The transcripts of the official inquiry into the culture, practices and ethics of the press. More…

  • Before embarking on the evidence for today, there are a number of other issues which I must mention.

    First, there continues to be evidence of a leakage to the press of information that is confidential to the Inquiry. Everyone will remember that an early draft of Mr Alastair Campbell's statement was disclosed, but investigation revealed that the draft was not one that had ever been shown to the Inquiry, thereby exonerating all those at the Inquiry, along with the assessors and core participants who had access to the statement that he did in fact serve. Other, more recent leaks cannot be so explained, and the timing suggests that this has only happened after statements have been released by the Inquiry team to the wider audience entitled to see them, before the witness attends the Inquiry and they are formally published on the website.

    It is important to emphasise that early sight of these statements is subject to the strict conditions of confidentiality that that I imposed using the powers set out in Section 19 of the Inquiries Act 2005. Further, all those within the core participants and their legal representatives who have access to documents on the Inquiry's document management system Lextranet have signed confidentiality undertakings. Against that background, therefore, any leak is very disappointing and a matter of concern.

    Everyone has spoken about the difficulty of pursuing an investigation aimed at identifying who is responsible for the leaks that have occurred, but unless it stops, I shall consider restricting the ways in which the statements are made available. This could include requiring anyone who wishes to read statements in advance for the purpose of suggesting lines of enquiry for counsel to pursue to do so in the Inquiry offices rather than by having access to the Lextranet system.

    In the meantime, I require all those who have been authorised to access the Lextranet to sign a declaration in standard form that the requirement of confidentiality is understood and that the signatory has not been responsible for passing any information contained within any statement to anyone who has not signed the confidentiality agreement.

    I appreciate the limitations of this step, and recognise that it might be considered somewhat offensive by 99 per cent of those who are following faithfully the requirements of the Inquiry, but it is the least that I can do to bring home how seriously I view unauthorised disclosure information and how much more seriously I shall view it as the Inquiry proceeds. The Inquiry team is itself perfectly prepared to lead the way in signing such a declaration, although I do not believe for one moment that that is where the problem lies.

    In addition, should any core participant wish to add a person to the confidentiality circle, agreement must be obtained from the Inquiry solicitor before a confidentiality undertaking is signed and approved.

    Finally, it is obviously important to remind everyone, in particular the press, of my order as amended, now dated 7 December 2011 to this effect:

    "1. No witness statement provided to the Inquiry, whether voluntarily or under compulsion, nor any exhibit to any such statement, nor any other document provided to the Inquiry as part of the evidence of the witness, not otherwise previously in the public domain, shall be published or disclosed, whether in whole or in part, outside the confidentiality circle comprising of the chairman, his assessors, the Inquiry team, the core participants and their legal representatives, prior to the maker of the statement giving oral evidence to the Inquiry or the statement being read into evidence or summarised into evidence by a member of the Inquiry team, as the case may be, without the express permission of the Chairman.

    "2. This order is made under Section 19(2)(b) of the Inquiries Act 2005 and binds all persons, including witnesses and core participants to the Inquiry and their legal representatives and companies, whether acting personally or through their servants, agents, directors or officers or in any other way."

    "Breach of this order by anyone can be certified via the High Court and treated as contempt. See section 36 of the Inquiries Act 2005."

    This is not just a question of publishing some detail that will emerge in the evidence a few days later. It affects the confidence that witnesses can have in the Inquiry that their evidence is being treated confidentially until I have decided that it should become public and furthermore have the chance to consider redactions of material which, for different reasons, all of which are in the public interest, it is suggested should not be included.

    So that it is quite clear, the risk of a reference to the High Court catches a newspaper that publishes material disclosed by some source in breach the order.

    The second matter that I wish to mention concerns the recent public announcements in relation to the PCC by Lord Hunt. He is absolutely correct to observe that from the outset of this Inquiry I have said to editors that the problems of press regulation are theirs and that they should seek to find a solution. I have equally emphasised that the solution not only has to work for them, but it must also work for me, by which I have explained I mean the public at large. That public includes all those who recognise the vital importance of freedom of speech and a free press, but have made it clear that regulation, however so-called, has failed, and that there has in truth been no mechanism for independent challenge to and restraint upon the excesses of the press.

