too feeble. So politicians become too feeble, police becomes too feeble, the country itself becomes too feeble. If the press also becomes feeble, then what we get is what I would call a tyranny of consensus, and everyone is afraid or thinks twice or has to check twice before a step they make, a comment they make, and I think one of the extraordinary things about this country is a very robust and diverse press, and I think that has to be protected. Without, of course those who have created who have committed crimes, sorry, should be punished and punished according to the law. But I think the robustness of the press in this country should be protected because otherwise, as I mentioned earlier, Ive been recently going on trips to countries where there is no freedom of the press. Ive just come back from Ethiopia and there are journalists there that have been charged with terrorism, with genocide. Some might be put to death. Countries like that, when you visit them and you see what the lack of the freedom of the press has on the effects on the government and the state, and also, as far as Im concerned, I come from I was born in the Soviet Union, I come from Russia, and I can see the effects of not having a free press is having on Russia.
Reflections on the proprietors

2.27 It may be appropriate at this point to make brief and general observations about the participation of the proprietors in the work of the Inquiry and indeed in the conclusions and recommendations of this Report. It is of the essence of press freedom as discussed in Part B of this Report that (consistently with safeguarding the public interest in a plural and diverse press) anyone with the means and motivations to do so may own and run a printing press. The fact that the proprietors of our national titles can view themselves on a continuum of one sort, in the digital age, with the humblest blogger or tweeter does not alter the fact they occupy, by virtue of their role, a fundamentally important place in UK public life, and perform a vital public service in the contribution they make to a vigorous and thriving democracy. As discussed below, although I have reached the conclusion that, in some respects, the relationship between individual newspaper proprietors and senior politicians has not been wholly beneficial from the point of view of the public, I do not consider that the principal responsibility for remedying that situation lies with the proprietors. The response that I invite from newspaper proprietors to this Report lies in a different direction. The culture, practices and ethics of individual press organisations, and the contribution that each one makes to the culture, practices and ethics of the press viewed as a whole, are matters on which individual proprietors are uniquely placed to exercise personal influence in the public interest. This does not, in any way, suggest interference with editorial independence or with the opinions or content that their titles are free to publish. I am referring instead to the way that any important business contributor to national life and culture will want his or her business to make that contribution, and to operate in ways that command public respect and admiration, enhance the reputation of the business and, in this case, the press generally and their titles in particular. The more that the public trust the press, the greater the chance that they will partake more freely and to a greater extent in the variety that different titles offer.
2.28
2.29
22
pp27-28, lines 16-18, ibid
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2.30
I have noted the support which national newspaper proprietors have expressed for a new system of press standards which restores public trust and confidence in, and the reputation of, the industry by offering an unequivocal demonstration to the public that the press is committed to the standards of the best, to eradicating the causes of past failures and to real ambition about the way things will be seen to be done in future.23 I hope, therefore, that in response to this Report and however lively the debate and analysis freely playing out in the pages of their titles, newspaper proprietors will continue to play an open and public-spirited role in embracing the need for a system of press accountability that inspires public confidence. I have no doubt that they are able to set the tone within and beyond their organisations and I hope that they will feel able to do so. From the point of view of the readership and the wider public, there has perhaps never been such a clear need for leadership within the industry both in relation to regulation and issues of internal governance.
2.31
3. Too close a relationship

Generic conclusions
3.1 Having tested and examined the proposition that the relationship between politicians and the press has become too close, including through the historical and current perspectives of our last five Prime Ministers, the thoughts of contemporary politicians, and the series of case studies which have been chosen (or, more precisely, simply presented themselves) to exemplify the nature and character of this relationship, it is now appropriate to draw the strands together and express some conclusions of a general nature. In this part of the Report it is the generic nature of these conclusions which is important, not the specifics of the relationship between any individual Prime Minister and any individual newspaper proprietor. I have already set out my conclusions in particular cases, and the evidence which in my view supports each conclusion, citing chapter and verse in relation to witness statements and the transcripts. Almost invariably, I have not relied simply on what commentators and other observers have said or opined (although some of these contributions have been full of insight); instead, my conclusions have been based on what the proprietors and the politicians themselves have told me. For the purposes of these high-level conclusions I believe that it is unnecessary to set out other than one or two isolated examples of the supporting evidence which is to be found in the main body of the Report: indeed, it would be invidious to do so, given that the scale of the available evidence would force me to be selective, and it might then be wondered why I have cited evidence in relation to one politician but not another. However, my findings do have to be reasoned and supported by evidence, and I have decided to place links to all of the relevant evidence in Appendix 5 to the Report. I should also explain that, pursuant to my obligation to act fairly under the Inquiry Rules 2006, in particular Rules 13-15, I have given the leaders of the three main parties in the UK24 advance notice of these generic conclusions, which were then at a provisional stage of
3.2
3.3
3.4
23 24
Part K, Chapter 7 I did not write to the leaders of the national parties of government and opposition in the UK devolved administrations in this way because, as I make clear in this Report, in my opinion the conduct of politicians of devolved government cannot reasonably be considered as part of the historical UK national pattern with which my generic conclusions are concerned
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formulation, as well as notice of the supporting evidence. No-one has sought to take issue with what I then called my generic criticisms which now follow. 3.5 In my view, the evidence clearly demonstrates that the political parties of UK national government and of UK official opposition25 have had or developed too close a relationship with the press. This assessment relates to the period of the last thirty to thirty-five years but is likely, as has been suggested, to have been much longer than that. Although this relationship has fluctuated over time, the evidence suggests there has been a perceptible increase in the proximity of the relationship over this period. I do not believe this has been in the public interest. I do not seek to attribute or apportion blame any more specifically than that. The relationship between the press and the politicians has been too close in the following principal respects. First, in my view (and as many have said) politicians have spent a surprisingly large amount of time, attention and resource on this relationship in comparison to, and at the expense of, other legitimate claims in relation to their conduct of public affairs. Second, in conducting their relationship with the press, politicians have not always maintained, with adequate rigour, appropriate boundaries between the conduct of public affairs and their private or personal interests. Third, politicians have failed to conduct their relationship with the press with sufficient transparency and accountability from the point of view of the public. Again, it would be invidious, and unnecessary, for me to be any more specific than this in evidencing these conclusions. I therefore conclude that politicians have conducted themselves in a way that I do consider has not served the public interest, so as: (a) to place themselves in a position in which they risked becoming vulnerable to unaccountable influences in a manner which was, at least, potentially in conflict with their responsibilities in relation to the conduct of public affairs; to miss a number of clear opportunities decisively to address (and persistently fail to respond more generally to) public concern about, the culture practices and ethics of the press; and to seek to control (if not manipulate) the supply of news and information to the public in return for expected or hoped-for favourable treatment by sections of the press, beyond that which is appropriate or an inevitable by product of politics in a 24-7 media age, but to a degree and by means other than the fair and reasonable partisan conduct of public debate.
3.6
3.7
(b)
(c)
3.8
In making the first and second of these points I should not be interpreted as concluding that politicians have made express or implied deals with press proprietors in a manner contrary to the public interest. Rather, I have concluded that a combination of these factors has contributed to a lessening of public confidence in the conduct of public affairs, by giving rise to legitimate perceptions and concerns that politicians and the press have traded power and influence in ways which are contrary to the public interest and out of public sight. These perceptions and concerns are inevitably particularly acute in relation to the conduct by politicians of public policy issues in relation to the press itself.
25
I am, of course, conscious of the limited extent to which the Liberal Democrat party (and its predecessors) have, in practice, fitted within that description
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3.9
As I have already pointed out, the evidence upon which I rely is available in Appendix 5 to the Report. I content myself by citing just one piece of evidence from an experienced politician. The Rt Hon Lord Patten of Barnes CH put it this way:26 I think major political parties, and particularly their leaders over the last 20 or 25 years, have often demeaned themselves by the extent to which theyve paid court on proprietors and editors. Of course Im in favour of talking to editors and journalists but Im not in favour of grovelling, and I think that politicians have very often laboured under again, Im reminded of something I said by the documents you asked me to look at. I think that politicians have allowed themselves to be kidded by editors and proprietors that editors and proprietors determine the fate of politicians.
3.10
In concluding that the relationship has become too close, I bear in mind that this has been acknowledged by many of our leading contemporary politicians themselves, but in different ways and to different degrees. I also bear in mind and fully recognise that the overwhelming majority of close interactions between politicians and the press are not only entirely healthy, but an essential part of democratic life. It is important therefore to set out some of the wider context to my generic conclusions before turning to thoughts for the future, both to explain what I mean by those conclusions, and, just as important, to be clear about the aspects of the relationship which I consider to be entirely outside the scope of my criticisms. In doing so, I turn first to two distinct aspects of the problem I have identified, before stepping back to consider some wider context.
3.11
Image and spin

