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

  • As everyone knows and no doubt still remembers, this Inquiry was set up in July this year following an extraordinary series of revelations and events, culminating in the demise of an iconic print title and high profile resignations at the top of the Met police.

    The immediate trigger of the setting up of this Inquiry, the tipping point, was the revelation that Milly Dowler's voicemail was accessed and voicemails deleted, causing family and friends to cling to the hope that she might still be alive.

    Although the individual or individuals who deleted Milly's voicemail messages back in 2002 might not have realised at the time what the consequences might be in terms of raising false hopes, public opinion was rightly sickened by the callousness and cynicism of the perpetrators.

    Within two days of these revelations, the Prime Minister announced to Parliament that an Inquiry would be set up. Seven days later came the announcement of your appointment, and here we are today, embarking on a key stage in the serious and important business of discharging what, on any view, are wide-ranging and challenging terms of reference.

    This Inquiry is unprecedentedly demanding in a number of obvious and significant respects. First, the breadth of the terms of reference: an Inquiry into the culture, practices and ethics of the press. I'll attempt to analyse those concepts in a few minutes' time, but it is obvious that these parameters could scarcely be broader or more open-textured.

    You are required to consider and, if necessary, address a broad spectrum of behaviours and practices, embracing no doubt the good at one end of the spectrum to the frankly criminal at the other end, with unethical practices somewhere in between.

    Phone hacking is safely located at the spectrum end of worst practice, since it is illegal and can never be justified in terms of the criminal law by a claim that the public interest is being served. To be clear, phone hacking is almost inevitably a gross breach of ethical standards as well, and as it happens, we are not aware of a single example of the recent phone hacking about which complaint has been made that can even start to be justified on public interest grounds.

    However, it should be made absolutely clear that the evidence before this Inquiry will not be limited to the issue of phone hacking. There are many other examples of unethical and/or illegal practices which we will investigate.

    Secondly, the scale of public expectations. It should not be forgotten that the Inquiry is established under statutory powers that exercises public functions and is paid for by the taxpayer. The public is therefore entitled to expect a return on its investment. These expectations are all entirely reasonable and we will endeavour to meet them all.

    However, we are working within extremely tight timescales and the subject matter is truly vast. We will cover the ground as thoroughly as we can, but this is not a situation where we can honestly say that no stone will be left unturned, since if we were to adopt that approach, we would still be here in three years' time.

    Thirdly -- and I'm now returning to the terms of reference -- the cart has been placed very much before the horse. By that, I mean that in an ideal world, which is certainly not the planet we inhabit, part two of the Inquiry should really be taking place before part one. The typical sequencing of public enquiries is that the detailed forensic examination of the underlying evidence takes place before consideration is given to the bigger picture and the search for themes, patterns, broken systems and cultures, but the existence of the ongoing police investigation and the possibility of criminal prosecutions means that a detailed forensic examination cannot take place on a concurrent basis without bearing in mind the public interest in the proper conduct of the police's work.

    There are two points here that I would wish to emphasise, first so that the public fully understands the practicalities in the light of the legal position. This Inquiry cannot compel witnesses to answer questions which might incriminate themselves. It is public knowledge that the police have arrested at least 13 individuals who are therefore suspects in their investigation, and it is possible that they will arrest more.

    The law affords these individuals considerable protections in line with their constitutional rights. To repeat, individuals cannot be compelled to answer questions within the scope of the privilege against self-incrimination and adverse inferences cannot be drawn if the privilege is invoked. Those reporting on this Inquiry are asked to continue to bear these principles in mind if any witness seeks to claim the protection of this privilege.

    The second point which I'd like to emphasise is that this cart before the horse issue does not mean that the Inquiry will refrain from entering areas which are also the subject matter of the police investigation. When I come to analyse the terms of reference, I will explain that such a self-denying ordinance would not be the right approach.

    In general terms, what we need to do in instances where our Inquiry does overlap with the police investigation is to ensure that we adduce an adequate body of evidence, some of it quite general, to enable you to provide a sufficient narrative of relevant culture, practices and ethics.

    "Sufficient narrative" is likely to be a recurring theme as this Inquiry progresses. In one sense, the term may be question-begging, but it is useful nonetheless. Furthermore, there are many aspects of culture, practices and ethics which fall well outside the police investigation and where the Inquiry's focus can be as detailed or as general as it chooses.

    I'm still explaining why this Inquiry is unprecedently demanding and I'm coming on to my fourth point, and it's a fairly obvious one. We are investigating the press root and branch, and we will therefore be investigating an extraordinarily powerful and articulate range of institutions which have considerable control over the way in which these proceedings are reported, commented on and analysed.

    This power of the press may be one reason why politicians, at least arguably, have not been overly keen to take steps to call it into question, through fear that by doing so the press would withdraw support for those politicians or subject them to close personal scrutiny. If that analysis is right -- and I was careful to say "may" -- it might also be said that this Inquiry should have the self-same concerns, and conversely, the public may fear that this Inquiry might pull its punches for the self-same reasons.

    I am, however, able to nip any such concerns in the bud for these reasons: in July, the setting up of this Inquiry enjoyed cross party support as well as the support of the devolved administrations. I should make it clear that the territorial scope of this Inquiry is not limited to England and Wales. Under section 3 of the Constitutional Reform Act 2005, government must respect the independence of the judiciary. Not merely is the judiciary independent of government; it is free from the sort of pressures which are capable of being applied by the press on government and politicians. The same applies to the independent bar. The free press will therefore report the proceedings of this Inquiry as they see fit, subject to pre-existing legal constraints, and the Inquiry will continue to discharge its public functions regardless of any crossfire.

    But there are two further issues which may cast a shadow over the business of this Inquiry. First, the Inquiry's concern that journalists may be fearful of speaking out against their employers for fear of their jobs and careers. The Inquiry will no doubt receive evidence of good press culture, practices and ethics, and certainly should not assume this evidence is unreliable, but at the same time the Inquiry needs to hear all possible sides of the story. Those who have witnessed wrongdoing are encouraged to summon the moral courage to speak out. For its part, the Inquiry is willing to consider granting protective measures for whistleblowers with justified concerns.

    Secondly, the press, both within this Inquiry room and outside it, possess highly articulate voices in favour of its interests. There's nothing wrong in that, save that the Inquiry must be vigilant to ensure that the loud voice of the press does not drown out the voices of other interested parties.

    Thus far I've set out the challenges and the problems but I should not be interpreted as suggesting that they are insurmountable. I should say something about the role of counsel to the Inquiry so that it is made explicit. We are not prosecuting counsel or tasked with the duty of arguing any particular case or point of view. We are entirely neutral. Insofar as we may have opinions about a particular topic, we're going to keep these unexpressed.

    The possibility that on rare occasions we might fail to keep to these very high standards cannot be overlooked, but to the extent that an errant opinion is ever expressed, that will be our opinion and not yours. No inferences can be drawn as to what you may be thinking.

    We are here to ensure that all sides of the argument are represented and that the evidence advanced to the Inquiry in due course is presented in a fair and balanced manner. This is not to say that witnesses will not be thoroughly probed as appropriate. They will be. Additionally, we will take up lines of questioning suggested by the core participants and explore avenues suggested to us by your assessors, our own Internet and other researchers or whoever.

    In short, we will call and probe the evidence in seeking out the truth. We're looking to establish both a sufficient and balanced narrative of the culture, practices and ethics of the press as a springboard for helping to devise practical and workable solutions which are proportionate to any problem that has been identified and which are likely to enjoy the confidence of the public.

    These solutions will not necessarily have been the solutions which the press themselves would have devised had they been asked to devise them, but they will have to be workable in the real world and will need to reflect the technical realities both today and in the immediate future, most particularly the challenges posed by the Internet.

    I've said that I will analyse the terms of reference. You are required to inquire into the culture, practices and ethics of the press. 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.

    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.

    For the purposes of this Inquiry, it may neither be possible nor necessary to undertake an examination of these more subtle and complex forces. Let me make the point in this way: if in relation to a particular press institution, you were to reach the provisional conclusion that a practice or a range of practices were widespread, thematic or even endemic, it might not be too difficult to draw the inference that this practice or these practices stemmed from a culture which promoted or permitted their occurrence. Yet it might not matter whether the culture actively promoted the practice on the one hand or merely failed to prevent the practice occurring on the other. On either version, we have a cultural problem. We have systems which have failed and we have an organisational ethos which has contributed to the existence of illegal or and/or unethical practices.

    If one sees evidence of institutional attempts to cover up past misdemeanours, it may be possible to draw the inference from such evidence that these past misdemeanours were systemic and the cover-up itself may be a different manifestation of the same cultural problem.

    On the other hand, as you yourself have pointed out, it is obvious that specific illegal or clearly unethical conduct could indeed exemplify culture, practices or ethics either in a particular newsroom or more widely and it is an extremely important part of the picture. It is not, however, the only evidence that may be relevant to the background. Increased pressure on news room with reducing staff and tight financial constraints, the impact of 24/7 reporting and the immediate availability of news on the Internet, the use of casual or freelance staff and the pressure, whether expressly thrust upon them or impliedly felt by them, to name but a few issues that have been mentioned, may all constitute important elements of the wider picture.

    Thus far I am conscious that my analysis is in danger of sounding somewhat abstract. It was deliberately so because in setting out the ground rules, I did not wish to deal with any particular factual situations through fear of appearing to pre-judge the issue.

    In referring to the press as I have done, there is a danger of appearing to treat a series of separate organisations as if they were a single monolithic intuition. There may well be different cultures in different newspapers groups or in different sections of the press. Even if the Inquiry were to conclude that a culture existed in a particular newspaper, that would not mean that everyone working within that newspaper at the time was inevitably tarnished by it. The dangers of stereotyping are obvious and will be avoided.

    Although the Inquiry will be testing the proposition that there may be cultural differences between tabloid, middle market and broadsheet newspapers, it will not be doing so in the light of any pre-conceived judgments about their respective systems. We start from a clean slate.

    Issues may also be very different in relation to the regional titles. There, journalists feel that they are being tarred with the same brush as the national press, so confidence in them is being affected. Their focus is very much on their local communities whom they have to face day to day and who would react very adversely, as they sometimes do when the national press arrives, to breaches of ethical standards.

    I'm not going to attempt any further definition of terms and I'm certainly not going to insult either you or anyone else by explaining what the word "ethics" means, save to this limited extent: conduct may be unethical because it is illegal. Very often, it is illegal because it is unethical. Conduct may also be unethical not because it is illegal but about because it violates an important human right or because it violates the code of practice designed to regulate behaviour. Finally, and more controversially, conduct may be unethical because most right-thinking people would hold that it was wrong, even if it was neither illegal or in violation of a relevant human right or current code of practice. This may well be a somewhat subjective area but if there is a sufficient moral consensus in support of change, the right course may well be to consider amendments to the relevant code of practice.

    In order properly to investigate culture, practices and ethics, it may not be necessary to look into the fine detail, because the endeavour is to seek out systems and patterns of behaviour. In relation to phone hacking, delving into the detail may, as we've seen, clash with the police investigation. The approach, as I have said before, is likely to be macroscopic rather than microscopic. However, what level of magnification we choose to apply in any given instance will depend on our instinct, judgment and overall sense of the direction the Inquiry needs to take.

    For reasons of convenience, you have decided to divide part one of the Inquiry into a number of modules. Module one concerns itself with the relationship between the press and the public, module two with the relationship between the pleasant and the police, module three with the relationship between the press and politicians, and in module four, we will be addressing the broader policy questions of what changes should be made to the regulatory system in order to address the findings of modules one to three.

    No one is suggesting that these modules form self-contained packages. Clearly they do not, and we are dealing with a number of concentric circles. One constant theme, though, may be this: the alleged subterranean influences operated by the press on the democratic process but without full democratic accountability.

    In practical terms, the overlap between the modules may mean that exceptionally, witnesses called in module one may have to return for module three. On the other hand, a number of module three witnesses will also be relevant to module one. The principal focus of these opening submissions will be module one, but I will sketch out the likely scope and the subject matter of modules two and three before I conclude.

    As you know, many of the issues likely to inhabit part one of this Inquiry were aired during the course of the three seminars which took place in early October. I will seek to pick up on some of the key themes which emerged as I proceed in my analysis of the issues. One point which may have struck up, though, is that we were treated to two competing narratives.

    According to the first of these -- and I advance them in no particular order -- the press is, generally speaking, a force for great public good. It educates, it entertains, it holds the powerful, including government, to account. Although the press may be working under considerable commercial pressure, the importance of this should not be overstated. These pressures have always existed in one form or another. Most journalists are decent people and the far greater pressure is to produce the best possible story to the highest personal and professional standards.

    The public on this narrative have a real interest in the affairs of celebrity, particularly where there is an apparent clash between an affected public persona and private transgression. "Hypocrisy" is the noun which is often deployed in this context and the role of the press is to hunt it down and to expose it. Thus, on this analysis, private transgression becomes a matter for legitimate public comment.

    The exponents of this narrative would say that the press is already hidebound by an oppressive series of legal constraints which have a chilling affect on legitimate activity. These legal constraints range from the existing panoply of law, through Draconian libel laws, to the manufacture of a burgeoning and oppressive privacy law by High Court judges who are not democratically accountable and who apply their own highly subjective and relativistic standards. One High Court judge receives particular opprobrium.

    Further, the press complain that the system of conditional fee agreements exploited by unscrupulous lawyers inures to their disadvantage because the cost of litigation is so punishingly high that often they have no choice but to settle even defensible cases.

    Finally on this narrative, the press may well accept that activities such as phone hacking went beyond one rogue reporter at the News of the World, although they would be keen to exclude their own title from these activities. Whatever the position here, the Augean stables have already been cleaned. This happened some time ago now, and there is no further dung to be found.

    That's one narrative. The contrary narrative works along these lines: the press in general, and the tabloid press in particular, ruthlessly exploit unscrupulous methods in pursuit of at story which will boost the circulation figures of their particular title. Very often, the story is preordained by the narrative the journalist instinctively knows the editor will ish to put out and the facts are therefore tailored to meet that narrative. By the same token, the editor has an instinctive understanding of what his or her proprietor might want, even if there is no direct interference from above.

    The story on this narrative will often strike a chord with the prejudices of the reader because the whole objective, after all, is to increase circulation and revenues in an increasingly competitive and unprofitable commercial environment.

    Those advancing this version of press culture and ethics would say that journalists will not shrink from deploying underhand methods, necessarily illegal methods, provided they believe that they can get away with it. The power of the press and its influence over people's lives is such that it believes itself to be almost above the law.

    Moreover, in deciding whether or not the public interest might justify the prima facie invasion of personal privacy, editors are entirely parti pris to the exercise and are guilty of the self-same subjective and relativistic approach which they condemn in High Court judges.

    Put simply, the public interest is very often deployed as some sort of trump card. If it is too loosely defined, it ends up with the press delving into the affairs of those who are celebrities and those who are not in a way which unethically penetrates a domain which ought to remain private. The press say that they are holding hypocritical people to account, but those doing the holding are themselves unaccountable and hypocritical.

