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

  • Good morning.

    I don't consider this to be a court, but we will see how we get on. There is no prohibition on the use of live text-based communications, and at least at present I am satisfied that its use does not pose a danger to the interference or the proper conduct of this Inquiry. Unless any difficulty arises, I am happy to make it clear that the use of unobtrusive, hand-held, virtually silent equipment for the purposes of simultaneous reporting of proceedings to the outside world, as they unfold, is entirely acceptable.

    On 28 July I made it clear that the Inquiry would start by focusing on the relationship between the press and the public, and I referred to holding a series of seminars so that the issues could be considered from the perspective of all involved. I invited anyone who wished to be identified as a core participant within Rule 5 of the Inquiry Rules 2006 to notify the secretary to the Inquiry prior to 31 August, and I said that I would hold a preliminary hearing to address key aspects of the way in which the Inquiry would be undertaken. This is the first such preliminary hearing.

    A number of applications have been submitted in which different parties have sought to be designated as core participants. Some of these applications demonstrate a lack of understanding of the circumstances in which it is appropriate to make such a ruling, the effect of designation, and the extent to which those not designated will or may continue to have a role in the work that is undertaken.

    Before hearing applications, which I will do shortly, it is, therefore, appropriate to say something more about how I am minded presently to proceed, subject of course to hearing representations to the contrary.

    The first important principle is to identify the scope of what is being undertaken. The terms of reference of the Inquiry are, as I have no doubt you will all have noticed, widely drawn. It is worth repeating that they are split into two, only the first of which I am presently in a position to embark upon prior to the conclusion of the police investigation and the resulting prosecution, if there is to be one.

    Part 1, and it's worth just repeating the terms, is as follows:

    "1. To inquire into the culture, practices and ethics of the press, including:

    "(a) contacts and the relationships between national newspapers and politicians, and the conduct of each;

    "(b) contacts and the relationship between the press and the police, and the conduct of each;

    "(c) the extent to which the current policy and regulatory framework has failed including in relation to data protection; and

    "(d) the extent to which there was a failure to act on previous warnings about media misconduct.

    "2. To make recommendations:

    "(a) for a new more effective policy and regulatory regime which supports the integrity and freedom of the press, the plurality of the media, and its independence, including from government, while encouraging the highest ethical and professional standards;

    "(b) for how future concerns about press behaviour, media policy, regulation and cross-media ownership should be dealt with by all the relevant authorities, including parliament, government, the prosecuting authorities and the police;

    "(c) the future conduct of relations between politicians and the press; and

    "(d) the future conduct of relations between the police and the press."

    This part of the Inquiry, therefore, splits into four elements or modules. The first concerns the relationship between the press and the public, and extends not merely to the allegations of phone hacking but also to other potentially illegal or unethical behaviour.

    It will require an understanding of the climate in which the broadsheet and tabloid press are required to operate, and to consider what limits, if any, there should be on what intrusive behaviour is justifiable as in the public interest, either for investigative purposes or because of other public interest, however that phrase might be defined.

    The second concerns the relationship between the press and the police, and the extent to which that has operated in the public interest or has become too close.

    The third deals with the relationship between press and politicians. Without descending into a detailed examination of the areas covered by part 2 of the Inquiry, which follows the police investigation, it will be necessary to achieve a sufficient narrative of events to form the basis for the fourth module of the first part of the Inquiry, namely recommendations as to the way forward.

    I have been asked to report on this part of the Inquiry to the Secretary of State for Culture, Media and Sport, and the Home Secretary, within 12 months. The breadth of the Inquiry is such that I will have to be extremely focused in relation to those areas on which it will be necessary to hear oral evidence, and I will expect everyone involved in the Inquiry to be similarly focused.

    We will limit our approach to the essential, on the basis that if we are to travel along each avenue that we could there is no prospect of concluding the work, even in a very much longer period than that previously envisaged.

    Before the evidence starts I shall set out a timetable, about which I shall ask for representations, but I shall then require everyone to adhere to it.