3.12 The acknowledgement that relationships have become too close is not just one about public perceptions (whatever the reality) that covert deals have or might have been done. To some extent the closeness has simply been a matter of politicians spending too much time and attention on the press, perhaps worrying too much about the fleeting minutiae of image and presentation in a way which is not proportionate to the substance of national politics. To that extent, this Report need do little more than amplify the message that this is, in itself, conduct which demonstrably undermines public trust and confidence. In doing so, when viewing the matter from their perspective, it is impossible not to have considerable sympathy with the politicians. In a context of declining public engagement with and confidence in the national political process, the most natural thing in the world is to try to improve the situation with attractive and engaging communications strategies, trying to harness the power of the media to tell better and brighter narratives, trying to contain the power of the media to corrode public opinion or, in other words, simply getting the message across more successfully. But it is a strategy which carries within it the very obvious risk of being counter-productive. The presentation of politics is vital to a healthy democracy, but the politics of presentation can themselves foster cynicism, disengagement and public mistrust. The ubiquity and slickness of modern communications is daily life for all of us, and the public is highly sophisticated in filtering and interpreting it. Where political content is concerned, people are especially wary and sceptical. I make allowance for the degree to which the media themselves may have been over-zealous in promoting public distrust of politicians: from one perspective, spin is just the out-manoeuvring of unfair and corrosive press criticism. Nevertheless, the perception of the
3.13
I
3.14
26
pp8-9, lines 15-13, Lord Patten, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-ofAfternoon-Hearing-23-January-2012.pdf
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politician as salesman, to be treated with circumspection by the wise, is an abiding obstacle to public trust and confidence. 3.15 This is a lesson which many politicians may already be learning. A number of important steps have already been taken in the right direction. These include progress on the approach to government communications since the Phillis Report,27 in which Sir Robert Phillis analysed the state of public confidence in the relationship between the politicians and the press as it stood in 2003. Credit must be given for the measures put in place to secure more straightforward communications strategies which the public can better understand. It is striking too, however, how much of Sir Roberts advice bears repetition. Of his seven key principles for modern government communications, three in particular remain highly relevant today, and relevant to the conduct of all political relationships with the press and not merely those of governments. These are, first, the importance of politicians engaging in more unmediated communications with the public; secondly, staying on the right side of the dividing line between the positive presentation of policies and achievements on the one hand and misleading spin on the other; and thirdly, the use of all relevant channels of communication rather than excessively emphasising national press and broadcasters. Further progress in the direction of a more straightforward relationship between politicians and press is likely, in itself, to reap benefits in improved public confidence. That conclusion speaks for itself. In a small number of specific respects, however, I have concluded that simply setting out the criticisms in writing (as I have done) will not, on its own, be sufficient to secure further improvement. I return to this in the recommendations at the end of this Chapter.
3.16
3.17
3.18
The press as lobbyists

3.19 This Part of the Report has drawn attention to a number of ways in which the press has exercised political influence, in other words engaged in lobbying. There have been those in positions of leadership of the press who have shown themselves to be exceptionally dedicated, powerful and effective political lobbyists in the cause of their own (predominantly commercial, but also wider) interests. The fact that lobbying is pursued through the medium of personal relationships, and at an intuitive level, is part of its effectiveness. The lobbying may be powerful exactly because it need not be crudely articulated. Here, it is critical to differentiate lobbying from campaigning. The press undertakes many campaigning activities, editorially and otherwise, to excellent effect. These include investigative campaigns and campaigns on matters which have captured the public imagination, such as Help for Heroes. They include all sorts of campaigns on political issues, including party political campaigns and electioneering. All of this is the very stuff of journalism and part of the important contribution the press makes to our public life. The press also campaigns on particular subjects on the basis that it represents to governments the views of its readers and argues for them. The readership of national titles, however, is sometimes more sceptical and diverse in its views than the editorial stance of the title might suggest; the sophistication of readers and consumers of media has never been greater. Nor can the antennae of editors, however finely tuned and however much apparently validated
3.20
3.21
27
http://www.ppa.co.uk/legal-and-public-affairs/ppa-responses-and-evidence/~/media/Documents/Legal/ Consultations/Lords%20Communications%20Committee/final_report.ashx
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through the public inboxes of their titles, substitute for democratic process or what politicians learn from their constituents. 3.22 It may be, as witnesses such as the Rt Hon Kenneth Clarke MP have observed, that press campaigning activities in areas such as criminal justice and immigration have, over the years, seemed to carry more weight in political circles than they may have strictly merited as a matter of the evidence of public opinion or, more importantly still, as a matter of empirical evidence and of proportion. But, rightly or wrongly, such campaigning will always be the stuff of politics. Lobbying, in this context, is very different. Here I refer to activities designed to promote the self-interest of the press not only to increase readership and sales but more basically also as a matter of commercial self-interest. This is not just about their individual titles and organisations but also about the media or the press in general, including matters of regulation and accountability. Of course, as advocates for their own commercial interests, the press are in some respects in no different a position from other major commercial organisations or sectors, capable of exerting power and influence over public policy and I am well aware that very much broader questions about political lobbying do, from time to time, rise up the political agenda. These issues cannot be part of this Report.28 Nor do I consider any of the self-interested lobbying activities of the press to be an appropriate matter for press regulation. Media companies should not be criticised for, or restrained from, lawfully advocating their private interests with all the considerable skill and resource at their command, and at the highest levels to which they can (and do) secure access. The dedication and resourcefulness of press organisations as lobbyists has been vividly illustrated for the Inquiry in the person of Mr Michel.29 There is no doubting the sheer hard work and professionalism of press lobbyists and I have no reason to believe that Mr Michel is an isolated phenomenon in this respect. There is an important exception to the principle of unrestrained advocacy, and it relates to the openness and formality required in the context of quasi-judicial decision-making. This exception applies just as much to any other commercial or campaigning organisation as it does to the press. Having said that, I am clear that it is, more generally, entirely the responsibility of the politicians who are the object of lobbying to judge how far and in what way they consider it to be in the public interest for them to respond. As I have said, the relationship is not a symmetrical one. The politicians have responsibilities to the public who elected them. Lobbyists do not. One of the chief responsibilities of politicians is to bear in mind that while a free and healthy press is certainly in the public interest, that does not mean that everything which is in the (commercial or wider) interests of any individual press organisation, or even of the industry as a whole, will itself necessarily be in the public interest. The matter must be looked at in the round, taking all relevant considerations into account. I make that clear because, in listening to the evidence, I have noted the way in which the rhetoric of public interest tends to become elided with the self-interest of the press. No doubt other sectors also routinely appeal to
3.23
3.24
3.25
3.26
3.27
I
3.28
28
I appreciate that other lobbyists might have other potential tools of persuasion in their possession; the megaphone (which is the tool available to the press), however, is undeniably extremely powerful and, therefore, justifies consideration in its own right 29 Part I Chapter 6 above
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a sense of the public interest in the health of their enterprises and the contribution they make to general quality of life, prosperity and well being. Perhaps the press do so especially insistently. It is politicians job to test such claims on a case by case basis. 3.29 Furthermore, there are particular temptations and vulnerabilities for politicians in connection with lobbying from the press. First, the press hold the powerful weapons of a public megaphone and extensive, behind the scenes access. Second, there is the direct influence that the press exercises over public communications about the relationship itself. This has a personal dimension which can be and has been very striking.
The personal dimension