    To say that the PCC was never a regulator, irrespective of the powers that it might have been able to exercise, and irrespective of the fact that it was badged as an effective regulator after Sir David Calcutt's second report, only underlines the concern that the public have been misled about what it could do.

    In evidence, Lord Hunt outlined his model of a five-year rolling commercial contract and, without committing myself in any way to such a model, I encouraged him to continue working, not least because I expect the industry to put forward to me the strongest form of regulation that it could devise in order that I could test it against what, on full examination and analysis during Module 4, becomes the minimum requirements of an effective system. I am grateful to him and Lord Black for keeping the Inquiry team informed about the progress that has been made but it is important that this encouragement should not be taken as endorsement, let alone agreement. I have raised a number of questions and do not yet know the answers to them.

    By way of illustration, I must ask whether a five-year rolling contract is sufficient to deal with the fundamental problem of industry acceptance. The threat of what I might recommend may well encourage to sign up those who, for reasons which have been explained, do not consider that the PCC has worked for them but that simply potentially puts the problem off for five years. That is a more serious issue than has manifested itself in the past, because previous crises have concerned adequacy of regulation and there was no problem of publishers leaving the system.

    Secondly, I am keen to understand what is proposed in relation to the structure surrounding the new regulator. Is it proposed that PressBoF and the Editors' Code Committee should remain staffed in the same way? On the substance, I will need Lord Hunt to address the proposed attitude to third party complaints or group complaints where there is no identifiable victim. What is the view about concurrent legal proceedings and why should the complaints arm not be able to award compensation? Informal resolution is obviously important, but how will that work as a mechanism to maintain, if not improve, standards? Is the new independent assessor an appeal mechanism? And if so, what will be done to prevent complaint fatigue and what has been said to be the grinding down of complainants by passage of time? What is meant by "a serious or systemic breakdown in standards"?

    This list of questions is not intended to be exhaustive, and I deliberately ask them in an entirely open way. I have raised them simply to underline my position. I do not suggest that Lord Hunt seeks to pre-empt me or that he proceeds on the basis that I have agreed with the approach which he proposes. My mind remains open to all options, although if, as Lord Hunt said, there are members of both Houses of Parliament looking for a chance to kerb press freedoms and influence conduct, I would be grateful if he would provide evidence of that fact.

    I repeat that Lord Hunt and the industry must continue to work on what they see as the best way forward, not, I hope, simply viewing the task as one of trying to persuade me to adopt what for them is a least-worst option. They must expect that the ultimate suggestion will be subjected to forensic analysis.

    That will happen for their ideas, as it will happen to the ideas that have been submitted to the Inquiry by other individuals and groups. I will recommend what I perceive to be the most effective and potentially enduring system. It will then be for others to decide how to proceed.

    The third topic that I want to address this morning concerns a series of technical issues as to which I invite submissions from core participants. Rule 13 of the Inquiry rules 2006 permits me to send a warning letter to any person whom I consider may be or who has been subject to criticism in the Inquiry proceedings or about whom criticism may be inferred. Further, the report must not include be any explicit or significant criticism of a person, unless I have done so, and provided a reasonable opportunity to that person to respond.

    For individuals, that exercise is straightforward, but I will continue to apply the principle that I will not criticise any individual in relation to allegedly criminal conduct that is presently or foreseebly the subject of criminal investigation or might give rise to criminal proceedings, whether or not such an investigation is presently being undertaken. But I am presently minded to the view that this does not prevent me from criticising any individual whom I do not suggest or imply participated in illegal conduct but whom I find knew perfectly well what was going on, albeit that he or she now denies all knowledge of any such thing.