    Again, subject to representations to the contrary, I am presently minded to proceed by holding a series of what might be described as teaching sessions to provide to me and to the assessors key factual material on matters that are relevant to the issues which the Inquiry will be considering. Two will be held in public, and concern the existing legal framework governing the operation of the media, including the relationship between Articles 8 and 10 of the European Convention of Human Rights, data protection, freedom of information, along with the law relating to broadcasting, both at UK and at applicable European level. This will cover both the criminal and the civil law.

    Another teaching session is likely to provide the factual material that identifies the relevant regulatory models, the structures and concepts, as well as dealing with Ofcom and broadcasting regulation, including models such as the Advertising Standards Agency, the Information Commissioner, the Financial Services Ombudsman, and any other relevant suggested model.

    These are not intended to start the debate, but merely to provide the present picture, the present starting point.

    The third teaching session is the only session that I am presently minded to order to be held in private, and that is to provide information as to the technicalities of interception, both of mobile and other phone calls, emails and other forms of covert surveillance. Again it's simply so that I, along with my assessors, can learn what can be achieved, albeit in disregard of the law, in order that we can better understand the issues.

    These sessions are not intended to deal with matters of opinion or potential solutions but are factual in content only. Save in relation to the third, as I've said, they will be held in public, and I hope that they will be available either visually or at least in transcript form to the wider public. That's not to say that anyone else will be invited to participate in the sessions. They are simply fact finding, as I have described.

    From the teaching sessions, I am presently minded to proceed to a series of seminars of the type that I mentioned on 28 July. For this purpose, I intend to focus initially only on the first module of part 1, to which I've just referred. That's to say the relationship between the press and the public. At the moment, I have three such seminars in mind, and in each case their purpose is very different to the teaching sessions. They will deal with broad public policy issues, and provide an opportunity for experts to make their thinking available to the Inquiry in a collusive way. Because what I want is to invite experts to present papers to spark debate which will inform me, the assessors and, I hope additionally, the public.

    Without presently seeking to draft the questions, the first is likely to concern the competitive pressures on journalists, or what might be described as the market economics of the mainstream news media.

    There has been some criticism of the fact that none of the assessors has tabloid experience, and I intend that this seminar should make good any deficiency in knowledge or understanding of the pressures facing the tabloid press, not least following the growth of social media and the internet.

    I would also wish to deal with issues such as the structures in place that provide oversight to the means whereby stories are obtained, and a check on the legality and ethical propriety of the way in which that story has been obtained. In that regard, the extent to which money changes hands and the oversight of such payments is also highly material.

    The second such seminar is likely to be concerned with press ethics and the law, or, to put the same point another way, what is the balance between press freedom and the rights of privacy, and what is the role of the law or regulation in maintaining standards on the one hand and defending the essential freedom of the press on the other.

    Are ethical principles common to all, or are there differences? To what extent should journalists or their editors be held accountable for their decisions about what is perceived to be in the public interest?

    The third seminar will cover regulatory structures and examine the advantages and disadvantages of different regulatory approaches, including self-regulation. The issue extends to consideration of what a different system might look like, whether it could provide a reasonable system of remedies for those whose rights have been impugned or those who wish to assert that their rights have been impugned. It will obviously include the risks of a consequential chilling effect on the press; who should take the decision as to the balance to be struck between competing public interests, and to whom are such people accountable.

    So that describes or sketches out my present view of the seminars, which I hope will again be open to the public and all concerned with the Inquiry, and will generate public debate.

    Again, subject to argument, I'm minded to seek to use them to encourage not only interested professional parties but also members of the public to provide the Inquiry with evidence of their views, and I intend to look for ways in which I might achieve that end. It's only after these seminars, when we have seen what the present position is and seen the views as to what the future might look like, that we will then be ready to take evidence and seek to provide the narrative both for the thrust of what has been happening but also for the wider recommendations that I have to make.

    Furthermore, after the evidence has been concluded, it's probable that I'll seek to embark upon a further series of seminars to gather together the various strings that have been floated in the preceding weeks and months.