3.30 Free communication at a personal level between press and politicians is vital for healthy democracy. It is how the public is kept informed, both of the detail of current affairs and of the large scale issues of politics, policy and citizenship. It fosters public engagement in the debated issues of the day, civic responsibility, responsive government and allows power to be held to account in the public interest. Face to face communication can be among the most powerful and effective, and is therefore of very real importance. At the same time, as politicians and journalists are constantly thrown together or seek each other out, often in informal or social contexts, personal relationships can develop into friendship; that is, of course, often the case when people share time, professional interests and backgrounds. In this context, the relationship between national politicians and the national print press has some distinctive qualities of its own. Whereas the broadcast media are subject to constraints of political neutrality, balance and impartiality, the free partisanship of newspapers is, by contrast, of their essence. They foster a form of political debate which is noisy, polemical and critical, and which is rightly highly valued as part of the UKs heritage. They offer a choice of different world views and different values, among which readers can make their choice, and the variety of which promotes richness of perspective and public debate. What the national press uniquely offers the politician, therefore, is attractively packaged, and actively mediated, political partisanship. That in turn means that political/press relationships tend to have a focused bilateral quality, in which each party has something the other wants. This motivates politicians to get a quantifiable outcome from their investment in relationships with journalists. It may be in terms of new information, political and policy support, or the enhancement of personal reputation and profile. It also motivates the press, perhaps to try for exclusive access, or for something else tangible. This distinctive relationship is full of vigour, and a life-force which gives it the capacity to evolve in response to changing times. It is visibly still evolving and changing today, largely as a result of the proliferation of new media. That gives politicians new opportunities to communicate with the public in alternative, and highly personal ways; some politicians have emerged as gifted bloggers with attentive and enthusiastic readerships, others have made the use of Twitter very much their own. These constitute new, lively fora of political debate in their own right, very accessible to the public, directly participative in real time, and more raucous, opinionated and diverse than ever. All of this is full of potential to benefit our national life in the digital age.
3.31
3.32
3.33
3.34
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3.35
However, these changes have also brought new pressures into political/press relationships. The online 24 hour presence of newspapers and other news sources has the consequence that both press and politicians now have substantially less control over information, and face more competition for attention. These changes inevitably affect the dynamic of the relationship between the politicians and the press. The print press is no longer the unique medium through which public reputation and political partisanship is contested and is no longer the all-surrounding sea in which political fish must swim or sink. But paradoxically, this may enhance the relative power of what remains unique about the press: a powerful, mediated partisanship which may indeed contain unspoken expectations of a tangible return. There are other kinds of pressure. The Inquiry received evidence about the extent to which politicians may legitimately be regarded as having relatively limited expectations of personal privacy, by virtue of their publicly accountable role, or because they have taken particular public positions (for example on moral issues). This is not straightforward. In law, a politician has like any other citizen a right to respect for his or her privacy, autonomy and family life. But that is a right which can be waived to a greater or lesser degree, or, perhaps more accurately if less technically, traded. The press could be described as a trading floor in the extent to which personal information is publicised, so the issue of express or implied waiver of privacy is always potentially in issue in interactions with the press.30 Politicians may choose to concede a measure of privacy to journalists for a range of reasons; these might be to put themselves in a good light, to offer an exclusive, or simply to maintain a good or important working relationship. The terms of this trade are, however, hard to articulate, vary from person to person, and are constantly under negotiation. They are largely untestable too, since not bringing the issue to the test (particularly not via the law) is integral to the maintenance of the interaction. For politicians, managing their relationships with the press is, in day to day reality, a matter of endless variation on the themes of personality, power and vulnerability. The civil law (of privacy and defamation) remains in position as a long stop in cases of relationship breakdown. But there are few other rules. I was also struck by what Mr Coulson said in his evidence31 about the inexorable growth of the importance of individual personality at the highest level (indeed at all levels) in politics. Mr Coulson spoke of the significant investment needed to ensure that the public has an authentic view of senior politicians. That can involve a work of portraiture in which colour and background are provided by well-chosen and sympathetic insights into aspects of character, and private and family life. It is easy to see that the potential dividend of bringing the human side to the fore is an attractive one; but as some of the Inquirys celebrity witnesses observed, it brings with it a large and obvious risk. If an image is explicitly presented as authentic, does that not to some degree invite a challenge to the claim of authenticity, and legitimise intrusion into other aspects of character, privacy and family life? I mention these issues because of the light they shed on how, when the press operate as lobbyists within those personal relationships, issues of particular concern can arise.
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3.38
3.39
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30 31
Exactly the same has been vigorously argued by the press in relation to certain celebrities pp82-83, lines 24-9, Andy Coulson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-ofAfternoon-Hearing-10-May-2012.pdf
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Public interest issues