    The proponents of this narrative would also point to the recent revelations of surveillance activities carried out by a private investigator on the instructions of News International. These revisions would suggest that the stables are not necessarily clean of dung.

    Now, in putting forward these competing narratives, I'm not necessarily doing justice to those who expound either of them. To that extent it matters little, because we'll be hearing from the relevant people once the Inquiry begins to receive evidence and they can put the case in their own way.

    My point at this stage is to set out the parameters of the debate and to recognise that the exponents of the good press position and the bad press position would appear to be quite a long way apart.

    At the conclusion of this Inquiry, you may wish to consider which of these narratives is true. Of course, it's possible that you may decide that neither is true because the truth lies somewhere in between. Life is sometimes like that.

    More interestingly -- and this point has been made by some insightful commentators upon your seminars -- you may decide that both narratives are true, in the sense that everything depends on one's perspective or everything depends on which side of a complex, three-dimensional polygon one happens to be viewing, describing on any specific occasion. Nor, of course, are we talking about scientific truth. We're talking about something which is more elusive, namely what is or may be a matter of opinion.

    I'm going to talk about bad practices, some of which are known in the trade as "the dark arts", but it's right that I should start with the good. In the words of one of the contributors to your seminars, most of the content of the press on most days is unobjectionable and some of it is of the highest quality. It is not for this Inquiry to pronounce from on high on anyone's taste on reading matter or entertainment. I recognise that the media cater to a whole range of different world views, that they are perfectly entitled to be opinionated, irreverent, sceptical, credulous, facetious, trivial, obsessive, and to encourage others to think the same, and to express themselves in the style appropriate to their subject matter.

    But the point I'm making goes still further. One matter which came out very strongly in your seminars was that many journalists who write pieces in the more popular sections of the press are able to encapsulate often complex ideas in short, pithy, entertaining and punchy stories which retain the interests of the reader. The ability to do this takes as much skill as the ability to write a good leader in a broadsheet. Individual newspapers must cater for the tastes and interests of their core readership. Ultimately, as some judges in the highest courts have expressly recognised, the press have an obligation to entertain and they need to sell their product in order to continue to do so.

    I have mentioned a range of world views. I understand that members of the scientific community may be providing the Inquiry with evidence along the lines that much real harm is done by certain sections of the press who, it is said, do not always apply the scientific method to their reports or commentaries upon matters of topical scientific interest. It could be said that reporting which is not evidence-based is inaccurate within the meaning of the editors' code.

    This issue and issues like it are not outside your terms of reference, and if relevant evidence is forthcoming, it will be considered. How far this evidence will take you and what, if anything, the Inquiry might do about it may be another matter.

    There is a higher constitutional point in play, namely the importance of a free press in a mature democracy. We simply cannot pay lip service to this principle, even if a free press is second nature to the public life of the United Kingdom. A free press developed incrementally in this country over a considerable period of time, with landmark events en route to this destination, such as the litigation in the 1760s involving John Wilkes and the North Briton. But even in some European countries today the press is not free, and elsewhere there are shining examples of the good and egregious examples of the bad.

    The importance of a free press is almost self-evident. The press holds the powerful to account and is therefore an important curb on potential abuse of executive and corporate power. At its best, the press espouses unpopular causes and gets to the bottom of scandals which would otherwise be left uninvestigated. It is essential in a functioning democracy that the press be permitted to discharge these vital functions and to that extent, it is inevitable that not everybody will be happy with what they do all of the time.

    It is easy to give some concrete examples of the good and the cutting edge, but I'll do so nonetheless. The phone hacking story was the result of assiduous and tenacious reporting by The Guardian, at one stage in the face of a critical report by the PCC.

    The thalidomide scandal was brought to the forefront of public concern by the similarly tenacious work of the Sunday Times, who purchased court documents for a considerable sum when the paper knew or ought to have known that they could only be used for the purposes of litigation between the then plaintiffs and the drug company.

    The MPs' expenses scandal was exposed by the Daily Telegraph, which, as is well known, paid for a computer disk or similar electronic device in circumstances where it might be said that the underlying data was stolen.

    I choose my words carefully, since I'm aware that the Daily Telegraph has provided the Inquiry with a witness statement which deals with the legality of what they did, and one understands the issue about whether intellectual property can, in principle, be stolen at all.

    I should add that even if one were to conclude, for the purposes of argument, that the Daily Telegraph was handling stolen goods -- and I'm not submitting at this stage that this is a conclusion you should reach -- public interest arguments would always enter into the equation here, since the CPS would not prosecute a particular case if they assessed that it was not in the public interest to do so.

    However, in determining relevant standards, the regulator as opposed to the criminal court will doubtless have regard to the circumstances in which the information in issue was obtained but will not necessarily treat these as conclusive. That said, for the purposes of any coherent regulatory system, the starting point must be this: that news gathering methods which amount to criminal conduct could not begin to be justified without establish be an overwhelming public interest, and even that may not be sufficient.

    Another extremely cogent example of good journalistic practice has been provided by the editor of Sunday Times in an article he wrote this year, "Why investigative journalism is a force for good".

    Mr Witherow reminds us that in 1984, a Sunday Times journalist, Mr Swain, used old-fashioned blagging techniques to connect Gaddafi's terrorist paymaster with Mr Abbasi, another Libyan-backed terrorist operating out of Doncaster. The journalist blagged that information from a British Telecommunications operator, having received details of a telephone number. He then visited Mr Abbasi, who eventually confirmed that the National Union of Mine Workers was seeking financial support from Gaddafi.

    I summarise the story, and for reasons of time omit some necessary detail, but what is interesting here is that if Mr Swain's underhand measures might prima facie have constituted an offence under the Data Protection Act 1984 -- and that would depend on a number of factors, not least on whether that Act was enforceable at the relevant time -- he would surely have had a cast iron public interest defence. If you read Mr Witherow's article in full, it is clear that the journalist was not acting on a wing or a prayer, but had very good ground to suspect that the Doncaster phone number was being used by a terrorist.

    These are only four examples and there are many more. Nor are these example confined to the broadsheet press. The Inquiry has received a large volume of evidence covering the good work of other sections of the press in espousing good causes, rectifying wrongs and in investigating abuses of power.

    It is also true that in carrying out this essential work, the press is constrained by the law, in particular the civil law of defamation, privacy and the confines of the Reynolds fair comment in the public interest defence. Whether privacy in particular is an effective safeguard is an issue we will need to address.

    Much investigative journalism relies on covert methods, if not a measure of deception. Very often, the end product can be justified in the public interest. Speaking more generally, what can be justified in the public interest and how can it be justified lies at the very epicentre of this Inquiry. I will therefore need to examine this issue with more care at a later stage today, but in the meantime, before turning to the issue of bad journalism and the dark arts, I would like to cite a paragraph or two from the Sunday Times article I have already mentioned:

    "The expose of how Scargill was seeking financial support from Gaddafi caused an uproar and was a public relations disaster from which the Marxist leader of the NUM never recovered. No two investigations are ever the same, but Swain's story bore certain hallmarks. To get to the truth, he had to lie and deceive. He had to access confidential information by blagging: by pretending to be someone else and extracting the details from the hapless victim. If he had not done so, the story might never have appeared and the public would have been none the wiser. In other words, the end justified the means. That is the fine line that every editor has to walk when judging what methods to use to gather information. The absolute test must be that the story is in the public interests -- that people have the right to know because they are being deceived. It is a subjective test, and in the end, the public and the courts decide whether the paper has made the right call. The journalists' code ascribes this public interest as exposing 'a serious misdemeanour' and preventing the public from being misled by some statement or action of an individual or organisation. The law on data protection also allows journalists to access private information if it is in the public interest and this is a key plank in any defence on significant stories. At the Sunday Times, the role of investigative journalism is to hold officialdom to account at whatever risk. Yes, we bend the rules, engage in subterfuge, impersonate people and show the 'rat cunning' that Nick Tomalin, a great Sunday Times reporter who died for his trade, said was essential in every successful journalist. Without these techniques, the powerful would be protected. We would not tolerate fishing expeditions in the hope of finding out information."

    Then Mr Witherow proceeds to discuss the News of the World phone hacking issue.

    The concept of a fishing expedition is no doubt a useful one and can be expanded on. Using subterfuge simply on the off chance of discovering some wrongdoing is not, borrowing directly from phraseology used by the Press Complaints Commission, a sufficient justification for the use of these methods. There should be reasonable grounds for the Inquiry, including an evidence base for those grounds. The time for assessing whether these reasonable grounds exist is before the methods are used, not retrospectively.

    In borrowing material from the Sunday Times, I should not be interpreted as necessarily agreeing with Mr Witherow. All I do say is that you may think he has encapsulated the issue rather well.

    We'll be hearing a lot more about good journalistic practices when the press witnesses come to give their evidence, but I'm also duty-bound to tell you something about bad journalistic practices, about illegal and/or unethical conduct, and at this point in my opening, I propose to do so.

    The distinction has already been drawn between means and ends. Ultimately the Inquiry is likely to be most interested in unlawful and/or unethical news gathering methods, although we will not lose sight of evidence to the effect that the article itself may be a gross breach of privacy or an egregious distortion of the truth, even if wholly ethical means were used to obtain the underlying material.

    At this stage, therefore, I'll be concentrating on improper news-gathering methods. Here we are talking about a range of techniques and methodologies. Violations of privacy in some shape or form are constant themes here and subterfuge a common theme.

    We will be considering the following categories of press misbehaviour, always accepting that in some of the examples I will give, it may be argued by some that the behaviour in question is in fact justified in the public interest.

    First we will be hearing evidence about a range of electronic surveillance or intrusion, the interception of communications, covert listening device, cinecameras hidden in wardrobes, bugged telephones in private apartments, cameras hidden behind two-way mirrors and the more mundane example of the use of telephoto lenses. Some of these will be covered in the oral evidence you will hear, others are in the public domain. Yet others are summarised in the evidence Mr Matthew Parris has given to the Inquiry. He reminds us that hacking into voicemails is just one example of illegal and/or unethical intrusion; not electronic surveillance or intrusion as such, but using deceptive techniques to gain access to an electronic database.

    That said, one must not lose site of the fact that in some of the examples given the practice is undoubtedly illegal. In others, the practice is or may be unethical.

    Secondly, we know of examples in the public domain of stealing information to gain access to personal data. These examples range from rifling through dustbins -- the patois for this is "binnology" -- to more prosaic cases of stealing personal diaries or other forms of hard data. I have already touched on the far less controversial example of the Daily Telegraph's MPs' expenses story.

    Then we have evidence of old-fashioned, less technologically-based modes of intrusion. Here I have in mind reporters and photographers hidden in bushes, paparazzi overstepping the bounds of acceptable behaviour and some of the examples given in Peter Burden's book "Fake Sheiks and Royal Trappings", in particular the Bob and Sue Firth story at pages 105 to 118.

    The News of the World reporter at the centre of that story is the same News of the World reporter who was at the centre of Mr Mosley's privacy action against News International, tried by Mr Justice Eady in 2008. He also happens to be the subject but not the immediate recipient of the famous "for Neville" email referred to, for example, at paragraphs 412 to 416 of the report of the Culture, Media and Sport Select Committee, dated 9 February 2009.

    The recipient of the email was Mr Glenn Mulcaire. Neville Thurlbeck's position, according to hearsay evidence set out in the Select Committee's report, is that he's never seen that email nor had any knowledge of it.

    Fourthly and more controversially, the Inquiry has evidence of agent provocateur techniques and some of these are fully in the public domain. "Confessions of a Fake Sheik" by Mr Mazher Mahmood, now of the Sunday Times, has been read by the Inquiry teams and we've also received a witness statement from him pursuant to a section 21 notice.

    It should be recorded that Mr Mahmood prides himself in these methods and that his evidence was recently instrumental in bringing the Pakistani spot-fixing cricketers to justice. However, some would argue that his methods are questionable and that there are instances where the ends do not justify the means. We will need to explore this with Mr Mahmood when he gives his evidence.

    Next we have situations where payments are made for stories, whether to sources, witnesses or private detectives. Module one is not directly concerned with possible police corruption issues.

    I should not be interpreted as saying that such payments would always or even usually be objectionable. My point at this stage is to identify the possible issues. Human nature being as it is, many sources will not provide information free of charge, although the other side of the coin, human nature being as it is, is that many sources, including those working within government in the wider sense of the term, or the police, are more than happy to do so.

    But as regards those for whom payment is a necessary incentive, issues arise in general terms as to whether this form of commercial pact enhances the risk that the information provided by the source may be untrue or malicious, or inherently more likely to amount to a breach of privacy.

    The press may say that this situation is really no different from that which obtains in relation to police informants. The fact that police sources are often paid for valuable information is a fact of life and it does not logically lead to a lower quality of intelligence. Furthermore, just as an experienced police officer will instinctively know whether a source can be trusted, the same principle applies to journalists. A police informant's tip will need to be corroborated by other convergent evidence, as indeed will that provided by a journalist source. These are all questions which the Inquiry may need to consider.

    Payments to private investigators or detectives are capable of falling into a different category. Here I would wish to define my terms. The press, in common with many institutions, including solicitors, use search agencies to locate pieces of information which are in the public domain. This practice raises no privacy issues.

    Private investigators or detectives use different methods in order to seek out information and data which are not in the public domain. To be clear, a private investigator may well deploy perfectly proper standards and as the Inquiry will hear in due course, some are responsibly regulated. However, it would not be unfair to comment that the very nature of the job entails a risk that the personal privacy of the target may not be respected, or more seriously, that breaches of the law may be perpetrated in order to secure the information sought.

    Here I am referring primarily to breaches of the Data Protection Act and what is commonly known as blagging, the impersonation of someone else in order to extract personal data from an official source or an entity such as a mobile phone company.

    A specific example of this is, of course, Operation Motorman and the work of the Information Commissioner in relation to the activities of a particular private investigator, Steve Whittamore. I will cover this topic in a moment.

    Aside from the question as to whether the journalists who tasked Mr Whittamore may have been implicated in his criminal activities -- and this is a big question -- the Inquiry will be particularly interested in systems in place in the individual print titles to handle and scrutinise the payment of invoices submitted by a private investigator.

    The broader question of the use of sources raises sensitive and emotive issues. Under the Contempt of Court Act 1981 and article 10 of the European Convention, journalists are entitled to protect their sources. The public interest in favour of this principle is both sound and obvious and relatively uncontroversial.

    What is of keen interest to this Inquiry is how sources are paid, how their invoices are scrutinised internally and, most importantly, the extent to which this modus operandi of a source may be known or deduced or ignored, by, for example, the editor, whose ultimate responsibility it is to check the accuracy of a particular story and to check that the means by which the information was obtained was lawful.

    I am still on my overview of improper or arguably improper news-gathering methods and I'm coming, I think, to my fifth category, phone hacking. One might include the related activities of computer and email hacking, which are also illegal, albeit under different statutory provisions. This Inquiry has seen much less evidence of computer and email hacking. These require a greater degree of technological know-how and may well be harder to detect. One would not like to speculate without evidence how much computer and email hacking has been going on.