    Either immediately following this work or potentially concurrently with it, I shall embark on a similar series of exercises in relation to the relationship between the press and the police, and in relation to the press and the political class. At this stage I don't provide further detail as to those seminars.

    The reason I have gone into such detail in respect of the press and the public first of all is because it's where I intend to start, but it's also to underline not only that certain applicants for core participant status may well be focusing on the wrong module and need only make application for part of the Inquiry, but also to make the point that no-one should be applying for this status on the basis that otherwise their point of view will not be heard.

    In at least one inquiry recently conducted, expert evidence was provided by those with strong views on the issues, and some such persons were also allowed to submit written representations to the inquiry at its conclusion, which the chairman made it clear he would consider without obviously being bound by them. I am prepared to consider a similar approach for interest groups in this case.

    So with that rather long run-up to the wicket, I turn to the question of core participation.

    At this stage I am concerned with core participants for the first module, the press and the public. A decision in favour of such status does not necessarily mean that a party so designated will remain a core participant throughout the Inquiry. Rule 5.3(b) of the Inquiry Rules 2006 specifically provides that a person shall cease to be a core participant on a specific date that I specify.

    Similarly, a decision not to award core participant status does not preclude a further application at a later stage of the Inquiry.

    As to who should be a core participant, provided such person consents I need only refer to Rule 5.2 of the Inquiry Rules, which does not provide me with an exhaustive list of what I might take into account when making the decision, but does require me in particular to consider whether the person played or may have played a direct and significant role in relation to the matters to which the Inquiry relates, whether the person has a significant interest in an important aspect of the matters to which the Inquiry relates, or the person may be subject to explicit or significant criticism during the Inquiry proceedings or in the report or in any interim report.

    As to this last feature, I remind everyone that my remit in part 1 of the Inquiry is different to that in part 2, which must follow any prosecution and which is more concerned with who did what to whom and who knew about it, rather than the wider issues to which I have referred.

    It's clear from some of the material that has been submitted to the Inquiry that it's believed that core participant status will provide rights to documents, to making opening and closing submissions which, as to closing submissions, I have dealt with, and the right to cross-examine witnesses.

    As to documents, the Rules do not specifically provide for disclosure of documents to core participants, and I know of no suggestion they have an absolute right to see all the documents that the Inquiry proposes to use, although fairness is likely to require such disclosure both to core participants and affected witnesses and their representatives.

    In any event, the majority of documents will be placed in the public forum. I intend, as I have always made clear, that this Inquiry should be as transparent as it is possible to make it.

    Finally, in relation to Rule 10 of the Inquiry Rules, it is clear that subject to exceptions, any witness giving oral evidence will only be questioned by counsel to the Inquiry. Rule 10, subsection 2, permits me to direct that the legal representative of any witness may be permitted to ask the witness questions, and Rules 10.3 and 4 also gives me discretion to allow core participants or other legal representatives to cross-examine relevant witnesses.

    Again, I will hear submissions on this topic, probably at a subsequent preliminary hearing, but given the pressure on the Inquiry I may well require these issues to be raised with counsel to the Inquiry, who will then be able to conduct such cross-examination as he believes is appropriate, and at the very least restrict other cross-examination. The process is, after all, inquisitorial.

    What I have been trying to say, therefore, is that there is no bright line between core participants and others affected by the Inquiry.

    Before hearing representations, however, I ought to say one other thing about the subject of costs. I am aware that the ministers responsible for this Inquiry intend to give directions in the form of a determination under Section 40, subsection 4 of the Inquiries Act 2005. Until I have received those directions I don't intend to make any order for funding, although I do underline that Rule 21 of the Rules mandates that I must take into account the financial resources of any applicant, and if any applications for funding are to be made, I shall require full details so as to ensure that hard-pressed public funds are being deployed only in accordance with the law, and the proper exercise of my discretion.

    I anticipate that the Solicitor to the Inquiry will issue a protocol dealing with this issue very shortly.

    I will make a decision about core participation within the course of the next few days, but intend to thereafter invite submissions as to funding requests within seven days of that designation.

    There will, as I have intimated, be a further hearing before the end of the month to deal with this and some of the matters to which I have referred this morning.