3.41 The relationships within which lobbying can take place are not the everyday relationships of journalism and politics. They are the relationships of policy makers (actual or potential) and those who stand to benefit directly from those policies. That is a limited category, comprising (on the one hand) a small number of relevant Government decision-makers and those who credibly aspire to those positions in the future, and (on the other) the proprietors and executive decision-makers of the press. Nevertheless this limited category of personal relationships partakes fully of the personal qualities of all press/political relationships as described above; those qualities may also include real friendship. In press/political relationships within this limited category, the boundaries between government, party and private business in relation to a politicians dealings with the press are particularly fluid and blurred, and inevitably so, for all the reasons set out above. Any individual interaction is likely to contain elements of all three. Government profile and party political profile are virtually inseparable at the level of individual interactions, and the personal dimension pervades the whole. Movement across these boundaries, although inevitable, can cause problems because existing formal mechanisms of public accountability applying to these relationships depend on them. Where press/political relationships are concerned, there appear to be few bright lines in practice between the conduct of government business with its formalities and accountabilities on the one hand, and informal political or personal interactions on the other; the personal reputation and public profile of the politician will always be a concern at some level in all these interactions. The theoretically separate domains are in fact inseparable and it is this which gives rise to the problems of public perception when press lobbying takes place. The impression is given of decisions being taken about matters of media policy in the context of close, personal relationships (and friendships); there is then a legitimate concern that the public will be in the dark on matters of legitimate interest to them and accountability will be lost. The narrative of the BSkyB bid is relevant in this respect. That risk also includes the possibility that the public will not be completely in the dark, but may come to learn something of what appear to be close relationships and reasonably suspect them of being in some degree relevant to the conduct of public affairs. Save for speculation or intrusion, however, there is no available means of understanding how far that may be so. That leaves the matter unsatisfactory from the public point of view; further, the speculation exposes the politicians involved to a degree of innuendo along with the difficulty of proving a negative both of which could very well be unfair. The result is uncomfortable and creates a problem for all concerned: the public is entitled to know about a personal relationship if, but only if, it is relevant to the conduct of public responsibilities for which a politician should fairly be accountable. By their nature, the very senior relationships I am considering do contain the clear potential to have that sort of relevance. In the circumstances, it seems to me that it is necessary to find a way between the bare assertion of irrelevance to the conduct of public affairs on the one hand, and intolerable eavesdropping on private lives, on the other. I reflect on this further below. In the rough and tumble of political life, pressures within the personal relationships between the decision-makers in the press and in politics have always been there. But there is an argument for saying that they appear to be intensifying in ways which are associated with a ripple of public unease. This can be described in a number of ways, but the common theme is the perception of the impoverishment of public debate and of risk to the public interest.
3.42
3.43
3.44
3.45
3.46
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3.47
The focus of the press and the politicians on managing the individual relationship between themselves at all levels has, it is said, begun to show an increased tendency to focus on what each stands to gain in a narrow, self-interested way, to the exclusion, and at the expense, of the wider public, and the public interest both in journalism and in politics. As I have already observed, some evidence of this is apparent in the low and declining levels of public trust in both press and politicians, in public disengagement from the processes of politics, in the criticism of spin and PR techniques, and of the infusion of celebrity values into political behaviour and journalism. In these relationships, there is what I have described as an inevitable trading element. The politicians have exclusive news and exclusive relationships, private advocacies and personal titbits to offer; and, in return, the press has partisanship, personal favours, the protection of sources and not holding to account. Potential promises and threats hang in the air. It all means, in short, that politicians have a particular susceptibility to being lobbied when they get close to the opinion-makers of the press. The public, in turn, stand to be the losers. They have a reason to worry that public debate may be being manipulated behind their backs, public policy decided unaccountably, and the ethics of both press and politicians compromised in the process. It was the concern of this Module of the Inquiry to reflect on the nature and proportions of that risk, and my conclusions are set out above. The conclusions that I have reached are troubling but this should not be surprising. In July 2011, the Prime Minister stated that, in his view, the relationship between politicians and the press needed to be re-set, and I entirely agree. Some progress has been made since then, and I welcome the fact that the leaders of the three main national parties in this country have not sought to challenge the proposition that my overall conclusions are justifiable on the evidence or to persuade me of an alternative view. But this acknowledgement is only the first step on the road, not the last. The Report has concluded that over not just the last thirty to thirty-five years, but really over two generations, there have been failures to act politically on previous warnings about media misconduct. These failures can be associated with indications that, over recent decades, the press and the politicians have formed too close a relationship, and that that has in turn damaged public confidence in the political process. The Terms of Reference require me explicitly to address this issue, and expressed in these terms, it needs to be recognised that politicians have over the years been part of the problem of press standards. It is clear, however, that politicians hold the complete solution. The relationship between the press and the politicians needs, this time, to make a distinctive break with that history, and change in such a way that is visible to the public.
3.48
3.49
3.50
3.51
3.52
4. Existing regulatory framework

