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

  • Sir, the aim of these closing submissions is to supplement briefly the written submissions that have already been filed on behalf of the Express and Star newspapers and OK! Magazine.

    May I make three short opening observations?

  • First, by emphasising the importance of a free press, you, sir, have repeated and repeated again your recognition of this fact, that it is a starting point for any consideration of the matters engaged by the Inquiry. It is not a point that needs to be developed.

    Secondly, we do respectfully submit that the evidence has shown that there was no phone or computer hacking carried out by the Daily or Sunday Express, the Daily Star or the Daily Star Sunday or at OK! Magazine. This is important, given the background against which the Inquiry was established, but it is clear from the terms of reference, the evidence and what you have said that it does not begin and end there.

    Thirdly, it is essentially common ground that the vital importance of the press brings with it responsibility and rights and obligations. A free press can itself be held to account by criminal, civil and regulatory law, and I will address further submissions on those aspects.

    May I turn first to the criminal law? There are various statutes which regulate the behaviour of journalists, and it is not necessary or appropriate to say anything more about that now. But it is an essential background against which considerations of regulation need to be considered.

    Secondly, civil law --

  • Before you pass from crime, would you agree that for good and understandable reasons, it is much, much more difficult to pursue a criminal investigation against a newspaper or a journalist because of the respect that is a consequence of Article 10(2)?

  • Article 10(2) engages both civil, criminal and regulatory law.

  • Yes. But, for example, not naming sources, the way in which the search powers are framed, all make it much more difficult. That's the first point.

    The second point is that it requires a victim to be not merely identified and identifiable, but to make a complaint. And of course, as we've seen in the context of a number of different aspects of the Inquiry, that doesn't happen very often, because they don't know.

  • There is certainly the need to know before you can complain. I entirely accept that. That's a feature also of civil law and much of regulatory law. If people don't know what's going on, they can hardly complain in whatever sphere. But for obvious reasons I'm not developing submissions about the criminal law. And you, sir, have well in mind the importance of not going unnecessarily beyond that which is required for the purposes of proper regulation.

    May I turn, then, to civil law and make briefly a few points in relation to that?

  • We do submit a substantial vice in the area of civil law relating to newspapers is the cost of proceedings. This affects both those who wish to complain and the newspapers.

    The civil law can be an effective system for the regulation of relationships, but only where it is generally accessible. And you, sir, are well aware of all the jurisprudence on Article 6 and there's no need to develop it.

    Any system providing for speedy, binding and final, subject to appropriate appeals, resolutions would be attractive to all those attempting to maintain the appropriate balance. And it might be thought that an important part of your recommendations, sir, should engage issues of accessibility for those complaining about newspaper conduct as well as cost for the newspapers of those complaints.

  • One of the things that I've ventilated during the Inquiry is that a regulator should have some arbitral arm which can do just that, and I'd be interested to hear whether you have any submissions on that, and in particular on the possibility that one could recommend -- and I'm not there yet, but I'm thinking about every possibility -- that if a newspaper organ was not in the regulatory system that had the arbitral arm, so that a complainant had to go to court and incur costs, then cost shifting should operate in a way that protected the victim, on the basis the newspaper could sign up to a regime which would free it of those costs.

  • Can I just address both of those?

  • We had put in written submissions, which we didn't repeat, in relation to a tribunal system. Obviously a system of arbitration depends on the consent of both parties to be effective. And effectively it seems that people, when they're talking about arbitral systems, are talking really about a tribunal system. Because of course, unless after the event both parties give their consent, then it really adds nothing to the current law as it exists.

  • Oh, I don't know, because if the press have joined a system that provides a free and speedy remedy, and the victim doesn't choose to go down that route, then the costs system might work the other way. If the press interest didn't sign up to the system, then it would do so at its own cost.

  • So long as there was balance between the two. One can see many advantages of a system that is speedy and accessible. All the evidence that you have heard, sir, from both sides suggest that costs is a real barrier to effective complaints in civil proceedings, and if there was any way to remove those barriers, which avoided duplication -- the last thing one wants is -- and a complaint that was directed at the current system is that people could make their complaints, go through the regulatory system, and then use that really to piggyback civil proceedings, whether that happens very much or not.

  • No, it was nobody suggesting that it was a regulatory system in the end, now, whatever they might have thought before.

  • But I agree with your proposition if you put it this way: it's very unhelpful only to be able to go to court.