    I've already made the point that phone hacking is just one form of subterfuge. Morally, it may not be very different in quality from many others. Further, telephonic interception is not some new phenomenon. In the days when the mobile phone network operated on an analogue system, it was possible to purchase radio devices for less than £100 which enabled the operator to listen in on all mobile phone traffic within a particular radius. Presumably, this was precisely how the Prince of Wales' phone was intercepted in 1989 and private communications were recorded.

    This practice was illegal under the Interception of Communications Act 1985 without a licence from the Secretary of State. In the sort of context I have mentioned, it could not be justified in the public interest. Since the late 1990s, all I would wish to say at this stage is that it has become more difficult and certainly more expensive to intercept digital communications.

    I will summarise the present state of the evidence in relation to phone hacking shortly.

    My last category of improper or arguably improper news-gathering methods is a catch-all one, and here is the concern is as much the end product published as methods deployed. Next week, the Inquiry will be receiving a considerable body of evidence from a range of individuals who say that they are the victims of unfair, oppressive and unethical press practices.

    Included within this evidence are victims of phone hacking, but at this juncture I am describing my catch-all category. The Inquiry will be hearing from individuals from a number of walks of life, some of whom are celebrities in the sense in which that term is ordinarily understood, others of whom clearly are not. Their evidence is disparate, which may be one of its virtues. The common themes are complaints of systematic breaches of privacy, of conduct amounting to harassment and of unfair, sensationalist and inaccurate reporting. The Inquiry will need to consider whether these complaints are substantiated and whether they constitute evidence of a bigger picture.

    I will be returning to the bigger picture towards the end of my submissions, because this is what part one of this Inquiry is all about. I am not, of course, ignoring the fact that the Inquiry will need to have a critical mass of reliable evidence before the contours of that bigger picture may be discerned.

    At this stage, I think it's worth adverting to one aspect of the bigger picture which might already be obvious, and it is the following: in relation to many but not all of the allegedly improper news-gathering methods I have been examining, I have been examining the subject of press interest in the private lives of individuals. Some of these individuals may be public figures -- and I appreciate that reasonable people may differ as to what exactly is meant by the term "public figure" -- but others most certainly are not. Whether there is a distinction between those who court celebrity and those who would assiduously wish to avoid it is something the Inquiry may wish to consider under the overall rubric of privacy.

    But the point I am making here is that the further away one moves from the heartland of investigative journalism, properly so-called -- this is journalism in the public interest -- to the hinterland of a form of journalism whose end product, some might say, is really no more than a menage of gossip, tittle-tattle, entertaining anecdote and prurient Inquiry, the more difficult it may be to justify intrusive journalistic methods and intrusive publications. Like it or not, one cannot get away from the subject matter.

    The criminal trial in the phone hacking scandal was all about hacking into the voicemails of members of the royal household. This was not investigative journalism in any recognisable sense of that term. It was a fishing expedition where the precise species of fish could not be ascertained in advance, but where the overall objective was clear: to uncover new stuff about the royals.

    The aspiration, of course, was that the fish, once caught, would be dished up as spicey morsels, as piquant insights into the private lives of the royal family, and the same principle applies to the other individuals who featured on the original Goodman-Mulcaire indictment.

    Aside from the specific case of phone hacking, which, to be fair, no member of the press has sought to go justify, the Inquiry will need to consider the range of public interest justifications which are advanced for the type of journalism I am describing. In any event, it will need to consider whether, turning the tables around, as it were, there is really a public imperative in doing more to address this particular problem.

    It might be argued in certain quarters that one of the by-products of a free and uncensored press is collateral damage. The press may say there is always a public interest in exposing hypocrisy and that there is a public interest in freedom of expression itself. Part of the duty of the press is to entertain; otherwise its readership will desert. Even if, as one editor said at your seminars, the Hampstead liberal with his gilded lifestyle may not be interested in this sort of fare, that really is none of his business, and by extension, it is none of the Inquiry's business.

    I should not be interpreted as expressing any judgment on these intractable questions, but I note that we keep returning to the main theme of this module of your Inquiry: what does the public interest mean and who judges it?

    I turn now to the issue of the Data Protection Act and the work of the then Information Commissioner, Mr Richard Thomas.

    Data protection legislation was first enacted in 1984 but further, more detailed provisions came into force in 2000, following the enactment of the Data Protection Act 1998. This was a complex piece of legislation designed to bring domestic law into line with EU directives.

    The target of the Data Protection Act is not the press or journalists. The primary purpose of the act is to ensure that data controllers -- that is to say, those who hold the personal data of others -- take sufficient steps to protect it. Nor is the Act primarily concerned with the criminal law.

    However, under section 55 of the Data Protection Act, it is a criminal offence, subject to a number of listed defences, to obtain or disclose personal data or the information contained in personal data without the consent of the entity lawfully holding that data, namely the data controller. This includes the activity of blagging, the obtaining of personal information by deception.

    Hence, if Mr X were to pretend that he was a person with a legitimate interest in obtaining personal data from a data controller and thereby persuade an employee of the data controller to give up that information, the essential ingredients of the offence would be made out. In the real world, Mr X is usually a private investigator and the data controller concerned could be HMRC, a driving and vehicle licensing agency, a mobile phone company, an organ of the NHS or those responsible for the police national computer.

    Mr X may operate by deception as his preferred technique, but there may also be a corrupt or unscrupulous employee located within one of these organisations prepared to give up information to Mr X for reward or otherwise, self-evidently without the agreement of his principal.

    Mr X is prima facie guilty of an offence because he procures the obtaining of personal data or discloses it, on our facts, to a newspaper without the consent of the data controller. If there is evidence that a journalist has tasked Mr X to obtain confidential information for him, the journalist would also be guilty of an offence, on the basis that he is an accessory at common law or on the footing that he has procured such information through the agency of Mr X, knowing its provenance.

    All this is subject to the defence under section 55 of the Act that -- and I quote:

    "... in the particular circumstances, the obtaining, disclosing or procuring was justified as being in the public interest."

    This sets out an objective test:

    "It is not the individual's belief which is relevant. The court must be satisfied to the appropriate standard that in the particular circumstances the act in question was justified as being in the public interest."

    One of the reasons why I dwelt on the Gaddafi example in 1984 is that here we see evidence of a solid public interest justification. It was good evidence which linked a particular telephone number with terrorist activities. So there it was legitimate for the journalist to blag further information out of BT, and in the result, critical additional pieces of the jigsaw emerged.

    It is important to underscore the point that the journalist was not embarking on a fishing expedition. With the information already at his disposal, he could be reasonably optimistic of finding gold dust. Furthermore, the subject matter of his investigation was serious and self-evidently of public concern.

    The issue of criminal offences under the Data Protection Act is unlikely to excite much public interest, still less, revulsion. The topic is somewhat recherche in nature. The Data Protection Act as a whole is a difficult statute to grasp and the whole issue may be more to the taste of an intellectual prospect lawyer than the ordinary member of the public.

    However, the issue is an immensely important one because all of us entrust our personal data, which includes confidential information, to data controllers, and none of us would wish to these those confidences abused. This topic is only an arid one until it hits home.

    Hence, the work of the Information Commissioner is important and this Inquiry needs to examine what inferences and lessons may be drawn from Operation Motorman.

  • Mr Jay, I think that's probably a convenient moment, before we start on that exercise. The shorthand writer has been working very hard for an hour and a quarter and it's about time she had a break, so I'll rise for just a few minutes.

  • (A short break)

  • Operation Motorman. The story, in a nutshell, is as follows, and here I am summarising a number of sources: the Information Commissioner's two reports, "what price privacy?" and "What price privacy now?", the detailed evidence Mr Thomas has given to the Inquiry and which we will hear reasonably shortly, chapter 7 of Nick Davies' book, "Flat Earth News", the chapter entitled "The Dark Arts", and other online materials.

    Essentially, it is clear that the Information Commissioner's office had long suspected the existence of an organised trade in confidential personal information, its suspicion's being confirmed when, in late November 2002, the ICO attended a search under warrant of the premises of John Boyall, a Surrey-based private detective, which search was conducted by the Devon & Cornwall Police.

    The raid concerned the suspected misuse of data from the police national computer by former and serving police officers. Documents seized during the course of the raid were then linked to vehicle checks carried out within the DVLA by two officials.

    In the words of the Information Commissioner's first published report, corruption was the stark conclusion and two investigations were subsequently launched: The Information Commission's officers' Operation Motorman into data protection offences and a police investigation into possible corruption.

    On 8 March 2003, search warrants obtained by the ICO led the investigation to an address in New Milton, Hampshire, the premises of Steve Whittamore, another private detective, and to two men who worked for him. Documentation seized from Whittamore's premises showed that he worked with a number of associated who were able to supply him with data, most of which was unlawfully obtained from a number of sources, including BT accounts, other telephone companies, DVLA records, credit card statements, bank statements and the police national computer.

    I will deal with the scale of this documentation in a moment.Whittamore was in some sort of partnership or similar relationship with Boyall. Together they appeared to have a network of corrupt officials who, for a consideration, supplied specialist information. Central amongst these was Paul Marshall, a communications officer at Tooting police station, who retrieved information from ex-directory phone numbers and vehicle registration details to criminal records.

    This afternoon was handed to Whittamore and Boyall by an intermediary, a retired policeman called Allen King, and in February 2004, the CPS charged all four men with conspiracy offences. In due course, all four men pleaded guilty. The sentence in each case was a conditional discharge.

    It would be fair to say that the then-Information Commissioner, Mr Thomas, was somewhat frustrated by this outcome. He will deal with this in detail when giving his evidence.

    This Inquiry is not in fact concerned with the conduct or fate of these four individuals. What is of interest to this Inquiry is the possible involvement of the press in procuring and then receiving this confidential information.

    In the words of the Information Commissioner, when dealing with the documentation seized during the course of the March 2003 raid:

    "... it was the wealth of detail which was to prove so valuable to our knowledge of the illegal market in personal information: ledgers, workbooks and invoices detailing who had requested the information, precisely what information they were given, how much they were charged and how much was paid to associates who actually obtained the information."

    It should be noted that the client, the person who had requested the information, was not always a journalist, and this Inquiry is only concerned with the clients who were. When the seized information was analysed, the following picture emerged.

    In the previous three years alone, 305 different journalists had asked Steve Whittamore for a total of 13,343 differently items of information. These 305 journalists worked for a total for 21 newspapers and 11 magazines, although some journalists worked for more than one publication.

    A fuller breakdown of the 305 breakdown appears in tabular form in Mr Thomas' second report. Out of the transactions positively identified, 952 were attributed to the Daily Mail, with 58 different journalists involved. We will hear more about this in evidence. But the Sunday people came next in the list, with 802 transactions and 50 journalists, then the Daily Mirror with 802 transactions and 45 journalists, the Mail on Sunday with 681 transactions and 33 journalists, and the News of the World with 228 transactions and 23 journalists. I do not burden my opening submissions by reading out all of the different newspapers.

    Toward the bottom of the list, we can see the Sunday Times and the Times newspapers, whose transactions feature in single figures. The Guardian, the Independent and the Financial Times are not on the list.

    The 13,343 separate transactions were then analysed by the Information Commissioner's office. It found that 1,998 of them were too vague to allow any definite conclusion. Of the remainder -- and this is information obtained pursuant to an FOI request -- 5,025 were assessed to constitute clear breaches of the Data Protection Act and 6,330 probable breaches of the Act. These assessments were reached having regard to the nature of the information and to the price paid for it.

    The price paid for 3,291 pieces of information was over £164,000. The identities of the journalists involved have not been vouchsafed by the Information Commissioner's office. In answer to a Freedom of Information Act request, their identities were cyphered. However, from the information provided, it is clear that a number of journalists made prolific numbers of illegal or probably illegal requests. The most prolific runs to 679. One journalists commissioned some £26,000 worth of transactions.

    Criminal proceedings were never taken against any of the journalists. The precise reasons for this will need to be examined carefully with Mr Thomas, although one reason he gives is that he could not be completely confident that the public interest defence would not apply.

    In this respect, two matters are worthy of note. First, none of the four conspirators in their criminal proceedings sought to rely on any public interest defence. Presumably they took the view, on advice, that such a defence would not run. As Mr Thomas explains in the context of their cases, it is not surprising that this view was taken, given that this activity was in the nature of a fishing expedition and the public interest would need to be identified before the information was obtained, disclosed or procured, not afterwards.

    Secondly, if Mr Thomas is right about the public interest defence in relation to the private investigators, it is not immediately obvious why an equivalent reasoning process does not apply to the journalists. It was they, after all, who commissioned the individual transactions. In any event, the burden would have been on the journalist to raise the defence and its strength could then have been separately assessed.

    It might be said in relation to the journalists that it could not necessarily be proven according to the criminal standard that they knew that they were obtaining information in breach of the Data Protection Act. Here is what Mr Thomas has to say about that possibility in paragraph 5.3 of his first report:

    "This was not just an isolated business operating occasionally outside the law, but one dedicated to its systematic and lucrative flouting. Nor could its customers escape censure. Some of the information contained, such as PNC checks, ex-directory telephone numbers and details of frequently dialled numbers, cannot normally be obtained by such businesses by lawful means. Others, such as personal addresses, can be obtained lawfully only by the old foot-slogging means, such as personal checks to the full electoral register. Prices charged for some pieces of information raise questions about their provenance. Either the price was too low for information obtained lawfully, as in the case of personal addresses, or it was high enough to indicate criminal activity, as in criminal records checks."

    In due course, I will be inviting Mr Thomas to expand on this particular paragraph.

    Apart from the forensic issues which I had foreshadowed, there are two further issues I should mention at this stage. It may or may not be possible to get to the bottom of these, but they will certainly be explored.

    First, there is evidence from a former employee of the ICO which suggests that the extent of wrongdoing went significantly further than the 13,343 transactions I have mentioned and that Mr Thomas and his deputy took a specific policy decision not to bring proceedings against individual journalists because they were afraid of the power they wielded.

    Secondly, the Daily Mail has given evidence to the Inquiry which certainly suggests that the information its journalists may have procured was entirely innocuous information which did not evidence the commission of any criminal offences.

    The Information Commissioner's two reports, both published in 2006, did not attract a lot of press interest at the time. I will not speculate as to the possible reasons for this.

    Mr Thomas' first witness statement to the Inquiry draws to your attention some interests exchanges he had with the PCC. He asked the PCC to fire a clear warning shot to the press about the risks of breaking the law. In due course, we will hear about this and the PCC's reaction to this request.

    One of Mr Thomas' recommendations was that section 55 of the Data Protection Act should be amended so as to increase the maximum penalty for this offence from a fine to a two-year period of imprisonment for a conviction on indictment. Mr Thomas' evidence to the Inquiry is very illuminating on this issue. To cut a long story short, section 77 of the Criminal Justice and Immigration Act 2008 was initially to contain a provision which reflected Mr Thomas' recommendation. The quid pro quo was a strengthening of the public interest defence, see section 78, introducing a new provision into section 55 of the Data Protection Act, which would have changed the test from being objective to subjective. However, a late intervention by the then Prime Minister led, from Mr Thomas' account, to a classic legislative compromise. These legislations entered the statute book but did not have immediate force of law. A separate statutory instrument would be needed to bring them into effect and none has been laid before Parliament to date.