4.1 As noted above, there are very few constraints beyond the legal basics governing the relationship between the press and politicians and no case can be made for the ordinary run of interactions between journalists and politicians to be anything other than freely negotiated and managed by the parties involved, without interference. The existing regulatory framework is, therefore, limited to and rightly focused on only the very specific circumstances where there are pressing reasons of public interest to be safeguarded.
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4.2
All members of Parliament are required, for example, to comply with the Houses rules on the registrable declaration of interests, the purpose of which is:32 to provide information on any financial or non-financial benefit received by a MP or Member of the Lords which might reasonably be thought by others to influence their actions, speeches or votes in Parliament or influence their actions taken in their capacity as a Member.
4.3
This important discipline, which is obviously not confined to interests in relation to the press, is imposed in the interests of transparency, not to inhibit the holding of interests as such but to ensure that the public is aware of them and able to take them into account in forming a view on politicians conduct of Parliamentary business. Similar rules apply to the specific articulation of interests in the course of contributing to Parliamentary debates. The liberty of Parliamentarians to speak and act freely in Parliament is a cornerstone of our constitutional democracy, protected for hundreds of years by the Bill of Rights and regularly reaffirmed by both Parliament itself and the courts when the matter is challenged. The transparency of Members interests is in no sense incompatible with that freedom. On the contrary, it is designed to promote it, by ensuring that the conduct of Parliamentarians ought not to be casually impugned by reference to allegations of hidden interests, and by allowing Members to be mindful of any appearance of conflict between private interests and the public interest, and to deal with any such appearance openly and explicitly as and when it may be relevant to the conduct of public affairs. It is a discipline whose focus is on tangible, material benefits to the politician, whether pecuniary or in kind, rather than on the subtleties of the exchanges of advantage (including reputational advantage) which characterise press/political relationships. Although it can, and does, for example tell the public when a politician is being paid to write articles for a newspaper, or when he or she holds a position on the board of a media organisation, it is not intended to go very much further than that in telling the public about the relationship. The principal context in which there is a regulatory dimension of any sort to the relationship between the press and the politicians, therefore, is of restricted application to politicians who are members of Government. It is obvious why that should be so. Government politicians are in a unique relationship of power and accountability in the conduct of public business, to the electorate. They are decision-takers. That is underpinned both in law and in practice. As a matter of law, there are a number of disciplines which are capable of imposing constraints, almost entirely of transparency, on the relationship between Government Ministers and the press. The Freedom of Information Act, for example, will oblige the disclosure of information about that relationship to the public on demand, subject only to exemptions imposed to protect countervailing aspects of the public interests. Its application is, however, limited to recorded information, and to information held by or on behalf of government (rather than information held by Ministers in a party or personal capacity). Government accounting rules apply disciplines and transparency measures to government spending on issues relating to the press, as they do to all government spending. And the ordinary requirements of public law in relation to decision-making in government, including on matters such as public consultation, the giving of reasons for decisions, and the availability of judicial review, will also where appropriate apply to matters and interactions relating to the press.
4.4
4.5
4.6
4.7
4.8
32
http://www.parliament.uk/mps-lords-and-offices/standards-and-interests/
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4.9
Other, less legally-based, disciplines will also apply but very specifically only to the conduct of government business relating to the press, principal among which is the Ministerial Code.33 As former Cabinet Secretary Lord ODonnell explained to the Inquiry:34 The Code sets out, in a public document, the standards of conduct expected of Ministers and the lines of accountability. There are high standards of conduct expected of Ministers and rightly so because they are decision takers and it is therefore important that their decisions and actions are beyond reproach. Recent improvements by this Government enabling greater transparency around meetings and hospitality are also to be welcomed. I believe this transparency about standards of conduct increases and helps ensure accountability. The aspects which I believe to be relevant to the conduct of relationships between the media and Ministers are accountability, collective responsibility, openness and the need to avoid any conflict of interests, including ensuring that decisions are taken on the merits of the case and that no improper influence is brought to bear. These provisions operate on a daily basis through the relationship between Ministers and their Permanent Secretaries. I believe the Code is stringent and provides for a high bar. A recent addition in July 2011 which provides for the publication of information about Ministers meetings with senior media executives shows how the Code is an evolving document able to react to developments as they arise.
4.10
In his oral evidence to the Inquiry, Lord ODonnell also explained that the Ministerial Code is principles-based35 and intended to address not just conflicts of interest but also the perception of conflict.36 The amendment of July 2011, made with the support of the Prime Minister at the same time as the Inquiry was set up, provides that:37 The Government will be open about its links with the media. All meetings with newspaper and other media proprietors, editors and senior executives will be published quarterly regardless of the purpose of the meeting.
4.11
Lord ODonnell explained that this insertion was made to avoid any possible doubt that the requirements of paragraph 8.14 of the Ministerial Code applied to meetings with senior press figures: Ministers meet many people and organisations and consider a wide range of views as part of the formulation of Government policy. Departments will publish, at least quarterly, details of Ministers external meetings.
I
4.12
Self-evidently now, this covers a whole range of lobbying activity and is apt to cover meetings with the press.38 On the face of it, these words are extremely wide and, to repeat the words, appear to cover every meeting regardless of purpose. However, it is also important to understand the limitations of the Ministerial Code. First, it obviously has no application to Opposition politicians who are not, by definition, present decision-takers, although they may very
33 34
http://www.cabinetoffice.gov.uk/sites/default/files/resources/ministerial-code-may-2010.pdf p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Lord-ODonnell.pdf 35 p34, Lord ODonnell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-14-May-2012.txt 36 pp 35-36, ibid 37 http://www.cabinetoffice.gov.uk/content/ministerial-conduct-and-guidance 38 p36, Lord ODonnell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-14-May-2012.txt
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well be engaging in interactions, particularly as general elections draw near, with a view to establishing relationships and preparing for decision-taking should they be offered the opportunity of power by the electorate. Second, it does not apply to politicians of governing parties who do not hold government positions; again, they are not by definition decisiontakers, although they may hope for preferment, not least by establishing useful relationships or otherwise acting on behalf of, or with a view to attracting the approval of, government ministers. Third and of critical significance, it addresses only Ministerial activities that are classified as government business, excluding therefore activities classifiable as either party or private business.
The gaps in the existing framework

4.13 In a nutshell, it is because of the potential overlap between the way business can be classified as government, party or private that the relationships between the press and politicians can create problems in the context of the lobbying activities of the press. The general public interest considerations underlying the transparency requirements of the Code are being only partially served by what is presently required. As I have said, those general public interest considerations do not necessarily lie in the suppression or discouragement of lobbying relationships. They lie in the transparency of those relationships and the enhanced accountability which follows from that transparency. Just as in the case of Parliamentary disclosure of interests, good democratic governance requires that the interests and influences to which Ministers are subject should not necessarily be subject to restriction as such, but should be known about and understood, so that judgments can be made about their decisions and the decisions will be taken in the knowledge that those judgments will be made. Put at its crudest, the problem of the incomplete fit between the public interest considerations underlying the Ministerial Code and the realities of political/press relationships, raises a form of what might be described as anti-avoidance issues. If it is too easy for a Minister to classify an encounter with the press as political or personal business rather than government business, the formal checks and balances on propriety and accountability in decision-taking become too marginal to do proper service. Furthermore, that threefold classification into government, party and personal relationships may be more theoretical than real where relationships with the press are concerned; such relationships are characteristically more complex and fluid than that. Again, from the same perspective, if a Minister and a press proprietor or executive arrange to conduct aspects of their relationship via intermediaries, then a transparency provision biting only on the Ministers own behaviour will have little real force. Put slightly differently, and allowing for the observation of the spirit as well as the letter of the Ministerial Code, the problem is one of partial transparency which potentially distorts the public perspective on the relationship. In turn, that potentially does damage to the public accountability which the Code is intended to serve. If the public is told that a politician has a single meeting with a press interest on government business, but knows nothing about the weekly or daily interactions on political or personal business, to a potentially significant degree, the public is being misinformed in a matter in which it has a legitimate interest. As I have said, the three are not so easily separable in practice.
4.14
4.15
4.16
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4.17
And, just as important, in this situation, there is a very powerful incentive and momentum precisely for the lobbyists of the press to guide their political relationships into the private sphere of friendships, and to cultivate the private dimensions of the political friendships they already have. That need not be a cynical process, but may simply be intuitive. I have no reason to doubt that the appetite for and gift of political friendships of people like Rebekah Brooks and Rupert Murdoch was (and was almost certainly experienced as) wholly authentic. But such friendships not only intensify the influence of the lobbyist, they pull the relationship (including its lobbying dimension) out of the sphere of accountability. The closer, the more intense, the relationship, the lesser the public accountability. The evidence the Inquiry received about this hinterland of press/political interaction at the level of personal friendships was one of the particularly cogent features of this Module of the Inquiry in the public mind. I readily recognise that this interest had its trivial and, indeed, intrusive dimension: this, in itself, is a problem. I have repeatedly emphasised that there are and must remain limits on the legitimate public interest in knowing the details about politicians private lives and genuine friendships. But the public interest in knowing something of the fact and degree of such friendships, where they overlap with extremely powerful lobbying interests, is another matter. In that, it is my view that the Inquiry performed a legitimate public service, and it is in this area that I consider that a way forward needs to be found. It is important, however, to be very clear indeed about the limited nature of the problem I see here. I hope that I have already put beyond doubt that I emphatically do not see any case at all for interference in the day to day business of the interaction between journalist and politician. Political journalism as a genre has a more powerful claim than many others to be at the heart of those essential functions the press performs in a democracy, keeping the public informed, holding power to account, and providing a vibrant forum for vigorous debate on matters of public life. This is turn requires free-flowing interaction between politicians and the press. The issue is not one about political journalism, nor indeed about journalism of any sort. It is about the relationship between the press and politicians, complex and multi-faceted as it is, as the arena within which decisions about public policy relating to the media are lobbied about and, ultimately, taken. The essence of the problem disclosed by the evidence to the Inquiry is not just that politicians may have simply spent too much time and effort on the press, to the detriment of other claims on their attention to the conduct of public affairs. It is that, although it has not been their intention, politicians have risked actual or potential conflict of interest (via both fear and favour) and have done so in dealing with sources of influence which are, in themselves, powerful and unaccountable. The perception that politicians have done this out of public sight has diminished public scrutiny and accountability and run the risk of eroding public trust as the full facts emerge. In this way, a view gains ground that power and influence have been traded in ways which are contrary to the public interest, most especially in relation to media policy issues. The principal example of that relates to the long history of missed opportunities to address public concerns about press standards.
4.18
4.19
4.20
4.21
I
4.22
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5. Recommendations for future relations between politicians and the press