    So with those rather lengthy introductory remarks, I am now very interested to hear from others, and more specifically from those who wish in the light of what I have said to pursue applications for core participant status.

  • Sir, my name is Garnham, I represent the Metropolitan Police Authority -- sorry, the Police Service. My friend represents the Authority.

    Sir, I wonder if you might consider giving us a few moments to take instructions in the light of the opening remarks you have made? I for one would be glad of that opportunity before making my submissions to you.

  • I think that's extremely sensible, and I should have suggested it myself. I shall rise for a few minutes, and doubtless an opinion will be formed when everybody is ready.

  • (A short break)

  • Right. Well, I have got a list of potential, so I'll start at the top and work through it.

    Mr Sherborne?

  • My Lord, yes. Can I begin by introducing myself and those I represent. My Lord, I am here on behalf of two different groups of individuals. The first is a group of high profile individuals whose experiences of media reporting have been a matter which the courts have already dealt with.

    They are the McCanns, Gerry and Kate; Christopher Jefferies, the man who was wrongly vilified by the press over the murder of Joanna Yeates; and Max Mosley, whose private life was shattered by the late News of the World. Notorious cases which stick in the minds of all of us, I am sure.

    As I'll explain shortly, these applicants wish to apply for core participant status this morning. I suspect that little needs to be said about why, in my submission, they plainly satisfy the criteria that your Lordship indicated under paragraph 5.2 of the Inquiry Rules.

    The second group of individuals I represent, which numbers potentially over 100, are the victims of the illegal interception of private voicemail messages, or phone hacking as it has now been termed.

    Most of them have already issued proceedings against News Group Newspapers and other newspapers, but some are potential claimants. As your Lordship is aware, there is a substantial number of claims, I think now in the region of 40, which are currently before Mr Justice Vos in the Chancery Division, and there is a trial in relation to the general issues, issues which are common to all those actions, as well as several specific lead cases, as they are called, in January of next year.

    I have heard what your Lordship said earlier, both about the scope of the first module of part 1 of the Inquiry, and various specific matters which were concerns that were raised on behalf of my clients in correspondence with your Lordship's team.

    In that correspondence your Lordship did indicate that he would be assisted by the phone hacking victims and their experiences in part 1 of the Inquiry, even though part 2 of the Inquiry, as I understand it, will specifically deal with phone hacking.

    It is for that reason that I am here for some of my clients, although it is right to say that there is a crossover, there are individuals who can assist not just in relation to their experience of phone hacking but more generally with the press. Examples of those who, subject to the concerns that I am going to deal with in a minute, would wish to be core participants as well, for example, Sienna Miller and Hugh Grant.

    As your Lordship will appreciate it would be a lengthy exercise for me to name every single one of what I might call the second class of phone hacking victims. The Inquiry is aware of their identities. They have been listed, as your Lordship will know, in a series of letters which have been provided.

  • Yes. One of them is listed under anonymised initials.

  • Yes, my Lord, that is an individual called HJK. That individual has been anonymised in the civil litigation. That name could be provided to your Lordship in due course but, for reasons which I suspect are obvious, I am not going to name that individual in court.

  • No. What will be important, however, is that we do know the names of every person for whom you appear, for two reasons. First of all, so that we know who are in fact core participants, and secondly, so that the essential assessment can be made should any application be made for funding, because the Act requires me, the Rules require me to have regard to resources and the means of the proposed participants.

    But I am perfectly content to adopt a practice of considering an application to retain anonymity. In the extremely unlikely event that I took a different view then I would alert you or those who instruct you and then a decision could be made as to whether they wish to remain potentially core participants, so that in other words their anonymity would be preserved even if I was concerned about that.

    But my immediate reaction is that I am not concerned, although I will need to know who they are, and details, so that I can make appropriate decisions in the event of applications being made.

  • I am grateful for that indication. As I understand it, there is only one individual who seeks to retain anonymity at this stage. The reason I don't name all of my clients is, your Lordship appreciates, it would take rather a lot of time since they number potentially over 100.