    Mr Thomas' evidence contains in microcosm a number of the key issues which form the subject matter of part one of this Inquiry. I have in mind the extent of press misconduct in the possible existence of a culture, the press response to the Information Commissioner's response and then the political response to his recommendations. That said, one appreciates that the Whittamore raid took place in March 2003, and some might say that all of this is water under the bridge.

    I come now to the issue of phone hacking, in particular the unlawful access of mobile phone voicemails. My endeavour here is not to undertake a close forensic examination of all the evidence so that every blood vessel and sinew is exposed. I will do that when we reach part two, which certainly will not be starting imminently.

    Instead, I propose to attempt a somewhat less punctilious but perhaps more difficult exercise: to provide you with an overview with an over-arching synthesis which might enable the Inquiry to assess the possible breadth of this illegal activity, if not its depth. If that exercise is successfully conducted, then insights into -- and possible conclusions about -- any relevant culture or cultures might be capable of being drawn.

    My point of departure is inevitably the News of the World and the Goodman-Mulcaire proceedings which culminated in guilty pleas and a sentencing hearing before Mr Justice Gross, as he then was, in January 2007.

    Mr Clive Goodman, as is extremely well-known, was the royal editor of the News of the World, and Mr Glenn Mulcaire was a private investigator who probably had been working for the paper in some shape or form since 1997, first as a research consultant employed by a private company, and then, after 2001, through his own company.

    The first formal contract between Mulcaire's company and the News of the World covers the annual period beginning on 1 September 2001. Under it, he received weekly remuneration at an annualised rate of £92,000 per annum.

    When his business premises were raided by the police, the investigating officers found a contract between the News of the World and an entity called Nine Consultancy Ltd, which was Mulcaire's company at that time, covering the 12-month period beginning on 1 July 2005. Under this contract, Mulcaire undertook to carry out a research and information service, in return for which he would be paid £104,988. The payment of this amount is shown on News of the World's books.

    One obvious question which arises is this: what was the exact nature of the services Mulcaire was contracted to provide? It was accepted at the criminal trial that the £104,000 was paid in exchange for the delivery of legitimate services and that illegitimate activities were covered by separate cash payments, but evidence has come to light which suggests differently.

    The criminal proceedings were limited to an eight-month period, November 2005 to June 2006. Under counts 1 to 15 of the indictment, it was alleged that Goodman and Mulcaire conspired to commit breaches of section 1 of the Regulatory of Investigatory Powers Act 2000, RIPA, by working together to gain access to the voicemail messages of three members of the royal household. The purpose of gaining access to the messages was to obtain confidential information with a view to it being published in the News of the World newspaper.

    In order to make good this indictment, the prosecution had to prove a common purpose or scheme between the two men. It would have been sufficient for the prosecution to have proved that it was only Mulcaire to actually gained access to voicemails pursuant to this scheme, although there was evidence that Goodman made some of the calls into the system.

    Furthermore, for the purposes of a conspiracy allegation, the prosecution did not have to prove that the fruits of this activity ever found their way into the News of the World in the form of stories, though here again there was some evidence that they did.

    Under counts 16 to 20 of the indictment, it was alleged that Mulcaire alone accessed the voicemails of five other individuals in breach of section 1 of RIPA. It was not alleged that he did so pursuant to any arrangement with Goodman. The prosecution did not seek to prove to the criminal standard that Mulcaire was working with others within News International.

    I will need to examine counts 16 to 60 with particular care for obvious reasons, but at this stage I note that the five individuals I mentioned in the context of these counts, although I haven't yet named them, would not have been of interest to the royal editor. This must have been obvious to News International at all material times, by which I mean anyone within the company equipped with a basic familiarity with these facts.

    I will turn to counts 1 to 15 and to Mulcaire's modus operandi. I can simplify it: in order to gain access to voicemail messages remotely -- in other words, from a telephone other than the mobile phone paired with its voicemail -- typically you need to have possession of a unique retrieval number and a pin number. I say "typically", because arrangements differ slightly across the mobile networks. If I gain access to the voicemail of my phone by telephoning in from a landline or wherever, using a unique retrieval number and a pin number, then so can anyone else.

    Finding outlet the pin number was not that straightforward, and here Mulcaire had to use underhand methods. His practice was to telephone the customer services department of a mobile phone provider and to persuade the company to reset the pin to its default setting. In order to do this, he needed to use a company password in order to convince company services that he was acting legitimately.

    It is more than a reasonable inference that Mulcaire had some sort of illicit pathway to two key pieces of information: first, the unique retrieval numbers paired with a particular mobile phone; secondly, the company passwords which would give him credibility when he spoke to customer services. These passwords were often changed for security purposes, so Mulcaire's channels of information must have been ongoing.

    It is not entirely clear how Mulcaire had access to the unique retrieval numbers, or, as it happens, to other confidential mobile phone data. I have mentioned illicit pathways. These include the possibility of both blagging and corruption.

    In relation to counts 1 to 15, Mulcaire used landlines located within his office and another telephone installed in some way in a cash point machine. Goodman made some calls from his home address, and more pertinently for our purposes, from a fixed link telephone installed at the offices of News International in Wapping.

    When Mulcaire's premises were raided, the police found a number of notebooks containing details of the scheme of interception. These notebooks were of particular interest to the Inquiry. In relation to counts 1 to 15, their contents were explained by prosecuting counsel to Mr Justice Gross.

    The information varied from page to page, but very often, one could see the name of the individual member of the royal household targeted, his or her mobile phone number, his or her unique retrieval number, the pin number, which had been set to default, and finally the number of the network service provider.

    The notebook evidence by itself did not prove that the voicemails had been accessed, but in the case of counts 1 to 15, there was other evidence which established that fact, because the police had analysed call data from the various phones I had referred to and had made the link.

    On many but not all of the notebook pages, there is to be seen one extra piece of evidence, namely at the top left-hand corner of the page, a first name. In relation to counts 1 to 15, the prosecution opened the case to Mr Justice Gross on the basis that the first name was Clive, which was Goodman's given name. This provided further evidence of a conspiracy.

    Investigating officers in Operation Weeting carried out further analyses of the Mulcaire notebook. This has proven to be a painstaking and challenging exercise. At this stage, I can give some further information about counts 1 to 15, since not all of these left hand corner names were Clive.

    In relation to one of the members of the royal household who was the target in counts 1 to 15, the corner names were "Clive" or "Private" or someone I'm going to called "A". You have ruled that A should be cyphered in these proceedings, although I have been told his or her identity. The revelation of A's identity is not necessary for part one purposes and might cause prejudice to the police investigation.

    One possible inference to be drawn is that A was working with or for Goodman and that he or she may have instructed Mulcaire to carry out a particular voicemail interception operation. It might be argued that A could have been acting independently of Goodman, but that would not make much sense since we know that Goodman was the royal editor and we also know that targets 1 to 15 were members of the royal household.

    I have mentioned the consultancy agreement between Mulcaire's company and News International. There was also evidence before Mr Justice Gross that Mulcaire received cash payments in the aggregate sum of £12,300 between November 2005 and August 2006. These payments were made by Goodman, although he made corresponding expenses claims on the company. In relation to these claims, the identity of the source, Mulcaire, was protected, since h was described in News International's books as Alexander.

    As prosecuting counsel explained to Mr Justice Gross, the payment records showed that there were payments to Alexander in relation to Fergie, SAS, Will, Harry and Chelsy, Harry, Harry, Wills, Wills. This provides some indication of the sort of information that was being provided.

    We need to branch out into counts 16 to 20. Count 16 concerned Mr Max Clifford, the well-known publicity consultant. His clients are well outside Goodman's bailiwick, the affairs of the royal family.

    Count 17 concerned Mr Skylet Andrew, the well-known management and public relations consultant with a client basis including, most notably, professional footballers.

    Count 18 concerned Mr Gordon Taylor, the chief executive of the Professional Footballers' Association.

    Count 19 concerned Mr Simon Hughes MP, who probably needs no introduction.

    The same applies to the subject matter of count 20, Ms Elle McPherson.

    From my understanding of the criminal proceedings culminating in the hearing before Mr Justice Gross, the prosecution did not seek to deploy Mulcaire's notebook in an attempt to link Mulcaire with any particular employee within News of the World. Strictly speaking, there was absolutely no need to do so before Mr Justice Gross, because only Mulcaire's name was on the indictment in relation to counts 16 to 20 and there was therefore no purpose in bringing in other employees of the company.

    However, it is noteworthy that Mr Justice Gross himself was alive to the practical realities. At page 68H of the transcript of those proceedings, he said:

    "The picture painted by that paragraph [and here he was referring to a paragraph in the Goodman pre-sentence report], certainly read together with Mr Mulcaire's pre-sentence report, although I know that they are separate documents -- but if you look at the picture together, there is a climate in which such activities are or might become commonplace, and that I regard as a feature which I must consider, so I give notice of that."

    Here, Mr Justice Gross was referring to the possibility of giving a deterrent sentence.

    Interestingly, in mitigating his client's case on his behalf, defence counsel for Goodman said this:

    "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."

    Transcript, page 70, letter E.

    In his sentencing remarks, Mr Justice Gross said this:

    "As to counts 16 to 20, you have not dealt with Goodman but with others at News International. You had not been paid anything because no stories had resulted."

    Transcript, page 179, letter H.

    In relation to non-payment, this is what Mr Justice Gross had been told. Whether it was true is debatable. As it was clearly understood by Mr Justice Gross that there were almost certainly other anonymous co-conspirators, if I can put it in those terms, perhaps that is hardly surprising.

    Back in 2006 and 2007, the prosecution did not seek to bring these co-conspirators within the scope of its proceedings. Perhaps they felt that the evidence was insufficient to prove the case to the criminal standard. Perhaps they felt that the overriding imperative was to close this operation down in such a way that there would not be a repeat. Perhaps there are other plausible explanations.

    Addressing the issue neutrally, it should be emphasised that the criminal standard of proof is a high one. Juries are directed that they must not find a defendant guilty unless they are sure of guilt. Nothing less than that will do.

    It remains to be determined how you should approach the standard of proof in relation to any findings you make in your report, but in written submissions we placed before you on 4 October, it was suggested in line with standard practice in this area that insofar as you should apply a standard of proof to determinations of fact under the 2005 Act, the civil standard of the balance of probabilities should govern.

    It is not our purpose under part one to identify the other individuals within News International who were or might have tasked Mulcaire to hack into voicemails. However, it does need to be established that they existed, and we can do that with reference to a range of evidence.

    First, there is evidence which entered the public domain after the criminal trial. For example, according to the report of the Culture, Media and Sports Select Committee published in February 2010, on 4 February 2005, Mulcaire, using the pseudonym Paul Williams, and Greg Miskiw, the then assistant news editor of the News of the World, signed a contract which gave Mulcaire exclusive rights in relation to the information or pictures bearing on the private life of Gordon Taylor in return for the News of the World agreeing to pay Mulcaire at least £7,000.

    This document does not, of course, prove that Mulcaire would need to be accessing voicemails in order to obtain the information in question, still less that Mr Miskiw knew that. We have a note to count 17 that Mr Mulcaire did access Gordon Taylor's voicemail. This guilty plea related to the period February 2005 to June 2006, although in the subsequent civil proceedings, the period alleged was January 2005 to May 2006.

    According to the same Select Committee report, on 29 June 2005, a reporter of the News of the World sent an email to Mr Mulcaire which opened with the words: "This is a transcript for Neville". According to paragraph 412 of the Select Committee's report, there followed a transcription of 35 voicemail messages. In 13 cases, the recipient of the message was GT, Gordon Taylor, and in 17 cases, Joe Armstrong.

    In June 2005, there was only one Neville on News International's staff at the time, namely the chief reporter, Neville Thurlbeck. I have already made it clear that he has denied any knowledge of the email or the associated transcript.

    Our second point is that in the context of counts 16 to 20, the police's analysis of the Mulcaire notebook -- and again, it is an analysis carried out in the context of Operation Weeting -- is that the corner names in Max Clifford's case were either "A" or "Private" or "A private".

    "A" is a cypher and I should make it clear that it is the same "A" who I have mentioned in the context of counts 1 to 15. In Skylet Andrew's case, the corner name was "I". In Gordon Taylor's case, the corner name was "A". In Simon Hughes' case, the corner names were A, B and C. There was also one illegible corner name. In Elle McPherson's case, the corner names were "B" and "Private".

    So we have a range of corner names. I know the names in each case, but obviously do not know anything about the corner name "private" or its significance. We only have the first name in each of the cases but they happen to tie up with the first names of employees of News International.

    Thirdly, we have evidence emerging from the civil proceedings which are due to come to trial in the Chancery Division at the end of January 2012. Mr Sherborne will no doubt be telling you more about those proceedings. The claimants in the civil proceedings are not limited to the targets of counts 16 to 20 on the original Mulcaire indictment. Indeed, some of these individuals have not brought civil claims. We'll be hearing from some of the civil claimants next week.

    The claimants' developed case in the civil proceedings is that the system operated within News of the World was essentially a conspiracy, whereby Mulcaire and employees of that organisation would work together to access voicemails for the purposes of excavating pieces of information which could then form the subject matter of stories in the paper.

    My fourth point is that News International had provided the Inquiry team with a list of the admissions they have made in those civil proceedings where proceedings have been issued. I will deal with those admissions in the following matter: putting to one side the Siena Miller case for one moment, News international have made admissions in about a dozen civil claims along the lines that Glenn Mulcaire had gained access to voicemails. The most prolific is probably Skylet Andrew's case where there were 14 successful attempts and 19 failed attempts. In some of these claims, News International has also admitted that use was made of confidential information obtained by publishing articles.

    We have noted in relation to these admissions that News International has accepted vicarious liability for the acts of Mulcaire, not for the acts of those within their organisation who tasked or commissioned him, but admissions are usually made on a minimalist basis.

    I deal separately with Sienna Miller's claim. This is my fifth point. In her re-amended particulars of claim dated 11 April 2001, Ms Miller alleged a systematic invasion of her privacy by a series of voicemail interceptions in 2005 and 2006, and an equivalent campaign of harassment for over 12 months.

    She also alleged that between July 2005 and July 2006, a number of articles about her were published in the News of the World and that it should be inferred that some or all of the private information contained in these articles were the products of News International's unlawful activities. Finally, she alleged that in September 2008 her email account was hacked into using the same password as her mobile phone password and the private messages were accessed.

    On 12 May 2011, News International's leading counsel, in proceedings before Mr Justice Vos which were transcribed, admitted all the causes of action pleaded in the re-amended particulars of claim. There was subsequently a statement in open court when Sienna Miller's claim was settled.

    The upshot in legal terms is that News International thereby admitted those facts which were both necessary and sufficient to found each individual cause of action set out in the pleadings.

    Paragraph 31 of the re-amended particulars of claim, which alleged by way of an alternative case a common design and/or the counseling and procuring of voicemail hacking by journalists at News International was also admitted.