The starting point
5.1 I should perhaps begin this section by being as clear as possible, again, about the matters I have no intention of affecting by means of my recommendations in this Part of the Report. First, nothing I suggest is intended to intrude into or impact on the private lives and private relationships of either of politicians or press figures. Second, I have no intention of affecting political journalism as I have already defined it. This is a problem about public policy making, about the political approach to media policy and press standards in particular and concerns the relationship between politicians and the policymakers and decision-takers of the media, that is to say with proprietors, senior executives and editors. This is the only area which, to my mind, can cause real concern, not least because of the power of their ability to lobby and use that ability (along with an extremely effective megaphone) to serve their own interests. In taking a different approach to these relationships I entirely endorse the analysis of Lord ODonnell in these terms:39 [T]here will be conversations and meetings with individual journalists which are the basic lifeblood of politicians and the media interacting. If you see in the House of Commons, there are many media representatives there and Ministers, they interact, they talk, they phone each other. So Im putting the bar at the editors and news proprietors above. . Ive taken the view that we should define the line at fairly senior proprietors and senior editors. I think they are different because of the ability of newspapers to very strongly support particular political parties. So I think there is something to be said for those things being noted in a transparent way, but they shouldnt be stopped. 5.4 The core of the problem is the accountability of politicians, not the conduct of the press. This is not simply a matter of significance in its own right. It plays into the wider concern about the role and responsibilities of politicians in (or aspiring to) decision-making positions in Government and the problems of public perception which these have generated.
5.2
5.3
Transparency
5.5 To the extent that the Inquiry has gone any way towards affecting the approach to the relationship between senior politicians and the press, it has done so by shining an intense but temporary light on the issue. Transparency, in this sense, provides both an opportunity for the public to understand and assess along with a discipline which is likely to touch on the conduct of those involved. However, longer term, there is not enough in the current transparency provisions although these are themselves designed to underpin public confidence. There needs to be a workable and proportionate middle way for the future.
39
p37, lines 14-24 and pp 39-40, lines 20-1, Lord ODonnell, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/05/Transcript-of-Morning-Hearing-14-May-2012.pdf
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5.6
In the circumstances, I have concluded that it is appropriate to offer some detailed thoughts on possible improvements. The fact is that the relationship between politicians and the press has incentives on both sides which could serve to encourage a lack of openness so that a simple and generalised appeal to transparency is unlikely either to be self-fulfilling or, more widely, to command public confidence. That is particularly so in the area of media policy which is the principal subject-matter of this Report, namely press standards themselves. This is an area in which press lobbying can be particularly powerful by virtue of being concerted. It is illuminating to note the limited extent to which the press hold power to account when that power resides in the influence wielded by the organisations of the press themselves, even in the case of competitors (to which generalisation, there are obvious, honourable, exceptions). It is an area in which I have no doubt that the press have acted and will continue to act as powerful lobbyists and yet one in which (by admission) the politicians have repeatedly failed to respond to public concerns as one series of problems follows another: this is notwithstanding the bewildering number of inquiries that have been conducted. It should not be surprising, therefore, that I have concluded that further steps do need to be taken to address public concerns together with the realities of, and perceptions surrounding, the relationships which have given rise to them. Before discussing how it might be possible to increase the visibility of the way in which politicians and the press interact at the highest levels of policy formulation, it is necessary to recognise that transparency, on its own, has its limits. There are three which I bear particularly in mind in making the recommendations I do. (a) There are very proper limits on the extent to which public intrusion into matters genuinely private is tolerable or appropriate. The detail of truly private friendships and relationships between politicians (however much they may have invited or permitted intrusion into their privacy) and individuals within the press merits respect. There is a danger of the perverse incentive, well recognised in the context of regimes such as that established by the Freedom of Information Act. This danger is that measures to increase transparency simply drive activity into a different place. The result is that incentives are to be found for avoidance measures (such as ignoring the need to keep some record or finding alternative ways to communicate) which serve only to put accountability ever more distantly out of reach. There is also a risk of a different effect. Excessively burdensome rules about transparency are impractical; mistakes and omissions then become virtually inevitable and, in themselves, produce unwarranted critique and suspicion. Ultimately, this is all counterproductive and erodes trust.
5.7
5.8
(b)
(c)
I
5.9
Towards more transparent relationships