  • Yes, I don't ask you to do it and make everybody listen, but I will want at some stage a definitive list.

  • My Lord, yes.

    Can I explain the basis on which I am here, so your Lordship appreciates --

  • Yes, that is probably valuable.

  • Perhaps I can ask your Lordship's view on that when I am finished.

    I am here today mainly instructed by Collyer Bristow who, your Lordship knows, have since the outset sought to represent these phone hacking victims as a collective, which is one way of describing it. They are victims who brought claims in the Chancery Division or who are potentially claimants. And there is a claimant group, Miss Tamsin Allen of Bindmans is the co-ordinator and she is here today in that capacity, as well as an instructing solicitor in relation to a number of individuals who do wish also to be named as core participants, and I will list those.

    I am not going to, as I say, identify each and every client, but can I just give your Lordship an idea of the scope and interest of these parties as that is obviously a matter that concerns the Inquiry.

    They fall into two categories, and although there are two categories they share two overriding features. The first is, and can I be very clear about this, a desire to assist the Inquiry as much as possible. They obviously have nothing to gain financially from doing so but they realise it's a matter, as your Lordship said, of public interest, real public interest, to ensure that lessons are learned from what they have experienced at the hands of the media and that others won't suffer the same treatment in the future.

    They include all manner of people, from actors and actresses whose names have already been associated with the phone hacking litigation: Sienna Miller, Jude Law, Hugh Grant, sportsmen and celebrities such as Ulrika Jonsson, Abi Titmuss, politicians such as John Prescott, Tessa Jowell, Simon Hughes, Mark Oaten, and other notable figures; but they also include well-known victims of crime and their families, ordinary people who are thrown into the media spotlight as a result of some awful event; some who became targets as well, not because who they are but who they knew, agents such as Sky Andrew or personal secretaries like Joan Hammell.

    So whilst in some ways it is a rather diverse list of individuals, and your Lordship's team has had a list from the various solicitors who they have instructed, they have all united under one cause, and that is in relation to the News Group actions which have been brought, as I said, in the Chancery Division.

    Having explained the identity of the group and the scope there are, in my submission, effectively two categories they fall into.

    One, there are those who wish to apply this morning to be core participants, and the second category are those who, in the light of the assurances which your Lordship has already given, and in response to the further concerns which I intend to raise in a moment, wish to have a short amount of time to discuss with their respective lawyers and solicitors whether or not they wish to apply to be core participants as well.

  • As I say, category 1 is a relatively small number of individuals, and I will name them for the purposes of the record, but category 2 is a very vast number of individuals.

    The concerns your Lordship will have seen from correspondence we have raised, but in order that they are heard in public, can I raise them very briefly. Your Lordship has touched upon them in the opening statement.

    The first concern, and it's one shared not only by the second category but also the first category of individuals I have mentioned, is a concern to ensure that the very material which was unlawfully obtained from them through accessing their voicemails illegally does not become public through this Inquiry.

    For this reason your Lordship will know that there are strict confidentiality provisions in the civil litigation, which I'll come back to in a moment.

    Now, your Lordship is obviously very familiar with the Inquiries Act as well as the Rules which permit restriction orders to cater for these very type of concerns.

  • There is no question of my giving the oxygen of publicity to matters which should not be in the public domain at all, and I will consider appropriate orders to protect the privacy of those whose privacy has been even arguably invaded. It's not for me to decide.

    Of course the value of the victims, if I use that word without making a decision as to it, is that they do provide a very important part of the narrative, of the picture which has to be considered in the context of the public interest.

  • My Lord, yes. You will appreciate that those who are involved in the civil litigation; as I say, I represent those who are also not involved and indeed are not phone hacking victims, they are victims of media misreporting, to put it neutrally. But in terms of the civil claimants, they are keen to ensure that they have protection which is at least consistent with the protection that's already been put in place by Mr Justice Vos in the Chancery Division. I raise that so your Lordship is aware of those concerns.

  • I would be keen similarly to ensure that they have no less protection, but equally I will want to see the material, and one of the issues that will have to be decided quite soon is whether there is really an issue as to whether I should see it, given that I do make appropriate Section 19, I think it is, orders.