  • Yes. We do respectfully make that submission, sir, and we do make the principal submission that costs become a barrier not only to those that need to complain but also to the newspapers that are dealing with the complaints that are made against them.

    May I mention briefly one other area of civil law, and that's the law of privacy. I don't propose to develop the very detailed submissions that have been put in on the law of privacy and its development, but I hope I can make this submission. Back in 1990, when David Calcutt QC, to whom there's already been reference, was appointed to head the departmental committee into measures necessary to give protection to individual privacy and whether statute was required, that led to the 1991 establishment of the Press Complaints Commission, but the failure to develop any statutory law on privacy was then overtaken by, of course, the jurisprudence incorporated by the Human Rights Act in 1998, and it might be thought that when you analysed the vast majority of the complaints before you and consider the general nature of the culture, ethics and practices of the press, that many of these take place against a law of privacy which -- and it is a failure of the law and has been acknowledged as such -- has been less than certain. Perhaps it is now beginning to develop in a way that responsible journalists and those advising consumers and those making complaints can have some better idea of what the outcome is going to be, but uncertainty in the law, particularly in this area, has been a particular vice.

    In that respect, of course, sir, you have to deal with the fact of the different categories of people and their approaches to privacy. I've set that out in paragraph 9 of your written submissions, but in our submission there are people who provide details of their private life which others consider to be far too much information, and that you can see from some of the magazines and social media, and there are some people who are happy and content with good press coverage, even where it is intrusive, but are then very unhappy with negative press coverage, particularly where it is intrusive, and there are others who are very protective about their privacy full stop and end of story, but people don't always stay in those same categories, and of course the difficulties of trying to identify that have formed the backdrop to some of the cases before you.

    Can I then turn to regulation and start with the principled aim of regulation. In our submission, the most effective statement about regulatory intent was said in relation to the regulation of lawyers, who are also known to sin and fail, in Bolton v The Law Society, and that is in 1994, 1 Weekly Law Reports, and that was Lord Bingham in the Court of Appeal effectively setting out the principled aim of regulation, and it is not to punish, that can be an effect of regulation, and it is not to compensate, that can be an effect of regulation; it is to ensure that maintenance and indeed the enhancement of standards in the regulated area.

  • I think that's tremendously important, because it's quite different. It isn't sufficient to say, well, there's the criminal law or there's the civil law.

  • There is something different.

  • They can overlap, and it would be an absurd advocate who made the submission that they don't overlap, but the principled aim of regulation is different from both the criminal law and civil law, but it has flip sides because people talk in terms of regulators having substantial powers to fine, as if that was in some ways a shortened form of the criminal law and this was a more effective way of punishing wrongdoing, that is again to miss the substantial point of regulation.

    Can I then turn to some bright lines we submit in relation to regulation? First, there should be no current editors on the regulatory body. This is an industry which is still too small to enable persons to be seen to be independent; whether they are or not is in some respects not the thing, but to be seen to be independent of the bodies which they are regulating. So far as individual titles are concerned, and it's no secret that those that I represent are not current members of the PCC, it is again too small that animosities or perceived animosities and loyalties or perceived loyalties could undermine what could otherwise be a proper functioning body.

    Secondly, it is necessary to consider the scope of regulation. Is it to govern printed media alone, because we know that there are systems for regulation of television and radio, and importantly, and my learned friend Mr Millar has already dealt with this, is it to extend to the Internet?

    In News International's closing overview at paragraph 35, they set out the Reuters report into digital news and give the reference for that, and they note that estimated 77 per cent of the UK population uses the Internet -- so of course it's self-selecting in that respect -- accesses the following news sources in a week: online, 82 per cent; television, 76 per cent; print, 54 per cent; and radio, 45 per cent. We do respectfully submit that any system of regulation of the printed media which excludes the Internet media is one that is not going to be comprehensive.

  • All right, let me just understand what that means. Do you there mean to submit that there ought to be a system devised that requires, mandates, those that operate on the Internet to join, or do you mean to suggest that you should devise a system that encourages but does not compel, in other words, those to join, because all you've said is that the system should not exclude.