I believe that further steps in the direction of transparency are necessary in order to reassure the public and restore confidence in the way the politicians handle those relationships with the media in which lobbying is a real possibility. Without seeking to be prescriptive as to what should be said, therefore: I recommend as a first step that political leaders reflect constructively on the merits of publishing on behalf of their party a statement setting out, for the public, an explanation of the approach they propose to take as a matter of party policy in conducting relationships with the press.
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5.10
The first value of such a public exposition is that it would be a recognition of the potential pitfalls of the relationship, a statement of intention to promote a more transparent approach, and an explanation of how the public could expect to benefit as a result. That itself would help to address issues of public confidence. Clearly setting out the rules they proposed to apply to themselves, and by which they expected to be judged, would be both open and demonstrably accountable: no doubt political journalism could be expected to play its part in assessing the approach and, thus, holding political power to account. In recommending to political leaders how they might best go about that task, I cannot improve on the evident animating spirit and exhortation of renewal contained in the Foreword of the Prime Minister to the most recent edition of the Ministerial Code,40 published when the current Coalition Government took office following the 2010 General Election: Our new government has a particular and historic responsibility: to rebuild confidence in our political system. After the scandals of recent years, people have lost faith in politics and politicians. It is our duty to restore their trust. It is not enough simply to make a difference. We must be different. We have promised the people a coalition government united behind the key principles of freedom, fairness and responsibility. Every day of this government we must make good on that promise, acting in a way that reflects these principles. In everything we do the policies we develop and how we implement them, the speeches we give, the meetings we hold we must remember that we are not masters but servants. Though the British people have been disappointed in their politicians, they still expect the highest standards of conduct. We must not let them down. We must be different in how we think and how we behave. We must be different from what has gone before us. Careful with public money. Transparent about what we do and how we do it. Determined to act in the national interest, above improper influence. Mindful of our duty. Above all, grateful for our chance to change our country.
5.11
5.12
Remaining with the spirit of the Ministerial Code as a starting point, it is worth considering the possibility that there should be greater Ministerial transparency beyond its current scope. The Code itself prescribes the approach that should be adopted by Ministers to many if not all aspects of their ministerial duties relying on the clarity of the boundary between what may be described as political or private activities on the one hand and the conduct of government business on the other. However, there is a real risk that the two become blurred in the context of influential media relationships and that the latter will be transacted within the space left for the former; that risk should not be overlooked. The amendment last year to the Ministerial Code recognised the nature of the problem but it remains. The Inquiry has revealed that the way in which some of these relationships have just been too complex for the Ministerial Code to render what is happening fairly transparent to the public in even the most basic way: whether or not lobbying of Ministers on matters of public policy takes place in what is party or private time, there is likely to be a public perception that it is. This is not satisfactory especially where the public interest in a free and responsible press is concerned and I have little doubt that what has been revealed in the course of the Inquiry has changed public perceptions and expectations in this respect: the challenge is now to
5.13
5.14
40
http://www.cabinetoffice.gov.uk/sites/default/files/resources/ministerial-code-may-2010.pdf
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meet those expectations in a way that both respects where the boundaries should lie and is workable. 5.15 In the light of the limitations to the Ministerial Code, I conclude that senior politicians should now give very serious consideration to accepting the case for public transparency at least to some degree beyond interactions which may be narrowly categorised as entirely on government business in order to give a more rounded picture. That does require the contemplation of transparency measures in relation to conduct in what might be capable of being described as the political or private activities of politicians, but which, for reasons I have described above, I consider to be in practice inseparable from their conduct of public business. As I explain below, I have only very limited steps in mind. I am also aware that the concerns that I have expressed about, for example, the use of private means of communication (personal phones, texts and so on) for transacting government business may require a broader look at the issues than is open to me and, furthermore, that there could be wider implications to that which I suggest. I venture into this area because I believe that the concerns about the relationship between politicians and the press which have been ventilated in the Inquiry do justify a proportionate and appropriate response. In the circumstances, in encouraging politicians of all parties to consider the problem, I set out steps that could be taken in this direction simply as a starting point to their deliberations. Having said that, I remain of the view that there are problems in this area which are of special relevance to the relations between politicians and the press. I believe that these aspects can fairly be dealt with without being made to wait for any broader review. First, I have come to the very clear conclusion that transparency must be improved not just in relation to interactions taking place directly between senior politicians and proprietors, newspaper editors and senior executives, but also where they take place between their respective agents, such as junior political colleagues, SpAds and civil servants on the political side, and representatives and professional lobbyists on the press side. As I have said, while the focus must be firmly on the policy-makers and decision-takers, and while it is important to leave plenty of unrestricted space for the ordinary transactions of political journalism, the public would be entitled to be sceptical if measures designed to increase transparency were circumvented by the use of third-party agents or back channels. Needless to say, these measures should apply to such third party agents only where they are acting in that capacity, that is to say on behalf of their principals in matters of policy. Second, I also conclude that it would be in the public interest for obligations of greater transparency to be undertaken not only by Ministers in Government but also by the Leader and Front Bench of the Official Opposition (and, as in the recent past, the Leader and Front Bench of a major third party). In this I am conscious of stepping into an area of public life, outside the propriety and transparency constraints of the conduct of elections and of Parliamentary and Government business, in which public accountability is an underdeveloped concept, but it seems right to do so. I say that in the first place because in answer to a general question on the comparison between Government and Opposition, the current Leader of the Opposition has accepted that, broadly speaking, similar standards should apply.41 Not the least reason for this entirely appropriate stance is that the lobbying activities of the press in relation to politicians should not, in my view, be undertaken on anything other than a level playing field in terms of party politics.
5.16
5.17
5.18
I
5.19
41
p11, lines 1-4, Ed Miliband, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-ofAfternoon-Hearing-12-June-2012.pdf
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5.20
In any event, there is another, substantive reason. This relates to the public interest in understanding not only the press influences on the exercise of executive power, but also the influences on the aspirants to executive power. The lobbying relationship between the press and the politicians is not short term with the impact of general elections being only one part of the continuum. The Report has noted the issues that arise for the conduct of the political/ press relationship in the transition from Opposition to Government status, particularly after lengthy periods of Opposition and, as Alastair Campbell recognised, there is a risk that habits formed in Opposition will remain entrenched in Government in a way that is not, ultimately, conducive to the public interest.42 In these circumstances I have further concluded that public interest considerations of transparency apply also in respect of opposition parties who may aspire to, or find themselves in a position of, holding a balance of executive power if not exercising it outright. This conclusion only serves to underline the critical requirement of a cross party approach to these issues while they are at the forefront of public attention. Lord ODonnell put it this way:43 I think theres an opportunity, a window of opportunity to get the opposition parties together and say to them: can there be a set of guidelines, code of conduct, something, which would cover these relationships which all could sign up to? My recommendation is that this opportunity be taken. My starting point, as I have explained, would be parity of application for both Government and Opposition, but if there are genuine points of distinction no doubt they could be explored and explained to the public.
5.21
5.22
That is not to say that I do not understand the significance of suggesting measures to be followed both by Government Ministers and members of the Opposition Front Benches. Their positions bear comparison from the point of view of the public interest in transparency, but not of course in terms of the regulatory context. The Ministerial Code has no application outside government. However, I do not recommend any change that will (or should) have the force of law and the Government itself will have to reflect on whether acceptance of my recommendations would have implications for the Ministerial Code or would be better dealt with otherwise. I fully recognise that in both cases, although I give an indication of where I consider improvements could be made, implementing any such steps would have to constitute something of a self denying ordinance. Having said that, I have no doubt that the public needs and expects increased transparency from all political leaders. Without a limited (but significant) improvement in the visibility of contact at the highest levels between proprietors, newspaper editors and senior executives on the one hand and those who develop media policy on the other, the public is entitled to be sceptical that it is being left out of account in exchanges of influence. I am concerned that lack of trust and confidence will inevitably ensue.
5.23
What might be done?