    If there is a dispute about this, we need look no further than the transcript of the proceedings before Mr Justice Vos on 12 May 2011, page 3, lines 15 to 16, when Mr Silverleaf, Queen's Counsel, accepted all the pleaded points of claim. The significance of this is in the Sienna Miller litigation, News International went further than in their minimalist admissions elsewhere.

    Sixthly, reference should be made to Mr Jude Law's claims against the Sun, which is not, from my understanding, one of the claims due to be heard next January. Mr Law alleges that his phone was hacked by the Sun, which is part of the News International portfolio of print titles. Part of the evidential matrix in support of his case is a corner name in the Mulcaire notebook which simply states "the Sun" without specifying the individual working there.

    There's also documentary evidence which we have seen of another corner name relating to the Mirror.

    Seventhly, I can say more about Gordon Taylor's case. He brought civil proceedings against News International and Mulcaire on the back of the criminal trial. Indeed, he was the very first to do so. His claim was breach of confidence, misuse of private information and invasion of privacy. He did not allege the system that was subsequently to become the basis of pleading the civil claims.

    News International initially denied these claims. Mr Taylor's lawyers then applied the third-party disclosure against the Metropolitan Police, and secured access to various documentation including the February 2005 contract and the "for Neville" email. Mr Taylor amended his pleadings to refer to this material.

    It is clear from documents recently disclosed and publicised by the Culture, Media and Sport Select Committee that these revelations, which emerged internally in 2008, prompted News International to obtain advice from senior leading counsel as to how to proceed in the litigation.

    Mr Michael Silverleaf, Queen's Counsel, advised in writing on 3 June 2008. Mr Silverleaf's opinion is in the public domain. Apart from the documentation I have already mentioned, he referred to the existence of a draft article, which may have been based on the voicemail transcript. Mr Silverleaf noted, however, that one News International employee, whose name has been anonymised, disputed that fact.

    Mr Silverleaf drew certain inferences from the disclosed material which led him to conclude that at least three named individuals within News International, and here I quote:

    "... appear to have been intimately involved in Mr Mulcaire's illegal researching into Mr Taylor's affairs."

    It's not necessary for my purposes to comment on those inferences, but I should cite three passages from Mr Silverleaf's opinion. First, and I quote:

    "There is no public interest in its disclosure ..."

    Here, he is referring to the personal information relating to Mr Taylor. I continue:

    "... which could possible justify the use of unlawful means to obtain information about it."

    Second citation:

    "In the light of these facts, it seems to me, as it seems to both my instructing solicitor and to junior counsel, that NGN's prospects of avoiding liability for the claims of breach of confidence and invasion of privacy, bearing in mind Mr Taylor, are slim to the extent of being non-existent. There is overwhelming evidence of the involvement of senior NGN journalists in illegal Inquiries into --"

    Then there are some words redacted.

    "In addition, there is substantial surrounding material about the extent of NGN's journalists' attempts to obtain access to information illegally in relation to other individuals."

    Here, Mr Silverleaf is referring to the Information Commissioner's reports.

    "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 procure stories for publication. Not only does this mean that NGN is virtually certain to be held liable to Mr Taylor -- to have this paraded at a public trial would, I imagine, be extremely damaging to NGN's public reputation ..."

    Now, my third citation:

    "I should at this point mention that when Mr Mulcaire was sentenced for the offences noted above, it seems to have been accepted by the prosecution and the court that his contract with NGN to provide research services was for legitimate activities and a confiscation order was made only in relation to additional cash payments relating to members of the royal household. The recently disclosed information seems to throw that acceptance into considerable doubt. If the trial proceeds, there seems to be little doubt that Mr Taylor's case will be advanced on the basis that Mr Mulcaire was specifically employed by NGN to engage in illegal information-gathering to provide the basis for stories to appear in NGN's newspapers."

    These paragraphs from counsel's opinion, trenchantly worded, speak for themselves. I'll be returning to Mr Silverleaf's point that Mulcaire was not providing research services for legitimate activities.

    Mr Silverleaf also advised on quantum. His advice was written shortly before Mr Justice Eady's judgment in the Max Mosley case, where the claimant received £60,000 for a breach of privacy claim but failed in his attempt to recover exemplary damages. Accordingly, Mr Silverleaf had little to go on as regards previous authority. He did, however, advise that he believed that Mr Taylor's damages would be enhanced by various aggravating features. His overall conclusion was that the court might award a sum at any level from £25,000 to £250,000 or possibly even slightly more, although he considered that extremely unlikely. Here Mr Silverleaf was giving out limits, not realistic parameters. His best guess was that the bracket was £100,000 to £250,000.

    News International entered into settlement negotiations with Mr Taylor's advisers in the light of his deeply pessimistic advice. News International's payout to Mr Taylor was the sum of £700,000, £425,000 of which was attributed to damages and the balance to legal costs. The settlement agreement contained a confidentiality clause, which is not unusual in this type of case. This is a big number, and well in excess of Mr Silverleaf's upper bracket.

    There are a number of questions arising out of this sequence of events which have an obvious bearing on the issue of culture. One issue may be the extent to which the most senior executors of News International knew of the Silverleaf opinion and the settlement negotiations. Some insight into this issue is provided by documents placed into the public domain by the Select Committee and by recent evidence given to that committee, but the extent to which the Inquiry needs to get to the bottom of this issue in part one is debatable.

    What may be of more interest at this stage is the window this vignette might give us into the culture of this organisation. News International was consistently running the public line that Goodman was a rogue reporter. It did so from June 2008 until fairly recently. This gives rise to obvious questions about the culture of the organisation as to how far this went up. Was there a culture of denial or, even worse, cover-up? Was Mr Taylor paid over the odds to keep silent?

    In relation to Mr Silverleaf's opinion, there are only two logical possibilities: either its contents were communicated to those at a high level in the organisation, in which case certain inferences may be drawn, or a decision was taken lower down, if I may put it in this way, not to communicate its contents to those at a high level in the organisation, in which case different inferences may be drawn. In either hypothesis, we have insight into the culture of News International at the time.

    Eighthly, I turn to the issue of the Goodman Mulcaire settlements. Once they had served their prison terms, each brought proceedings for unfair dismissal in the employment tribunal. It was Goodman's case in part that senior executives in News International well knew what he was doing and condoned it. Mr Goodman was questioned about this in internal disciplinary proceedings and referred to emails which he believed would prove his case. He sought the disclosure of these emails but they were never forthcoming, News International would say because they do not exist.

    At all events, News International took advice about the fairness of their dismissal and was told that the statutory dismissal process had not been correctly followed. Settlement negotiations then took place and the parties came to terms at a figure of £140,000 inclusive of legal costs. Again, there was a confidentiality stipulation.

    Mulcaire, too brought proceedings in the employment tribunal. The issues in his case were the same, but the settlement figure was more modest, £73,000.

    Goodman's reference to internal emails which proved his case sparked off certain lines of investigation within News International. Harbottle & Lewis, a firm of solicitors, were asked to consider a database or part of a database and to advise whether they yielded any evidence of the case Mr Goodman was advancing.

    The Harbottle & Lewis investigation covered over 2,500 emails and related to five senior newspaper employees.

    In due course, Harbottle and Lewis advised that in their view these emails did not amount to proof that others knew about Goodman and Mulcaire's phone-hacking activity, and this advice was subsequently relied on by News International as supporting their public line.

    It should be noted that Harbottle and Lewis have subsequently stated that their review was limited and never intended to give News International a clean bill of health for all purposes. By implication, they are criticising News International for placing too much weight on their advice.

    Whether this is an issue which the Inquiry will need to consider is debatable. What may be more relevant, however, is the fact and level of the settlements reached with Goodman and Mulcaire, since this may be viewed as further evidence of a culture of secrecy and cover-up.

    Having reached this stage in my submissions, I am able to assist the Inquiry further in relation to the Mulcaire notebook and to provide an overview analysis. The purpose of doing so is solely to provide you with some sense of breadth and depth. My analysis is drawn from the work of officers in Operation Weeting.

    The Mulcaire notebooks run to some 11,000 pages. They evidence some 2,266 taskings, although some of these relate to the same individual. On occasion, the true targets will not be the person identified in the notebook. Often, the hacking was directed at associates of the true target, with a view to finding information about the true target.

    Overall, there are about 28 legible corner names. I have already given cyphers to some of these in relation to the counts on the origin indictment.

    Apart from Goodman, the most prolific users of Mulcaire's services were corner names A, B, C and D. A appears on 1,453 occasions; B, 3,003 occasions; C, 252 occasions; and D, 135. This accounts for 2,143 taskings.

  • I think for B you mean 303, not 3,003.

  • Did I say 3,003? My apologies. 1,453 for A, 303 for B, 252 for C and 135 for D. That accounts for 2,143. The total number of taskings was 2,266.

    The other corner names appear infrequently, often in single figures, as the basic arithmetic must suggest.

    The Metropolitan Police have recently placed in the public domain a number of potentially identifiable persons who appear in this material and who may therefore be victims. The figure they have given is 5,795 names. There are 318 outgoing calls to unique voicemail numbers from a variety from phones. Some but a minority of those, may be people legitimately accessing their own voicemails remotely.

    There are 690 audio recordings by Mulcaire. There are 568 --

  • 586 voicemail messages, mostly messages that were apparently intercepted. There were 64 identifiable individuals who were intended recipients of the 586 voicemail messages. There are, in addition, 38 recordings of Mulcaire blaggings.

    The scale of this activity gives rise to the powerful inference that it must have occupied Mulcaire full-time, an inference which is supported by Mark Thomson's evidence to the Inquiry, in particular paragraph 33 of his witness statement, which we will hear next week.

    Had Mr Michael Silverleaf known of this evidence when he advised, in June 2008, the present inferences which he was prepared to draw from far less cogent material would have been even stronger.

    According to the Metropolitan Police, News International hacking operation had certainly begun by 2002, Milly Dowler being the first named victim. We, however, have recently seen a document which emanates from May 2001. The police believe that it continued until at least 2009. This belief is not derived from an analysis of the Mulcaire notebooks, which we know were seized back in 2006.

    What inferences may safely be drawn from this material for the purposes of part one of the Inquiry? My approach will be a parsimonious one, although I should emphasise I have not opened to you all the evidence which is in the public domain.

    It is clear that Goodman was not a rogue reporter. Ignoring the private corner name and the illegibles, we have at least 27 other News International employees. This fact alone suggests wide-ranging illegal activity within the organisation at the relevant time. Aside from the number of individuals potentially inculpated, we also have evidence of a significant quantity of illegal activity over a relatively lengthy time period.

    There are a number of ways in which this activity might collectively be characterised. I suggest that it would not be unfair to comment that it was, at the very least, a thriving cottage industry.

    A public interest defence could not be run at any criminal trial because we know that it does not exist under RIPA. In any event, we have Mr Silverleaf's trenchant view expressed in the context of the civil claims that it would not have run as a defence to the breach of confidence claims either. His opinion was doubtless based on an assessment of the illegality of the means deployed weighed against the sort of information News International was hoping to unearth.

    With respect, Mr Silverleaf's opinion is obviously right, and I do not imagine this Inquiry will hear a contrary view.

    In characterising the behaviour of those who partook in these activities, Mr Justice Gross described it "as low as it gets". Apart from being illegal -- this is my language now, not Mr Justice Gross' -- it was grubby, it was underhand and it was high-handed.

    Maybe individuals, the corner names, did not know that this was illegal. That would, of course, not be a defence. Maybe some thought that public interest defence, as they saw it, justified everything. Maybe the moral compasses of those directly involved were simply pointing way off true north because, after all, so they would say, they owed a wider public duty to expose hypocrisy and to entertain. The public has a right to know. Unfortunately, it might be said against them that the same willingness to judge the conduct of their targets on moral grounds does not appear to be self-directed.

    Questions might be been asked as to how high up in News International the metaphorical buck stops. Here one needs to be careful, particularly in defining one's terms and evaluating the present state of the evidence.

    Further, the submissions I'm going to make will not cover the possibility of corporate liability under the Data Protection Act or elsewhere.

    First of all, there is a difference between responsibility in terms of the criminal law and responsibility in terms of corporate governance and ethics. The latter is capable of being much wider than the former.

    In terms of the criminal law, nothing less than proof to the criminal standard of accessory liability would suffice. By this I mean the following: there would have to be proof that X, within News International, aided, abetted, counseled or procured the relevant breach of section one of RIPA.

    Hard evidence of this would be required, not speculation and guesswork. Inferences are capable of being drawn in criminal cases but juries are warned to be careful.

    Sir, you are almost the last person who needs a lecture from me as to the criminal law and I am not a criminal lawyer. However, these submissions are not being addressed simply to you and it is important to identify the basic principles.

    When one comes to corporate governance and ethics, the debate is somewhat broader, but at the same time the Inquiry does not seek to prejudice the criminal proceedings. For the purposes of this Inquiry, News International are likely to find themselves caught on the prongs of Morton's Fork as there are only two logical possibilities: either senior management knew what was going on at the time and therefore at the very least condoned this illegal activity, or they did not, and News International's systems failed to the extent that there was at the very least a failure of supervision and oversight, with possible failures of training, corporate ethos and checking of expenses claims.

    There is, I suppose, room for the Nelsonian blind eye within this framework. The point I am making is that for either version, we have clear evidence of a generic, systemic or cultural problem. The length and breadth of the illegality enables me to make that submission without seeking to unbuckle myself from the straitjacket I have tied around myself, namely that any inferences I would draw would be parsimonious ones.

    It is, of course, possible to consider a range of other potential influences but I'm not advancing these as submissions, merely as possibilities. I've already mentioned the possibility of a culture of cover-up and denial. This issue is certainly within the reach of the terms of reference and we will need to address it.

    Consideration may also need to be given as to whether there might have been wider causes in play, both inside and outside the organisation. The existence of such wider causes gives rise to the possibility that these illegal activities may not have been confined to News International, but given the known scale of these activities within News International, this possibility cannot be excluded from account in any event.

    Part of the mitigation advanced on Goodman's behalf before Mr Justice Gross was that his job was on the line and that he was under constant pressure to come up with new and tantalising stories. These pressures led him to cut corners and to indulge in what might be described as a lazy form of journalism, rather than using traditional, fairer and more time-consuming methods.

    The cult of celebrity and the quest for this sort of salacious morsel which might, at best, form the basis for an exclusive story is part of the wider picture because it encourages journalists to yield to the temptation to peer into secret worlds if the technology exists to allow them to do so. Further, if the prevalent zeitgeist is that no limits exist because as a matter of principle, the celebrity's life is altogether in the public domain, then any ethical constraints on such behaviours are much diminished.

    I mentioned the cult of celebrity. I'm not suggesting that the press is solely or even mainly to blame for the existence of this. It is part of a wider phenomenon that human beings tend to enjoy being nosey. The human geneticist might argue that this is part of our DNA, a socialist that it is a cultural matter. This Inquiry is happily not required to resolve this sort of dispute, but it is being asked to consider the bigger picture.