  • My Lord, yes. I'll come back to it in a moment, the Section 21 notices, which I will deal with very briefly.

    The second concern is again the matter your Lordship has raised, and that is the prospect, which I understand from what your Lordship said earlier is now an unlikely one, which is that my clients might be permitted to be cross-examined by the media and media organisations. Your Lordship will appreciate this is not civil litigation, my clients are not here out of financial gain but to serve the public good, and in my submission it would be extremely unfair for them, and inappropriate, to be cross-examined by media organisations.

  • Well, you have heard what I have said.

  • I have, and I raise those concerns so that your Lordship can hear them in open court.

  • That's fine. Or open inquiry, I am not sure whether court is right, but there it is.

  • I'll drop the use of the word court, my Lord.

    The final concern relates to legal representation. I think your Lordship has already dealt with that in his opening statement, and therefore I am not going to say anything more about it.

    Can I then turn briefly to the Section 21 notices?

  • No, I think we will come back to that, if that's all right.

  • Then I will come back to that indeed.

    Can I then simply identify those within category 1, namely those who are at this stage ready to make an application for core participant status?

  • And leave category 2 individuals for the moment out of the account.

  • Those who wish to apply are, firstly, there are a number of politicians, Chris Bryant MP -- the following individuals are all, as your Lordship will appreciate, victims we say of phone hacking.

  • Some of them have already brought claims, some are potentially claimants in that litigation.

    There is Chris Bryant, Tessa Jowell, Denis MacShane and John Prescott. Then there are other notable individuals, Brian Paddick, whose identity is obviously a matter of public record, Joan Smith, journalist and Human Rights activist, Chris Shipman, the son of Harold Shipman, and Tom Rowland, freelance journalist, all of whom we say are victims of phone hacking.

    There is the other individual your Lordship referred to, who is termed HJK in the civil litigation.

    Then there are two lawyers who have been, as your Lordship may have seen from recent press reports, we say specifically targeted in relation to their work in the civil litigation and can assist on matters more generally to do with the media, and that is Mark Lewis of Taylor Hampton and Mark Thomson of Atkins Thomson.

  • Then finally in terms of those who are ready today to apply, there are the McCanns, Chris Jefferies and Max Mosley.

  • Can I take a moment to ensure that I have named all those who are ready at this stage to apply for core participant status? (Pause)

    Unless your Lordship wished me to develop it any further I was not going to deal with why, in my submission, they fall within paragraph 5.2(a) or (b) since I hope that is self-evident.

  • My Lord, that is in terms of what I wish to say, that covers everything but the Section 21 notices.

  • I think we will come back to the Section 21 notices later. Let's deal with all the applications for core participant status first.

  • My Lord, yes. Can I simply then say a few words about category 2. In terms of timing, I wonder whether your Lordship would permit a period of time in which those who I have named under category 2 and those who I have not named can have an opportunity to take advice?

  • And then to make an application if necessary at a hearing, I won't use the word court again, or whether they could apply in writing.

  • They can apply in writing. There is an issue that will have to be addressed because I notice that there are at least two other members of the Bar here for other persons who will put themselves in the category of victims, because there is going to have to be a consideration of joint representation. I am sure you are aware of the provisions.

  • My Lord, yes. In relation to what I might call the hacking clients, or the hacking victims, those who brought litigation, those who are potentially bringing litigation and those who have not brought any litigation or don't intend to but are victims nonetheless, it is hoped that there may be one group instructed to represent the entire class.

    I am aware that there is at least one other counsel here who represents one or two of the hacking claimants, or perhaps more of the hacking claimants, but certainly as far as my instructing solicitors are concerned, and I believe the five firms of solicitors who have instructed Collyer Bristow, and that represents I think somewhere in the region of 90 per cent, maybe 80 to 90 per cent of the victims of the phone hacking litigation, then I would hope that it could be dealt with through that route, namely Collyer Bristow representing all of the phone hacking victims as a class for reasons obviously of practicality, efficiency and funding.