5.24 The amended Ministerial Code now requires of Ministers a quarterly publication of all meetings between Ministers and senior media figures, regardless of the purpose of the meeting. I suggest therefore that consideration be given to the adoption of the same principle of transparency, in the first place for:
42 43
p20, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Alastair-Campbell.pdf pp28-30, Lord ODonnell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-MorningHearing-14-May-2012.txt
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(a) (b) (c)
Opposition Front Bench spokesmen; meetings involving not just the politicians and media principals themselves but also the agents of each as described above; and so far as practicable (about which I say a little more below) meetings between these principals or agents in whatever capacity in which the meeting could be said to take place.
5.25
I recommend that consideration be given also to the publication not merely of the fact of such meetings in themselves, but also the fact of any discussion taking place at such meetings of media policy issues, by which phrase I mean the formulation and implementation of general public policy in relation to the media, including in relation to media standards, as well as any significant policy issues or decisions relating to individual media organisations. What information might be published about the content of any such discussion should of course be guided by the particular public interest in the transparency of such discussion in itself. It must, of course, in doing so have regard to other public interest issues such as commercial confidentiality and reasonable personal privacy but, overall, could depend on the balance of the public interest on a case by case basis. Even an explanation of the reasons for withholding information would aid public understanding. Enhancing public confidence depends on the spirit of any such measures and a genuine willingness to address the issue of how matters look to the public, rather than a legalistic or bureaucratic focus on the specific formulation of any provision. I am not recommending that transparency measures should necessarily extend further into content beyond a very general identification of topics covered. Furthermore, it is clear that the problem does not simply (or even mainly) arise within face to face meetings and, in my view, there is more than a legitimate case for contemplating some limited transparency obligation in relation to other communications (such as correspondence, phone, text and e-mail). Again, there should be no suggestion of exhaustive new requirements for record keeping or the collection of statistics; that would be both impractical and unnecessary, not to say counter-productive. However I do not consider that it need be either intrusive or burdensome for politicians to indicate on a quarterly basis, in relation to any individual senior principal within the press (or their agents), by way of general estimate, something about the frequency or density of such interactions, for example by reference to some common-sense and very general published parameters. I do not suggest there is any case for descending into detail or content. My purpose in identifying these possibilities is simply to suggest that consideration be given to a moderate, achievable move in the direction of further transparency and improvement of public confidence. I re-emphasise that the class of persons within the media to whom it is intended to apply is very limited; the point is that it is a category which produces unique contexts for press lobbying and, in consequence, unique public interest concerns. Common sense has an overarching part to play. There are, for instance, a number of cases in which meetings and other communications may take place extremely frequently, for example in the case of close lifelong friends or partners. In cases of genuine impracticability of this sort, it would undoubtedly be sufficient simply to note the fact of that relationship. Lord ODonnells approach to such cases was this:44
5.26
5.27
5.28
I
5.29
44
p38, lines 11-24 and p39, lines 5-12, Lord ODonnell, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/05/Transcript-of-Morning-Hearing-14-May-2012.pdf
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Where you have a lifelong friend who happens to work in industry X, what you should do is disclose that to your permanent secretary and you say you meet this person socially all the time. If it were to happen that a policy issue arose where industry X was absolutely crucial and it would have a big impact on that, then stronger degrees of transparency might be required and you might need to remind the minister that actually this person that they socialise with all the time, they have to be particularly careful or they might want to amend their behaviour in some way during a particular period when that was a big issue. . All politicians come into politics having developed a social circle already. They have friends. Its a rather good thing, in my view, that politicians have got quite normal relationships and they have friends from different backgrounds, different - maybe in industry, they may be trade unionists, they may be teachers, nurses. Thats a good thing. 5.30 As I said at the time that Lord ODonnell gave this evidence, I entirely agree and absolutely nothing in this Report should be taken as suggesting that this should change. It is difficult enough to encourage able people to enter public life and not only must a measure of trust be extended to all who do but, additionally, steps must be taken to ensure that they, also, are provided with a sufficient amount of private space. I have not, however, found myself able to conclude that internal disclosure mechanisms (such as Lord ODonnell mentions when he refers to private disclosure to a senior official) will be sufficient as a means of restoring public trust and confidence. The problem is not a narrow one of conflict or propriety; it is a problem of public perception and legitimate concern about the extent to which existing accountability mechanisms do not provide a sufficient answer. The relationship between the press and the politicians, in this albeit limited respect has become something which the public needs to be able to see and understand. In conclusion, I have no doubt, that the risks which I am recommending that senior politicians address are clear for all to see. If their interactions with senior press and media executives are approached fairly and squarely with those risks consciously understood, and with commensurate respect for public perceptions and the public interest in transparency, this is as much as can be achieved. In the circumstances, I recommend that Leaders, Ministers and Front Bench Opposition spokesmen consider publishing: (a) the simple fact of long term relationships with media proprietors, newspaper editors or senior executives which might be thought to be relevant to their responsibilities; and (i) details of all meetings with media proprietors, newspaper editors or senior executives, whether in person or through agents on either side, and the fact and general nature of any discussion of media policy issues at those meetings; and a fair and reasonably complete picture by way of general estimate only, of the frequency or density of other interaction (including correspondence, phone, text and email) but not necessarily including content.
5.31
(b) on a quarterly basis:
(ii)
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Implementation
5.32 There is already room for enormous value to be obtained from acceptance in principle of the need for greater transparency. This Inquiry was commissioned with cross-party political consensus specifically to respond to public concern; it follows the concession both from the Prime Minister and the Leader of the Opposition that the relationship between the press and politicians had become too close. I have set out in this Part of the Report the ways in which it seems to me tha

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The Leveson Inquiry

culture, practices and ethics of the press

The Right Honourable Lord Justice Leveson November 2012

AN INQUIRY INTO THE CULTURE, PRACTICES AND ETHICS OF THE PRESS

London: The Stationery Office

250.00 4 volumes not to be sold separately

Printed on paper containing 75% recycled fibre content minimum.

The Leveson Inquiry

PARt A: the InquIRy

Chapter 2: the approach

Chapter 3: Further issues of law

Chapter 4: the Report

PARt B: the PRess And the PuBlIC InteRest

Chapter 3: Competing public interests

The Leveson Inquiry

Chapter 4: The responsibilities of the press

PARt C: the PRess

Chapter 2: The press: history, governance structures and finances

Chapter 3: Alternative news providers

Chapter 2: Self-regulation of the press

PARt e: CRossIng legAl BoundARIes: The CrImInAl And CIvIl lAw

Chapter 3: Operation motorman

Chapter 4: Phone hacking: the expanding impact of Operation Caryatid

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Chapter 5: A new approach to the allegations

Chapter 2: Good practice

Chapter 3: Complaints of an unethical press

Chapter 4: Some practices at the news of the world

Chapter 5: some case studies

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Chapter 6: Criticisms of the culture, practices and ethics of the press

PArT G: The PreSS And The POlICe: The relATIOnShIP

Chapter 2: The history of the relationship: different Approaches

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Chapter 4: The press and the police: conclusions and recommendations

Chapter 2: Operation motorman

Chapter 3: Other possible regulatory options

Chapter 4: the ICo and the press today

Chapter 5: Issues about the legal framework

Chapter 6: The relationship: the ICO and the press

Chapter 7: Summary of recommendations

PARt I: the PRess And PolItICIAns

Chapter 3: new labour

Chapter 4: The Conservative revival and the coalition

Chapter 5: Media policy: examples from recent history

Chapter 6: media policy: The BSkyB bid

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Chapter 7: Further political perspectives on relationships with the press

Chapter 8: Conclusions and recommendations

Chapter 9: Plurality and media ownership: conclusions and recommendations

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Chapter 3: The civil law

Chapter 4: The Press Complaints Commission and its effectiveness

PARt K: RegulAtoRy Models FoR the FutuRe

Chapter 2: The self-regulatory model proposed by the PCC and PressBoF

The Leveson Inquiry

Chapter 3: Analysis of the model proposed by the PCC and PressBoF

Chapter 4: Other proposals submitted to the Inquiry

Chapter 5: International comparators

Chapter 6: Techniques of regulation

Chapter 7: Conclusions and recommendations for future regulation of the press