    Nor in this regard is there anything new under the sun. The great American jurists, Warren and Brandeis, writing in the Harvard Law Review back in 1890, said this:

    "The press is overstepping in every direction the obvious bounds of proprietary 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."

    I commend this article to the Inquiry not because I necessarily agree with it but because it provides a counterweight to some of the historical analyses on press freedom which quite rightly have been pressed on the Inquiry by some of the core participants and it contains a pithy and very well-written encapsulation of what is meant by the public interest.

    In touching on these possible wider causes, one is reminded of what Mr Lionel Barber, the editor of the Financial Times, said at his public lecture earlier this year. I quote:

    "Most important of all, the newspaper industry itself did not take the issue secretly (sic) or seek to establish --"

  • "Did not take the issue ..."?

  • "Seriously". Pardon me.

    "... or seek to establish the truth. Indeed, aside from the lead taken by the Guardian, which was followed by the FT, BBC and the Independent, the rest of the newspaper industry took a pass on the News of the World phone hacking story, almost certainly because they too were involved in dark arts."

    My review of phone hacking has been confined to the present state of the evidence relating to the News of the World. However, the Inquiry is beginning to receive evidence to indicate that phone hacking was not limited to that organisation and this will no doubt assist on the issues of culture, breadth and depth.

    Sir, I'm now moving on to a different topic.

  • I think that's a very good moment to call a break.

  • We'll resume at 2 o'clock. Thank you.

  • (The luncheon adjournment)

  • Yes, Mr Jay.

  • Sir, I'm now moving off the issue of phone hacking because I need to turn to an overview of the existing regulatory system. This Inquiry will no doubt reach a range of findings on culture, practices and ethics, but its most important work will be in relation to the recommendations it makes of any change.

    The existing regulatory system covers the criminal law, the civil law and what may be described as internal and external self-regulation. Each of these is seeking to achieve a different objective.

    The Inquiry has already received a detailed briefing from Mr Mark Warby, Queen's Counsel, on these matters. I will aim to identify some key areas for further consideration. First, the criminal law.

    Phone hacking is an offence under RIPA as it was under the 1985 Act. The unlawful interception of communications is punishable on indictment by a term of inprisonment of up to two years. The Act covers the interception of any communications, including postal communications. There is an issue as to the true construction of section 2(7) and 8 of RIPA. These provide, under subsection 7:

    "For the purposes of this section, the times when the communication is being transmitted by means of a telecommunications system shall be taken to include any time when the system by means of which the communication is being or has been transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it."

    Then subsection 8:

    "For the purposes of this section, the cases in which any contents of a communication are to be taken to be made available to a person while being transmitted shall include any case in which any of the contents of the communication, while being transmitted, are diverted or recorded so as to be available to a person subsequently."

    Subsection 8 is clear and covers the recording of voicemails. It does not address the issue of timing.

    The issue under subsection 7 is whether a voicemail can be lawfully intercepted after it has been first listened to by its intended recipient and thereafter stored in the system as a read voicemail.

  • I notice that you don't describe subsection 7 as "clear".

  • Indeed, for the reason which I'm about to ventilate.

    One would have thought that the closing words of subsection 7 cater for this possibility, and I quote "or otherwise to have access to it". That would be the natural and ordinary meaning of those words, although it has been suggested in some quarters that the relevant communication is no longer being transmitted at that point, just as a letter ceases to be transmitted by the postal service once it has been delivered.

    This issue is touched upon but it did not really feature in the criminal proceedings before Mr Justice Gross in January 2007, largely because the evidence in those proceedings appeared to be along the lines that Mulcaire or Goodman had listened to the relevant voicemails before their intended recipients.

    In relation to counts 16 to 20, however, the position was less clear. At all events, Mulcaire was prepared to plead guilty and not to take unattractive technical points.

    Possible doubts as to the true construction of section 2, subsection 7, were ventilated before the Select Committee as a reason for the police's arguably restrictive approach to their initial investigation. If it could not be proved in all cases exactly when voicemails were intercepted, that might have been a reason for prosecutorial caution.

    Whether you need to consider that issue is unclear but if you were to conclude that the meaning of section 2, subsection 7 was opaque, or still worse, failed to cater for subsequent listening of already-read voicemails, you would no doubt wish to recommend legislative changes.

    For the avoidance of doubt, however, my submission to you is that the meaning of section 2, subsection 7 is clear and that it does cover the case of accessing read voicemails.

  • Let me think about what that means. I can construe the legislation and it may be that what I consider it means may consider some persuasive weight. It certainly wouldn't bind anybody. The only way I make it certain is by saying to Parliament: "Well, make it certain", isn't it?

  • Yes. You are sitting, if I may say so, ex cathedra.

  • Any pronouncement you make on a point of law, although persuasive and interesting, would not even -- I can put it in these terms -- bind a first instance judge.

  • So it may be unpersuasive and uninteresting.

  • It would always be interesting.

    So if one detects a possible legal or linguistic weakness in section 2, subsection 7, maybe you should point to it and make a consequent recommendation. All I am submitting is that the better view is that there is no lack of clarity in section 2, subsection 7.

    The offence under section 1 of RIPA is not subject to an express public interest defence. In deciding whether or not to prosecute any individual case, the CPS will always consider the strength of the evidence as well as the public interest. One could postulate an extraordinary scenario in which public interest issues might arise for the CPS, perhaps the sort of scenario described by Mr Witherow in his July 2007 article, modifying the facts slightly. I say "perhaps" and emphasise that this scenario is an Olympic distance away from any of the recent examples.

    I've already touched on the issues relating to the Data Protection Act of 1998. A voicemail system contains personal data for the purposes of our statute and proceedings could have been brought on the Goodman Mulcaire facts for a breach of section 55. The reason why they were not is that the offence under RIPA is clearly regarded as more serious and more closely fitting the criminal conduct in question.

    One possible difficulty with the public interest defence under section 55 is that it is not statutorily defined. The courts are therefore left with the obligation to interpret it, although on my understanding have not done so in this context. Doubtless if the issue were ever to arise, the courts would be considering other materials, such as the opinion of Lord Nicholls of Birkenhead in Reynolds and the Editors' Code, as well as the mass of cases on articles 8 and 10 of the Convention.

    The other area of the criminal law which is highly salient to this Inquiry is the anti-corruption legislation bearing on module two in particular. Under the Prevention of Corruption Act of 1906, which replaced a late Victorian statute, it was an offence to bribe a public official. The 1906 Act has been repealed by the Bribery Act in 2011. It contains a range of quite complex provisions, including the corporate offence, under section 7, of failing to have systems in place to prevent bribery. It also contains provisions under section 1 which prevent a journalist from paying a source "to induce him to perform a relevant function or activity" or "to reward him for the improper performance of such a function or activity". But if the source is a public official, it could well be argued that it is not the proper performance of his functional duty to supply information to a newspaper.

    That said, one can quite see that there will be issues around the margins in relation to whistle-blowing activities. It is also to be noted that prosecutions cannot be instituted under the Bribery Act, save with the consent of the DPP or the serious fraud office or the director of Revenue & Customs prosecutions, as the case may be. These individuals would doubtless have to consider the public interest.

  • The criminal chunk of that activity is the payment.

  • Yes.

    A number of press institutions have expressed concern to your Inquiry about the reach and penetration of the new Bribery Act. This may well be an issue which you are invited to consider.

    The Inquiry does not have the time or the resources to consider wide-ranging reform to the criminal law, nor, frankly, would this be a remotely worthwhile exercise. I have focused on just three potential areas and I doubt whether we will need to go any further.

    The relationship between the criminal law and what I have called internal and external self-representation, will need to be considered. Plainly, one of the objectives of criminal law is to deter crime, but it is a fact of life that its measure of success in this regard is patchy.

    This is not to criticise the criminal law in any way. It is the harsh reality. In relation to white collar crime, which is what we're talking about, deterrents often involve a crude cost/benefit analysis in the mind of the criminal. If he can see that people are not being prosecuted for similar offences, he may well plough on in the belief that, for whatever reason, the police will not come after him. This may be one of the reasons why a culture within News International may have grown up in the first place. Even if the criminal law were as effective as it could be, it would not follow that there is no need for better internal or external regulation.

  • To be fair, when you're talking about culture there, you're really talking about News of the World rather than other organs of News International?

  • Yes.

    I turn now to the civil law, which is a potentially vast area. Inevitably, I will only be skating the surface.

    The Inquiry will not be directly concerning itself with the law relating to defamation, which is already the subject of much parliamentary scrutiny. We are concerned with the developing law of privacy, which in terms of our domestic law, and some would argue our common law, has grown out of the interplay between and the consequent need to balance articles 8 and 10 of the European Convention of Human Rights. I stress domestic law because the effect of the Human Rights Act 1998, which mostly came into force on 2 October 2000, is to require judges as public authorities to give effect to Convention rights.

    Article 8 of the Convention provides a right to respect for private and family life, home and correspondence, article 10 to freedom of speech. It is immediately apparent that these rights must, on occasion, intersect with each other and the convention itself recognises that. Thus, under article 8, subarticle 2, a public authority may interfere with private life where such interference is in accordance with the law and necessary for the protection of the rights and freedoms of others, and under article 10, subarticle 2, the right of freedom of expression can be curtailed or restricted "for the protection of the rights of others or preventing the disclosure of information received in confidence."

  • And confidence is the tort which a lot of these claims are based upon?

  • Yes.

    The courts have consistently recognised that in a situation where article 8 potentially clashes with article 10, each human right has equal status. It is a question of balancing one right against the other, of calibrating the degree of infringement in any given case and in deciding whether the infringement in question is in accordance with the law and proportionate to the intended gain and the avoidance of foreseeable harm.

    The concept of proportionality is perhaps key to this exercise. Whether all newspapers are fully alive to this concept may lie at the heart of this Inquiry's investigation.

    I mentioned that for the purposes of article 8.2 of the Convention, the interference with private life, if it is to be justified, must be in accordance with the law. Phone hacking is not in accordance with the law. It follows that for the purposes of the article 8, article 10 intersection, privacy will always win out in relation to phone hacking.

    Complaint has consistently been made that the need to balance article 8 and article 10 rights places too much power in the hands of the judges to create a privacy law without democratic accountability. But judges have to rule on individual claims and since the year 2000, claimants have been entitled to allege that their article 8 rights have been violated. Judges are duty-bound under the Human Rights Act to apply the Convention, whether directly or via existing common law concepts inherent in the law breach of confidence and a burgeoning privacy law has begun to emerge through an admittedly limited number of cases decided over the past ten years: Naomi Campbell in the House of Lords in 2003, Max Mosley at first instance in 2008 and Rio Ferdinand, again at first instance, in September of this year.

    It is not possible fully to define what the common law of privacy constitutes, particularly when one notes that Rio Ferdinand's case is en route to the Court of Appeal. All that one can say is that on particular facts, the judicial outcome was as follows. Thus, on the facts of Naomi Campbell's case, the intrusion into her privacy went too far in view of the photograph of her that was published alongside the article. The latter by itself would not have been objectionable, since there was a public interest in the subject matter.

    In Max Mosley's case, there might well have been a public interest in publishing the material in question had the Nazi allegation been true, but critically, it was not. The public therefore had no legitimate interest in the details of Mr Mosley's private life, which were a matter for him.

  • In that case, the decision of Mr Justice Eadie did not go to the Court of Appeal.

  • And we'll be hearing much evidence about that case next week, sir.

    In Rio Ferdinand, the outcome is different because for Mr Justice Nicol, the role model argument found favour. There was a legitimate public interest in contradicting the public persona of a high profile sportsman by evidence of private misdemeanour.

    The Court of Appeal may provide greater certainty in this area before this Inquiry reports. In the meantime, or perhaps in any event, there will be calls for statutory privacy law. Such a law could go further than the rights already protected by article 8 of the Convention. At the very least, this Inquiry will need to address those calls in deciding whether to make any relevant recommendations.

    Two matters should be noted. First, a statutory privacy law would not remove power from the hands of the judges, since they would still have to interpret and apply it. Such a law would do no more than set out the general principles to be applied in particular cases, not algorithms for mechanistic application.

    Secondly and more importantly, recourse to the civil law is expensive and risky. Newspapers complain about the cost to them in the form of what they describe as unscrupulous lawyers' fees and conditional fee arrangements, but the latter are probably already on their way out in their current form, and recently have been held by the European Court of Human Rights as being in breach of article 10 of the Convention in a freedom of speech context. See Mirror Group Newspapers v the United Kingdom.

    The other side of the coin is that the litigation risk is often too high for private individuals with means and often theoretical for those without means. They can't afford even to go to a lawyer to tell them what the risks might be.

    The position is not dissimilar in relation to the prior notification issue and the possibility of acquiring newspapers to warn likely targets of impending publications to enable them to obtain immediate restraining orders from a High Court judge.

    But although the civil law is important, this Inquiry is unlikely to be attracted by solutions which are limited to the wealthy and the bold. The greater imperative may be to find solutions which work for everyone and which are, therefore, efficient, quick and cheap.

  • That might mean, might it not, considering a system whereby litigants and newspapers, or those who complain about newspaper practices and newspapers, can obtain a resolution without the expensive paraphernalia of litigating through the Chancery Division or the Queen's Bench division.

  • I turn now to the systems of internal and external regulation, since these lie at the heart of the Inquiry's work during part one.

    Before explaining the difference between internal and external regulation, I should make this general observation: the purpose of regulation in general is to maintain the public confidence, to declare appropriate standards of behaviour and conduct and to modify behaviours by what may loosely be described as a series of sticks and carrots. The manner in which a good regulator achieves is this is not merely by dealing with problems after they arise but in setting standards which reduce the risk of those problems occurring in the first place.

    By "internal regulation" I mean the range of systems within an organisation which promote or induce good behaviours and tend to expose bad behaviours if they occur. Appropriate synonyms are "corporate governance" or, more broadly perhaps, "corporate ethos". The absence of such systems will render it more likely that dysfunctional cultures will start and be permitted to drive.

    We're therefore looking at a range of internal checks and balancing, including the following: rule books, codes of practise, clearly spelt out obligations in employment contracts, training and internal seminars, proper involvement of and oversight by in-house legal advisers, proper accounting systems for approving expensive payments, in particular cash payments to sources, risk management systems and proper whistleblowing policies.

    The evidence submitted to the Inquiry demonstrates a wide range of corporate governance systems within the industry, from the virtually non-existent on the one hand to the extremely detailed on the other. Some witnesses have said that these systems are no substitute for journalists being trusted to use their own moral intuitions fashioned by experience, but this rather assumes that their moral compasses are pointing in the right direction in the first place and the pressures do not exist to cause that compass needle to want to deviate from the right direction. The relevant evidence in these issues will all be examined when the Inquiry hears from the key press witnesses.

    The concept of external regulation scarcely needs to be defined. Self-evidently, we're looking at systems outside the organisation in question. Here I propose to start with the Editors' Code of Practice, which it is the obligation of the Press Complaints Commission to enforce.