  • I do propose to develop that submission, but to tell you where I go in that, and it's part predicated in our written submissions, is this: we do respectfully submit that given the comparative decline of print media and what will be the increasing prominence of Internet media, that any system of future regulation must be comprehensive of all news media. Therefore, one is likely to be in a situation where perhaps little points apart, and we'll come to those, you are in a system of voluntary regulation, and therefore you're in a system whereby economic and real factors, being as important as they are to decision-making, one is in a system whereby you are encouraging persons to join a proper regulatory body that has so many advantages to all that they will become members of it.

  • You'll have to tell me what the advantages are going to be for the Internet providers.

  • In your own time, Mr Dingemans.

  • Yes. But in our submission, there are real difficulties, and part of the difficulties in compelling Internet providers -- those have been developed in other submissions and I'm not going to repeat those, but the real difficulties with compelling Internet providers of news show that the need to ensure that there is not as it were an imbalance of regulation become more important.

    Can I then just continue to address some other bright lines for the regulatory body?

  • We respectfully submit that the regulatory body must have the power to act on complaints, but also the power to act on clients of its own notion. It might be thought that a historic failing of the body was its inability to act in response to other than formal complaints.

    We do also submit that the body should have the power to deal with the relevant applicable standards, for this principled reason, is that it draws a further dividing line between any system of appointment of that body, which may or may not, depending on your recommendations and depending on legislative take-up, take statutory involvement, and therefore, for example, the Editors' Code, which has by and large seemed in the evidence to have withstood much analysis, can be set by that body.

  • Is your bright line about editors sufficiently broad as to extend to objecting to their involvement in the creation or at least the advice as to the creation of a code?

  • No. Not in that sense. At the moment you have a code which will continue, no doubt, to be refined, but so far as the regulatory acting on complaints and dealing with other matters, as you know, the evidence why we're not current members of the PCC is before you. And, sir, you may have summarised it accurately when you pointed to personalities and animosities, but that plainly wouldn't extend to the aspect of drawing up the applicable standards, and there are maybe advantages in that respect.

    We also respectfully submit that there may be times when an editor has had sufficient time away from the industry so that there are no current loyalties or animosities or indeed historic loyalties and animosities, they might then become suitable, but that would inevitably be a matter for the body appointing those to be members of the new regulatory body.

    Can I in that respect turn to our final bright line for submission, and it is this: we do respectfully submit that the constitutional significance of the free press is such that the body appointing the persons to the regulatory body should have protections equivalent to those governing the appointment of Judicial Appointments Commissioners. The judiciary has its own constitutional importance in our society, and we do respectfully submit that the press has a vital role to play and that it is essential to put clear blue water between Parliamentary bodies and the regulators. There have been suggestions in the evidence that a headhunter might be appointed to find the next people, and we do respectfully submit that whilst the headhunter would no doubt do a conscientious job, may in fact find the best person for the appointment, there's none of the transparency and systemic guarantees against interference that are required in these areas.

    In that respect, if you are in the slightest bit interested to read about that, Baroness Prashar wrote an interesting article about the current failings in the system for the office for appointment of --

  • You mentioned that in paragraph 19 of your submissions, but don't provide a reference.

  • Ah, I did provide it in my earlier submissions, which is why I didn't provide another reference.

  • All right, then that's my fault.

  • No, no, I can well understand a desire not to read the earlier submissions.

  • Oh no, no, I'm happy to read them, but I didn't read them alongside these. I think I might have read the paper, but I just want to check.

  • No, it is there. Effectively at the moment there's still no guarantee of Nolan compliance appointments. They have all been that, but there is not statutory guarantee on that, and that was a matter on which Baroness Prashar made a specific comment. But we do respectfully submit that any system for appointment to the new regulatory body ought to include the Nolan guarantees by way of appointment.

    Those were some distinct submissions in relation to regulation.

    So far as the line between whether it needs to be statutory or should be voluntary, we do respectfully submit that any principled system of tribunals or arbitral tribunals, as you have suggested, may provide their own incentives for that joinder by means of the print media and indeed others. For example, you have important publications, such as you've referred this afternoon to Private Eye, standing outside the PCC system, which has run its own campaigns about costs of libel proceedings, which in itself might then consider a new regulatory body with the cost-shifting principles that you have referred to do have such advantages that it might be worth joining.

  • Yes. The reason I mentioned Private Eye was because Mr Hislop's reasons for not joining the PCC are very different from Northern & Shell's reasons for leaving, are themselves principled, and understandable in the context of the work that Private Eye does.

