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

  • Yes, if I may, sir. First of all, the devising of a protocol. I will say only this, that as Mr Jay rightly says, Mr Caplan suggests that the protocol come appears to come from the Al-Sweady public inquiry. There are other models, and the Al-Sweady public inquiry's model is a somewhat legalistic one, and without wanting to give evidence, having been involved in that inquiry, it does result in a rather prolonged procedure.

  • Anything that isn't overly legal will only be advantageous, provided it is sufficiently clear --

  • Yes. An alternative method was used, for example, in the Baha Mousa Inquiry, which, despite a huge number of such applications, worked extremely efficiently, and all I was going to say in that regard is that we would be happy to correspond with Mr Jay about the devising of a suitable formula.

  • The second point I wanted to make, though, sir, is rather more fundamental and it's anticipated in our written submissions. We are concerned, sir, about the possibility of your being in receipt of either secret or anonymous evidence, and so I am clear, I'll define those terms if I may. First, "secret" being material that you receive, which is not just anonymous in the sense that its author is unidentified, but which the existence of which is not revealed to core participants. "anonymous" is self-evident; it's material you have received without knowing the author.

    Sir, our concern is fair trial concerns. If it is made public, as contemplated by you but not decided by you last Wednesday, that you are willing to receive evidence of either secret or anonymous type, which may be exculpatory of particular individuals, then there may arise a real danger. At subsequent criminal proceedings, it might be said by a defendant, "There is or there might be material in existence which would help me in my defence, which is held by the state in the form of this Inquiry, which I cannot get my hands on or know what it means, and I ought to be able to, if I am to have any prospect of the a fair trial."

    We say that in consequence, sir, you should consider indicating that if there is exculpatory material received by you, particularly if it's received by you on a secret basis, it will be disclosed to the prosecution.

  • I have to think about that, because what I absolutely don't want to do is to encourage lots and lots of people to think this is a wonderful way to generate some exculpatory material, by arranging all sorts of people to say anonymous things to generate stuff that I have to then pass to you on the basis you have to disclose it and so --

  • The circle is complete.

  • -- complete the circle. I have sufficient experience of the criminal law to understand the risks.

  • Absolutely, and we appreciate that as well, but it wouldn't be right for us not to make the submission that you're indicating a mechanism by which secret material can be generated, without pointing out the obvious fair trial difficulties.

  • But my only interest would be to receive information about the culture, practice and ethics of the press. I would not be asking, necessarily, for the sort of material that might be at all relevant to specific exculpatory --

  • But I understand the point.

  • If that were made public, that goes some way to the concern we have.

  • Okay. Mr Caplan, thank you very much. I'm not prepared to allow anyone anybody to criticise you for doing the work on a protocol, because you did it.

  • It might not be the right model, but you did it. Thank you.