    Typically, journalists have an express contractual obligation to comply with the code of practice, and so this might also be seen as an example of internal regulation. Whereas the PCC comprises both press and lay members, the latter being in the majority, the Editors' Code of Practice Committee, responsible for revising the code, comprises 13 editors across a range of publications. The current position is that the code is reviewed annually. The latest edition of the Editors' Code was ratified by the PCC in January 2001.

  • Sorry.

    It's to be found in our document system. I give the reference and I hope it might be possible to produce it on a screen. Indeed it is, but whether we can see it at that level of magnification is another matter.

  • If you want to focus on bits of it, we might even be able to do that.

  • Let's see how we get on.

    There is also a handbook to the Editors' Code of Practice, the 2011 of which, only available online, the Inquiry will need to consider. The handbook is a commentary on the code and expands on and interprets its provisions. Given that the code of practice encapsulates so many of the issues which are central to module one of this Inquiry, I will take time to dwell on it.

    The preamble to the code, which I think is at the very top, states that it provides the benchmark for ethical standards, protecting both the rights of the individual and the public's right to know:

    "Both the letter and the spirit of the code should be fulfilled. Editors should co-operate fully with the PCC in the resolution of complaints. Any publication judged to have breached the code must print the adjudication in full and with prominence, including headline reference to the PCC."

    As I hope you can see, even if I can't, there are 16 separate provisions of the code, eight of which are asterisked; in other words, made subject to the express public interest exception mentioned at the bottom right-hand side of the document. I hope you can see that.

  • Yes. So this is the public interest?

  • The public interest, yes.

  • Is that what you're going to turn to?

  • In a moment. I'm just going to press one button and see whether I can yield --

  • We now have the public interest --

  • Actually, I'm going to article 1, first.

  • Yes. I caused myself to go off piste. May I start with article 1 before I get to public interest?

    Article 1, which has been found, obliges the press to take care not to publish inaccurate, misleading or distorted information, including pictures. The press, while free to be partisan, must clearly distinguish between comment, conjecture and fact.

    Article 1, as we can see, is not made subject to any public interest exception. Logically, there cannot be any public interest in publishing facts which are inaccurate. But if an individual complains that facts about him or her are inaccurate and this complaint is upheld, then the press have an obligation to set the record straight, although they are accorded considerable discretion and latitude as to the means of doing so. This is separate from any issues which arise in the context of privacy, because in that context, the individual may have a complaint, even if the facts are accurate. However, the issue becomes particularly acute when an inaccuracy complaint is coupled with a privacy complaint, since the inaccuracy compounds the violation of privacy.

    Article 1 also covers the publication of matters such as inaccurate statements of scientific fact. I have already alluded to this. Sometimes inaccurate statements of scientific fact are dangerous because they cause unnecessary public concern or prompt people to fail to take sensible health measures.

    The difficulty here is that the boundary between fact and opinion is very often hotly debated. If it is clear that facts have been inaccurately stated, they must be corrected.

    However, I should not be interpreted as encouraging an overly philosophical approach. A robust and common sense approach is required, particularly where the rights of individuals are concerned. Demonstrable errors must be corrected and in a condign manner. Article 1(ii) of the code expressly recognises this, as does article 2, but questions have been raised as to the extent to which organs of the press honour this obligation and the PCC enforces it.

    Article 3 of the code, which, broadly speaking, mirrors article 8 of the Convention, is absolutely critical. Intrusions into a person's private life must be justified --

  • Let's see if we can do that for the people who are able to see one of these screens. Can we do article 3?

  • Just a bit higher. I think we're on 4. I think we're on harassment. (Pause) Great.

  • We can see from article 1, subarticle (i), the mirroring of article 8 of the Convention, although not word for word. Intrusions into a person's private life must be justified, likewise must the taking of photographs in private places; in other words, public or private prospect where there's a reasonable expectation of privacy. The handbook contains a useful section on what is meant by the concept of a reasonable expectation of privacy. Before publication, editors are required to decide whether the person was photographed out of the public view -- that is not visible or identifiable with a naked eye to someone in a public place -- and whether he or she was engaged in a private activity at the time. Thus the taking of photographs of a famous person in prayer at Notre Dame Cathedral was deemed by the PCC to be a private intrusion, whereas the photography of another famous person on the Majorcan beach in the height of summer is not.

    As we will hear the week, the PCC has taken a different view in relation to a beach in Mauritius in low season.

  • That can't be the balance, whether it's high or low season.

  • There is an issue as to whether beaches in Mauritius are public or private places, but the evidence in that case -- and we will hear about it -- is it was probably a private beach because it belonged to the hotel and the public did not have untrammelled access to it.

  • There are also issues about photographing famous people simply walking along the street.

  • Mm. The Mauritian case, to be absolutely clear, was the eight year old child of a famous person.

  • I accept that sentence is slightly elliptical, but I have now expanded upon it.

    The term justified clearly requires a balancing exercise. Factors to be placed in the balance include: the complainant's own public disclosures of information and the extent to which the information in question is already in the public domain or may become so; detecting crime or serious wrongdoing; protecting public health and safety; and preventing the public from being misled by an action or statement of an individual or organisation.

  • Should we just see the public interest exception --

  • Yes, that's likely to be the bottom right hand --

  • -- going back to the bit we were on before.

  • Maybe you could just go through it.

  • There's an inclusive definition and therefore it's not confined to the three categories we see as (i) (ii) or (iii). The paradigm case would be "detecting or exposing crime or serious impropriety", perhaps another equally important case is "protecting public health and safety" and then the more controversial case, because its meaning is less precise, "preventing the public from being misled by an action or statement of an individual or organisation".

    The public interest exception in the code, as we can see, makes it clear that there is a public interest in freedom of expression itself. This, of course, is true, see article 10 of the Convention, but what this wording does not quite achieve is to make it explicit that one competing public interest must be weighed against another. Otherwise, there is a danger that editors will simply identify the article 10 interest, which by definition will always exist, and deploy it as a trump card.

    Nor is there any express reference in the code to the concept of proportionality or to the nature of the subject matter, although it should be noted and emphasised that the editors' handbook stresses the importance of this, observing:

    "It is here that editor as often fall down."

    The public interest exception raises a number of massive issues. I propose to list just some of them.

    First, under the terms of the exception, I quote:

    "Whenever the public interest in invoked, the PCC will require editors to demonstrate fully that they reasonably believe that the publication or the journalistic activity undertaken with a view to publication would be in the public interest."

    This sentence has been well-crafted. It draws a helpful distinction between means and ends, between new journalistic news-gathering methods and the end product. Sometimes the complaint relates to both but very often the focus is on the means.

    Secondly, the journalist is required to demonstrate that the activity would be in the public interest. In a case where news-gathering methods are called into issue, the appropriateness of the methods must be demonstrated before the event and not after.

    Lastly, the test is whether the journalist reasonably believed that publication et cetera would be in the public interest. Honest belief is insufficient. The belief must be reasonable. Journalists are already given a large measure of discretion here, since two reasonable people may differ and the question arises as to whether the test should be made more objective.

    Very often, the editor makes a rapid judgment under considerable pressure of time and commercial imperatives. These judgments are rarely recorded, still less second-guessed or vetted. The question arises as to whether, as a matter of good practice, these decisions should be entered into a contemporaneous written record with the gist of the reasons given. In the absence of such a record, the PCC should be much slower to find that any justification exists.

    This is my third point. The public interest exception includes a reference to the public being misled by an action or statement. In principle, therefore, it might be argued there is a public interest in exposing any mismatch between an individual's public persona and his or her private life. This is the hypocrisy argument I have mentioned before.

    One does wonder whether, in maintaining such an argument, those who propound it are placing too much weight on the terms "action or statement". What may well be required is the identification of some express statement or specific action by the individual under scrutiny. Implied mismatches may well be insufficient.

    In any event, another difficulty here, regardless of the view which might be taken on the precise language of the public interest exception, is there's a range of factual scenarios and each is capable of being treated differently. On the one hand, there may be the celebrity who employs public relations consultants positively to depict a particular image or persona designed to enhance his or her standing and to earn more money. If evidence is unearthed to show that the cultivated image is false, then, depending on how that evidence has come to light, it's certainly arguable that there's a public interest in disclosure.

    On the other hand, they may be individuals who are celebrities simply by virtue of the fact that what they are good at doing interests the public. These people may be doing absolutely nothing to cultivate a particular image of themselves and they contend, with some force, that they're not public figures and that their private lives are not for public consumption.

    Then there may be a range of cases which fall in the middle: role model cases such as Rio Ferdinand and cases of those who find themselves in the public eye because they have chosen to place themselves there; for example, a politician. If a politician makes a statement about the virtues of family life, one can quite readily see that certain consequences will flow if that politician's private life suggests adherence to different standards, but at this stage I'm putting that sort of stark example to one side.

    In this difficult middle ground, there are no hard and fast rules and certainly no clear answers. Ultimately, it's a question of public expectation. Do we expect our footballers to be role models once we've taken care in defining what that term means? Do we expect our politicians to abstain from breaking the seventh commandment, or more precisely, does the press have the right to publish a failure to abstain?

    Even this superficial analysis I have attempted demonstrates that the issues are subtle and complex ones. In terms of substance, the public interest exception probably needs to say more than it currently does.

    In his witness statement to the Inquiry, Mr Alan Rusbridger, the editor of the Guardian, refers to the five Omand principles which have been incorporated into the Guardian's own editorial code. We will be hearing about these in due course.

    Perhaps the key principle is this: that the methods used must be in proportion to the seriousness of the story and the public interest, using the minimum possible intrusion. Here one is back to the distinction -- which some would say is an entirely judgmental one -- between investigative journalism on the one hand and the quest for gossip and entertainment on the other.

    The final massive question relates to process. Editors make these decisions and they are unaccountable, save to their proprietors and to their readers. If they fail, they will be sacked, but failure means not selling enough newspapers. It does not mean consistently making the wrong judgment calls in this context.

  • Or does not necessarily mean.

  • Yes, because some proprietors would say that it does include that.

    Their readers may vote with their feet, as they might well have done in the face of the Milly Dowler revelations, had it come to it, but extreme facts would surely be required. Editors are rarely slow to judge the private lives of others, but those whose privacy is claimed to have been invaded will want to know who is judging, controlling or peer-reviewing the editors. On rare occasions, the civil courts have been asked to do this but the drawbacks here have already been discussed.

    Beyond this, the custodians of the press are the PCC but the question has been raised as to whether they have consistently done enough to constitute a break on editorial power.

  • The other question is whether they are truly custodians.

  • Are they regulators properly so-called, a matter which I'm about to turn to.

  • My final point on the Editors' Code relates to article 10 of the code. By this provision, the press must not obtain or publish material --

  • Let's see if we can get that up.

  • Okay. It's in the middle somewhere. It's the third column. Yes, thank you.

  • It's one of the asterisked provisions.

    By this provision, the press must not obtain or publish material acquired by the use of hidden cameras, et cetera, interception of telephones or voicemails, unauthorised removal of documents or by accessing digitally held information without consent.

    As I've said, this is one of the asterisked provisions and is therefore subject to the public interest exception. The difficulty here is that many of the activities referred to are illegal under the criminal law: the RIPA for telephonic interception, the Theft Act for removal of documents without consent and the Computer Misuse Act for the unauthorised access to digitally held information.

    The Editors' Code does not make this clear, and in treating hidden cameras in the same way as telephone interceptions it is in danger of misleading its target audience. Illegal conduct should be described as such, so as to avoid any confusion.

    I could have touched on other provisions of code, but in the time available I've been selective. My critique has been largely textual and I hope a neutral one. I confine myself to unremarkable matters.

    If the Inquiry wished to read a less neutral but, some might say, more trenchant approach, there's always chapter 14 of "Media Law", written by Geoffrey Robertson QC and Andrew Nicol QC as he then was. This book chapter, which has been copied and exhibited to witness statement of Mark Thompson, from whom we will hear next week, also contains a powerful attack on the PCC.

    Overall, the Editors' Code, as a document enshrining good practice, may not require wholesale revision. I've indicated the respects in which it might be improved or clarified and there may be others.

    That said, what a brief analysis of the Editors' Code achieves is to focus the Inquiry on some of the key issues with which it will have to grapple. I have covered the issue of approach to and application of the public interest test. I've also mentioned the issue of process, of what happens in editor's make arguably wrong decisions and of how the record might be set straight.

    The entity responsible for enforcing the code is the Press Complaints Commission, which was set up in the wake of the Calcutt reforms in the early 1990s. Then, apparently, the press was in last chance saloon, and many of the issues which will trouble this Inquiry were, as it happens, also addressed by Sir David Calcutt. Your terms of reference require the Inquiry to consider the extent to which there was a failure to act to previous warnings about media misconduct and the response to Calcutt is one of the main issues here.

    It will probably be more valuable, however, if I were to concentrate on the PCC as presently constituted, and consider whether it ticks all the relevant boxes. The truth is that both the public and politicians appear to have lost faith in it. The reasons for this are likely to be multifactorial, but one important consideration is likely to be the PCC report in 2009, effectively siding with News International over its interpretation of the phone hacking scandal and criticising the Guardian for overdramatising the issue. The PCC has since withdrawn that report, but the damage has been done.

    A broad consensus emerged during the seminars as to the strengths and weaknesses of the PCC. It offers a relatively quick complaints and mediation service at no cost to the complainer. At its best, it sends out desist notices to newspapers, warning them off potential breaches of privacy. It offers useful advice to editors and journalists working in the coalface and in many cases it efficiently brokers compromises which may well be satisfactory to the complainant. This work is largely done behind the scenes and the public cannot therefore assess its value. The public hears far more from dissatisfied customers than satisfied ones, but this is the nature of the beast.

    However, the limited resources of the PCC means that its role is largely reactive, not proactive, and that its ability to investigate and probe is circumscribed. It mainly operates by seeking to find middle ground because it constantly needs to retain the support of the press for what it does.

    The PCC cannot require a newspaper to print a correction or apology on the same page as the original offending article. It can advise and recommend, but there's no sanction for disobeying its rulings. Nor has the PCC the power to fine newspapers or order them to pay compensation. All of this gives the expression that the PCC is operating largely without teeth and that in the occasionally ruthless world in which it's forced to operate, something altogether sharper is required.

    Another obvious weakness in the PCC is that newspaper groups cannot be compelled to sign up to its scope and in January this year, Northern & Shell withdrew its subscription to Presboff, and thereby from the formal jurisdiction of the PCC, with immediate effect.

    The Inquiry will need to consider Northern & Shell's reasoning for withdrawing before coming to any clear conclusions about the significance of this, but the very fact that an important newspaper group can extricate itself from the discipline of self-regulation without any fallout necessarily calls into question the efficacy of the current system. Other publications have also put themselves beyond the PCC's reach.

    The time has come to attempt to draw some of these strands together. Inevitably, the recommendations you will make as to the future will depend to some extent on the factual findings you make in relation to the culture, practices and ethics of the press. Put bluntly, the fewer the problems you identify, the less it may be said that you need to recommend changes to the status quo. Naturally enough, the converse is also true.

    But regardless of the findings you make in relation to culture, practices and ethics, you will need to consider whether the existing system of self-regulation is fit for purpose on a number of levels.