  • Yes. He could hardly publish Street of Shame each week and then expect to be in front of them the week after.

  • We do respectfully submit that if you deal with that aspect by ensuring credible public appointments to the regulatory body and then put in proper systems for incentivised joining for the bodies that are carrying out the printing, whether on the Internet or by way of print media, then there may be developments in that respect.

    As far as the --

  • But what I couldn't ever cope with there is somebody who's deliberately placed themselves outside the jurisdiction, but then no system, either of civil law or regulation, would capture them unless they want to come into it.

  • No system of criminal, civil or regulatory law would catch them, no, sir, and in those circumstances, ensuring that you have a voluntary system which is attractive to all -- for the proper reasons, not because they'll then just make decisions in their own favour, but attractive to all the relevant parties, we do respectfully submit is something that would be a proper way to go forward.

    May I finish in the six minutes I have remaining --

  • Mr Dingemans, we asked how long everybody wanted, as I said to Mr Millar. You take the time that you want to to develop your views. They are very, very important, because Northern & Shell are different to many of the other core participants because they have a very different view of regulation, for whatever reason, so don't worry about the time.

  • Well, I still intend to be six minutes.

  • It was just to address, sir, your questions on culture, practices and ethics of the press and some suggestions for consideration, and we do respectfully submit that they are no more nor less than that.

    The first is this: it is notable that in British print journalism there is a general and absolute fearlessness on the part of journalists of politicians, so journalists do not fear politicians, and that is a remarkable feature of journalism in this jurisdiction, and something that necessarily falls to be preserved.

  • I hadn't proposed -- I had seven propositions. I wasn't going to deal with the politicians' views.

  • But, you see, it is actually important, isn't it?

  • Because plainly the relationships between press and politicians are relevant, but if you are looking for one to fear the other, given the power that is held -- the legislative power that is held by politicians and the executive power that is held by politicians, we do respectfully submit that it is a much better society that has the press fearless of politicians than the press fearful of politicians.

  • I would like them neither to be fearful of the other, but each to recognise that the other is doing an important job in our democracy. Or is that too much to hope for?

  • I suspect, sir, you would find that in the evidence before you.

    Can I turn to the second proposition?

  • This comes from the evidence of some of the editors and journalists that gave evidence before you, which was that they do genuinely have a relentless desire to communicate the news as they see it.

  • Thirdly, they do have a sensitivity to their own readers' opinions, but it might be thought a general insensitivity to public opinion. That may be a good or a bad thing, but we respectfully submit it's established on the evidence.

    Fourthly, the evidence shows that they have a tendency to see news as divorced from the individuals involved.

    Fifthly, in some areas, there has been shown a stunning lack of judgment to the extent that it might engage the criminal law, and I say no more about that; about where lines can properly be drawn between the public interest in acquiring news and privacy.

  • Would it be fair -- and I don't require you to answer this question, Mr Dingemans, if you don't want to, but just thinking about your last two points, and putting them together to say that it's possible that that combination explains what happened in relation to Mr Jefferies.

  • Indeed, sir. Inevitably, because they are skilled, they've been trained to deal with news, but aspects of the training, you might have thought that some aspects of the academic aspects of the training still don't necessarily deal with the fact that there are individuals at the end of a news story and in some respects you have to understand that the journalist can't stop printing the news because of those personal aspects, but when one looks at the example of Mr Jefferies, to the extent that it even engaged the criminal law of contempt, or civil criminal law of contempt, that there was a stunning lack of judgment in some of the newspaper coverage.

    We have respectfully submitted that the Attorney's current use of the laws of contempt, which have existed and continue to exist, is something to be commended.

  • The sixth proposition was this, that the evidence shows that those proprietors and senior members of the profession have a strong continuing desire to exist by making a profit.

  • And seventhly, and it may explain some of the stories where people have thought that a factual background exists and gone to print too early, there is a desire to be a step ahead of other publications.

    Those were seven general propositions. I'm sorry they're not fact-specific, but I hope you'll forgive me for not making them fact-specific, for your consideration.

  • Well, that's a very interesting analysis. I think I can think of lots of examples of almost every single one.

  • I'm very grateful. Those are my submissions.

  • Thank you.

    Right. Well, we have a rather longer day tomorrow than we would have had, but so be it. Thank you very much. Tomorrow morning, 10 o'clock.

  • (The hearing adjourned until 10 o'clock the following day)