    To take an example away from the Inquiry, for X to know perfectly well that Y has stolen property, whether he saw him do it or because Y admitted it to him, does not make X guilty of any crime, but it seems to me that if I conclude, assuming it to be relevant, that X falsely denied that he had such knowledge, that is a potential criticism for which warning must be given, and furthermore, that so to conclude does not imperil a criminal investigation or prosecution or represent unfairness to anyone, as I try to discern the custom, practices and ethics of the press.

    Second, the word "person" is not defined by the rules or by the Inquiries Act 2005. Applying the rules of construction to be found in schedule 1 of the Interpretation Act 1978, it seems to me that "person" includes a body of persons incorporate or unincorporate. Is that correct? If it is, and, for example, I wish to consider criticising the News of the World as a title because of its illegal or unethical practices, but without descending into analysis of precisely who did what to whom, is it appropriate to identify the News of the World as a title and address a Rule 13 to the title, or should it be addressed to News International Limited or both?

    That is not unimportant, given that complaints have been made about a number of the News International titles which have been named during the course of the Inquiry. Similar questions might arise in relation to other media entities that operate more than one title.

    Third, if I wish to criticise a title by name, I recognise the need to provide notice under Rule 13, but what is the position if I consider that any of the subparagraphs (a) to (c) of Rule 13(1) are satisfied but only in the sense that I consider that the relevant criticism relates to the culture, practices and ethics of the press as a whole, rather than any particular newspaper group or individual title.

    In one sense, stating the criticised culture, practice or ethical approach under resume 15(1)(a) will be straightforward and high level. A statement of the facts can similarly be high level, and the evidence simply the material that has been put before me.

    What I wish to hear submissions about, however, is whether such criticism is caught by Rule 13 at all. I am not thereby criticising any individual or person. Indeed, the individuals may be less worthy of criticism because they're simply part of the culture, and following the practice which is endemic to the industry, or at least to part of it. Furthermore, the closing submissions of each core participant will doubtless address the question of custom, practice and ethics, and I am unsure what a further bite of the cherry will achieve.

    An example that might assist: if I were minded to conclude that whether or not the illegality of interception of mobile telephone messages was appreciated -- that is to say, the fact that it was illegal -- the fact that it could be done and was being done was widely known among a section of the national press beyond a rogue reporter at the News of the World, is that a criticism that I have to address to every reporter or every title, or is it sufficiently high level that it does not contain an individual criticism of any person within Rule 13, and does not require prior notification within the rule?

    I appreciate that in his challenge to the concept of anonymous evidence, Mr Mark Warby Queen's Counsel for Associated Newspapers addressed the Divisional Court as to what he described as "class libel" (see [2012] EWH C57 (Admin) paragraph 38) and I am prepared to hear further submissions on this topic, although for my part I do not find the concept particularly helpful when seeking to determine culture, practices and ethics.

    The technical issue is significant because time will not permit me to approach notices under Rule 13 only after the conclusion of the entire Inquiry, and as I move from Module 1 onto Modules 2 and 3, I shall be running Rule 13 warnings, which only require me to be satisfied that a person may be subject to criticism, in parallel, thereby requiring submissions well before the end of the Inquiry. To that end, I will decide on the correct approach to this rule at a very early stage, leaving anyone who wishes to challenge my conclusion to do so without in any way interrupting my overall timetable. To that end, I'd invite submissions on this topic by 12.00 midday on Wednesday, 21 March.

    The final topic I wish to bring up at this stage is this: I am aware that the Inquiry is being publicly requested to publish the Motorman files beyond the redacted version published by the Information Commissioner. If Mr Sherborne, on behalf of the core participants who complained about the conduct of the press, wishes to argue that such a step is appropriate, given the terms of reference and the fact that this Inquiry is not concerned with individual behaviour -- that is to say, who did what to whom -- and has eschewed such investigation as a matter of fairness, but is rather concerned with custom, practices and ethics, he is at liberty to do so.

    Thank you. Yes, Ms Patry Hoskins?

  • Good morning, sir. The first witness this morning is Assistant Commissioner Cressida Dick.