    First, systems regulation must command the confidence of the public, as well as being effective in regulating and improving behaviours.

    If the confidence of the public has been lost, changes may be needed for that reason alone.

    Secondly, systems of regulation must be responsive to rapid technological change, and in our context, to the formidable challenges presented by the Internet and other similar means of mass communication.

    Thirdly, systems of regulation must continue to reflect the needs and expectations of the public and the rights and responsibilities of the press itself, and achieve the right balance between these competing interests. Most importantly, any effective regulatory system needs to deliver remedies which are efficient, quick and cheap.

    Some have commentated that this Inquiry should not be beguiled into overreacting to the News of the World phone hacking scandal for this straightforward reason. They point out correctly that phone hacking is and always has been illegal. It follows, they say, that the correct response to phone hacking is more effective enforcement of the criminal law rather than enhanced regulation of the industry. Additional, it could be said that the appropriate response also lies in improving access to the civil courts and bringing newspapers to account in this way, as indeed will be happening in the civil litigation to be tried by Mr Justice Vos in January.

    But the fact that the criminal law is, in principle, involved is unlikely to be a complete answer to this issue. Improvements in the criminal law, in particular improvements in law enforcement, can and should be considered. However, white collar crime of this sort is notoriously difficult to detect, and even a wholly effective criminal law would be unlikely to supply all the answers. Improvements in the civil law can always be envisaged and effectuated but here, again, any such improvements would be unlikely to be all-embracing.

    Overall, the Inquiry will be considering a tripartite regulation: Criminal law, civil law and internal, external regulation, properly so-called, with perhaps the most important element being possible enhancements to the last of these.

    The point can be made by looking at examples in other regulatory spheres. Dame Janet Smith's Inquiry into the serial murders of Harold Shipman led to wholesale changes in the system of medicine regulation. Whereas the immediate subject matter of the Inquiry was the criminal acts of one GP, she has not seriously suggested that the only appropriate response to this should have been a series of recommendations limited to enhancing criminal law enforcement. The domestic regulator clearly had a role to play.

  • Before you go on to discuss aspects of medical regulation, there is one feature of recent events that actually underlines the point that you're making, doesn't it? That is the recent revelations of those who perhaps should not have been the subject of surveillance being the subject of surveillance and the activities of private detectives, which may not breach the criminal law --

  • -- but which, if various commentators are right, certainly were not appropriate.

  • Sir, yes.

    There's one additional important point I should make about medical regulation because it assists in defining the terms of the discourse. Registered medical practitioners are self-regulated, notwithstanding that the general medical council was established under statute and its fitness to practice panels operate within the legislative scheme. Plus a self-regulated system can be statute-based even if the regulator is not government-run. As it happens, we can see the same sort of model in operation in relation to solicitors and barristers.

    In all of these examples, it should be noted that the subject matter is the regulation of a body of professionals. Viewed in those terms, the immediate dissimilarities with press regulation are manifest, since professionals do not exercise article 10 rights.

    At your seminars, there appeared to be little or no enthusiasm in those present for a government-run regulatory system, which would be a form of statutory regulation, still less for a system of state licensing of journalists.

  • That doesn't really work because if journalists are merely exercising article 10 rights it's rather difficult to say, "You can't do that." You can say a doctor can't practice medicine or a lawyer can't appear in court.

  • This lack of enthusiasm does not place the issue wholly beyond the agenda of this Inquiry, but is something which we can have noted. The real point though is that the true dichotomy is not between self-regulation on the one hand and a government-run regulatory system on the other.

    It remains to be seen whether the Inquiry will be attracted by a solution which entails what might be called enhanced self-regulation without any legislative changes, or whether the way forward will be statute-based regulation in some shape or form, where the standing in its own right was part of a co-regulatory regime. The possible merits and demerits of the latter will be considered by the Inquiry in the context of the evidence adduced by Ofcom and the BBC and more generally.

    I mention for the third time now the need for a system of redress which is quick, efficient and cheap. From the perspective of the consumer, the attributes of such a system may include an enhanced right of reply, the mandatory correction of frank errors in a manner proportionate to the original offending article, an enhanced role for the PCC or any successive body in adjudicating on complaints and compelling newspapers to record and publish its findings, and the setting up of some sort of tribunal, panel or assessor to provide binding arbitral rulings in breach of privacy in similar cases much.

    Some might say that prior notification is an essential ingredient of such a system. Others might say that the perspective of consumer is the wrong perspective and the press should be allowed to continue their work in a free and open society. These are the sorts of issues which are likely to occupy our time in the months ahead.

    I said I would touch on the scope and subject matter of modules two and three of the Inquiry. Module two concerns the relationship between the press and the police. The public perception -- and we will have to investigate whether it has some grounding in fact -- is that the police are often paid by the press in order to provide tips, leads, information and stories. Such payments, if made, are likely to have been in breach of the Prevention of Corruption Act 2006 and now the Bribery Act 2010. Such payments may also be part of a wider picture and a wider vice, namely the extent to which the police acts collusively with the press in failing to investigate the latter's criminal wrongdoing because there's some sort of Faustian pact or symbiotic relationship existing between them.

  • Of course, there has to be a relationship between the police and the press in one sense because the police use and legitimately use the press in order to seek out witnesses.

  • And to gain publicity for particular lines of Inquiry that they're seeking to pursue.

  • These are all important issues, but the extent to which this Inquiry will be able to penetrate institutional shields, palisades, moats and portcullises is questionable. It will be dependent on witnesses coming forward prepared to spill the beans, and as we know, there is an ongoing police investigation.

    Module three, the relationship between the press and politicians, will not be constrained by any ongoing police investigation. Here the issues are as important as they are obvious.

    We are talking about the trade in influence and power, or at least that perception. The press have sway over politicians to the extent that it is within their power to endorse particular political parties or causes and certain newspaper groups are seen as floating voters. Accordingly, the existing political settlement encourages a state of affairs in which powerful institutions and powerful men and woman within those institutions are wooed by politicians in order to retain or change their political allegiances as the case may be.

    What is the quid pro quo for this? On one level, it might simply be said that press proprietors and editors enjoy the wielding of an unaccountable power and that this enjoyment is enough to constitute the price for the bestowing of favour. On the other hand, it may be said that for some the quid pro quo is a higher price, namely the bestowing of commercial favours by government.

    The unaccountable power of the press, or of certain parts of it, is a consistent theme here, and if that power is concentrated in a limited number of individuals, the problem is capable of being visualised as all the more menacing.

    This Inquiry will start by hearing evidence from the core participant victims from a range of individuals in various walks of life who claim to have suffered from various manifestations of press misconduct and who wish to bring these matters to the Inquiry's attention. Then we will move on to hear evidence from those directly involved in Operation Motorman and the work of the Information Commissioner's office in this respect.

    Thereafter, the work of the Inquiry will branch out into hearing a number of witnesses who are critical of the culture, practices and ethics of the press before we move on to hear the substantial body of press evidence, which is likely to give us a different perspective. Then we will hear from the BBC and other broadcasters before concluding module one with evidence from the regulators. This undoubtedly is a challenging programme and I have not even mentioned the witnesses for modules two and three.

    I said at the outset that this Inquiry will set some unprecedented challenges. I do not believe that I was guilty of any exaggeration.

  • Nor, for the avoidance of doubt, Mr Jay, do I. I think that's possibly a convenient moment to have a break. We'll come back in about quarter of an hour. Thank you very much indeed.

  • (A short break)

  • Right. Mr Jay, let's see if we can work out where we're going to go from here. As I understand it, witnesses have been arranged to commence from next Monday?

  • So we have the rest of the day and the next couple of days, on the basis of our seven-day format, sitting four days next week, to hear the remaining opening submissions.

  • Do I gather that your informal discussions suggest that that won't necessarily take up all the time that I have available?

  • We have plenty of time to hear the remainder of the opening submissions on Tuesday and Wednesday. The programme for the moment, so that I can make it clear -- I've discussed it with the individuals concerned but not necessarily with everybody collectively -- is that Mr Jonathan Caplan QC will be starting tomorrow at either 10 am or 10.30 am on behalf of Associated News, and Mr Rhodri Davies QC --

  • Why is that this way around? I'm not terribly excited about it, but why is Mr Rhodri Davies not starting?

  • It doesn't matter.

  • If you feel that we should hear from Mr Davies first --

  • I just wonder whether his clients' -- well, perhaps -- it might be there's a reason for Mr Caplan wanting to go first because he has other commitments.

  • If you feel it should be Mr Davies and then Mr Caplan, let's do it that way around.

    I know that Mr James Dingemans QC is otherwise engaged until 3.15 in the Supreme Court, so we have pencilled him in but not before 3.15. Frankly, at the moment, unless the Daily Telegraph are wanting to make oral submissions -- and we don't believe that they do -- that's it for tomorrow.

    On Wednesday, at the moment, we have --

  • The Telegraph have submitted something in writing, haven't they?

  • Yes. I think Mr Gavin Millar was telling me he's not minded to amplify those orally.

  • But I might want him to. He's gone?

  • He has gone, but we can check on his availability, if you wish.

  • Yes. I don't mind sharing with you my concern, because it seems to me that it's probably sensible that these submissions are available publicly. I don't require people to speak where they don't wish to, but if I just pick up the document which I've seen, I'm rather concerned at paragraph 6 of his opening submission. So that this is not coded, let me read it and tell you what my concern is. It says:

    "The starting point of the Inquiry that a free and enquiring press acting in the public interest is fundamental to pluralistic democracy gives us encouragement."

    Well, I'm pleased about that. I have no problem with that at all. It's the next sentence:

    "We also welcome the Inquiry's appreciation that 'any new regulatory system, howsoever devised or organised, could impact adversely on freedom of expression or have a chilling effect on responsible journalism which is so critical in our democratic society'."

    Now, that quotation is actually a quote from paragraph 34 of a ruling I gave, but with great respect, it doesn't seem accurately to reflect that ruling. The words are correct but the inference from paragraph 6 is that I was saying that any new regulatory system could impact adversely, and that's not what I said at all.

    If necessary, I would want to hear Mr Millar on the topic, or you could review it. If I just remind you what I did say, what I said was this:

    "The fundamental dichotomy is between a requirement to understand and identify the extent to which the print media have been prepared to use illegal or unethical techniques on the one hand, and descending into the detail of specific acts of alleged illegal and unethical conduct on the other."

    I omit some words in parentheses.

    "In avoiding the latter, however, I must not leave the analysis of the former at such a high level that it is insufficiently evidence-based to justify reaching conclusions about the adequacy of present methods of regulation and the justifiability of new or different mechanisms. That is so particularly if it could be suggested that any new regulatory system, however devised or organised, could impact adversely on freedom or expression or having a chilling effect on the responsible journalism which is so critical in our democratic society."

    I hope you see that those two things are slightly different.

  • Sir, we'll take on board those comments.

  • It's rather odd that one is doing it the wrong way around. I have no problem if the Telegraph don't formally want to open it. That's absolutely up to them and I'm very happy to put their opening submissions into the public domain, but I'd be supremely grateful if they didn't -- I won't use the word "spin", but slightly misrepresent what I was rather careful to say in that paragraph. It may be that that's where I am, but if one reads your submission, it suggests I've already got that.

  • We will take that on board.

  • Thank you very much. Right.

  • And then Wednesday? I was going to fill you in on Wednesday?

  • Carry on with Wednesday, yes.

  • The NUJ are going first, at the moment at 10 am. I think we're going to hear from their general secretary, Michelle Stanistreet. Then we have Alan Rusbridger of the Guardian, who is lined up for about 11 o'clock on Wednesday, and then Mr Sherborne will conclude.

  • Then I may or may not come back, and of course we're going to hear from Mr Garnham now.

  • A witness list for next week, which takes us actually to close of play on Monday, 28 November, will be made available this evening, and we can hope to populate the remaining days, the 29th and 30 November and 1 December, by, say, close of play Wednesday this week, so everybody knows what we're doing until 1 December. We would welcome, in relation to next week's witnesses, any lines of questioning from the core participants.

  • And they will have the statements on the intranet available for them from when?

  • Some are there already. They're going on as fast as possible.

  • Very good. That's one of the reasons why we can't start until Monday, until everybody's had a chance, besides the complications of organising people to be here.

  • Sir, can I rise, somewhat perturbed, to raise a matter which I hope sincerely is a coincidence and nothing more sinister, but there has been detected on our system -- and I say ours because I see it nowhere detected on anybody else's intranet system -- a threat, according to my computer in front of me; namely that --

  • A threat raised by the possible interception of material on our intranet system. I say that because we do have on our system, unlike others, confidential material, as I understand it. I'm told it's the same, but a Trojan horse has been detected, seeking to access material on our computer system. Now, it may well would be a coincidence but looking around the screens, I don't see a threat detected on anyone else's computer systems.

  • There's nothing at all on my screen. What does it say? Read it out.

  • It says, in very large red lettering, rather similar to the News of the World get-up, it says --

  • No, no, Mr Sherborne, I'm sorry, that's a gag that you're going to have to do without. Keep going.

  • "Threat detected. File name ..."

    Then it has a file name, a series of digits and letters, and then: "Threat name: Trojan horse", which, sir, you will appreciate does refer to a computer virus.

  • Then it simply offers a series of options: "Move to vault", which is safely to quarantine the infected file, "Go to file", which I think takes you to the file or part of the registry where that file resides, and then the last one and perhaps the least attractive, which is to ignore the threat.

    I don't know whether anyone can deal with this at this stage?

  • I absolutely want it dealt with at this stage.

  • Sir, that's why I rise at this moment.

  • No, no, Mr Sherborne, thank you very much. My screen is entirely blank.

  • Can I just say I had something similar when I started off this morning but I cleared it and it's gone.

  • You decided to ignore it, did you? Somebody must understand the men that run around in these machines.

    Thank you very much, Mr Sherborne. I would be grateful if that could be dealt with as soon as possible and certainly today.

    With that excitement out of the way, does anybody have any observations about the timetable?

  • I don't know if it properly goes with a conversation with the timetable, perhaps I could just say that so far as we're concerned, our written opening submissions were written to be made public, and they can be made public as soon as anyone would like to do it. I say that because I am not intending to read them out or repeat them in my oral opening tomorrow morning.

  • No, I understand that and that's very helpful. That will happen. I have rather visualised that those who have put in written submissions are aware they're likely to go on the Internet, as indeed all the other submissions have been made over the months that we have actually been thinking about this Inquiry, and have gone onto the Internet. Does that cause anybody any embarrassment? No? Good. Thank you very much indeed.

    Right. I'm not often thrown, but Mr Sherborne has managed to do that very early on in this Inquiry, I hope for the last time.

    Mr Garnham, you're in a slightly different position to everybody else, so if it's convenient to you, then I am very happy to hear what you have to say at this stage. Thank you very much indeed for your comprehensive submissions, which, of course, take account of the ruling that I gave about a week ago.

  • Sir, yes, they did.

  • Do I gather from the way in which your statement is expressed that at least at present the basis of my ruling is sufficient for the Metropolitan Police to rely upon?