  • I will have to consider in relation to anybody else whether their interests in the outcome of the Inquiry are similar, the facts they're likely to rely on in the course of the Inquiry are similar, and whether it's fair for them to be jointly represented, because then there is the question of whether an agreement as to representation is forthcoming or I have to make a ruling.

  • My Lord, yes, under paragraph 7.

  • Unless I can assist any further.

  • No, thank you very much indeed.

  • I am very grateful, my Lord.

  • Let's deal with the other victims first, if there is anybody else here.

  • My Lord, I am here on behalf of four individuals instructed by three firms of solicitors. First, Mr Stephen Coogan, the well known comedian and actor, instructed through Schillings; secondly, Mr Paul Gascoigne, the well known former professional footballer, instructed through Steel & Shamash; thirdly, Mr David Mills, a corporate lawyer and married to a well known Member of Parliament, also instructed through Steel & Shamash; and fourthly, Mr George Galloway, the well known politician and former Member of Parliament instructed through Farooq Bawja & Co.

    All of my clients, my Lord, claim to have been victims of voicemail interception at the hands of the News of the World, but all of them have, throughout their lives, been the subject of varying degrees of press coverage, press intrusion, and to that extent they feel they would have an input to both part 1 and part 2 of the Inquiry.

    They all wish to do their public duty, as they see it, and assist with the Inquiry. However, in the light of what my Lord has said this morning, and the guidelines as to the other ways in which they might participate, I would invite my Lord to give them an opportunity to take advice, in the light of what's been said, and essentially stand over their application as to whether they should be core participants, rather than move that application today.

  • Well, there would have to be a consideration, if they applied, of Rule 7 of the 2006 Rules.

  • Because it doesn't strike me that there is any sufficient dissimilarity as to suggest that there should be any more than one team. Because in one sense the victims are central, and I put that word in inverted commas for the purposes of this morning, to what is being undertaken, but in another they are outside of it, in other words they are not involved in the process of regulation, they are not involved in the press.

    I believe they are an important part of the Inquiry and I welcome their involvement and their assistance, but I think there is only one group.

  • My Lord, I am grateful for that guidance. Their concern, if I could put it this way, is to ensure that they are not shoehorned into one group, such as to say that there is a victim submission. And there is no reason to suppose, for example, that the suggestions or the input as to how things might be run from Mr Coogan would be for all purposes exactly the same as those of Mr Galloway. Whether they can be dealt with by submissions from a single set of legal representatives remains to be seen. That's simply the point that I was --

  • I'd be very surprised if they couldn't. There will be nuance, of course there will, because each person will have been affected slightly differently, and many might have slightly different views. But do you know, I think we are probably grown up enough to be able to cope with that.

  • My Lord, that is their point. They wish to make sure that their voice is properly heard and properly represented.

  • I understand that. Right, thank you.

    Is there anybody else here that falls into that category? All right.

    I think, Mr Garnham, as you were the one that suggested there was a break, you are entitled to go next.

  • Thank you, sir.

    Together with Miss Christina Michalos I represent the Metropolitan Police and its Acting Commissioner, Mr Tim Goodwin.

  • I think his name is Godwin, actually. I am pretty sure of it.

  • I'm so sorry. I think that means that I have managed to get the names of both my clients, the individual and the corporation, wrong in the space of one two-minute submission.

  • Very well. Doubtless it will get better over time, Mr Garnham.

  • Whatever they're called, they apply for core participant status for all four elements of stage 1, sir.

    Am I right, sir, to be calling you sir rather than my Lord?

  • Then I'll continue to do so.

  • Anything provided it's polite.

  • I will also try and manage that, sir.

    The Met Police have played, sir, and continue to play a central role in the phone hacking affair. They have been the subject of both praise and criticism for their role. You will be aware, sir, of the background of their involvement, and I don't repeat that here. The Metropolitan Police are keen to assist the Inquiry in all aspects of its work, and in that regard I make the application in respect of all four elements to your part 1.

    As to those in particular, I make these brief submissions: the police have an important place in the relationship between press and public. The police frequently make use of the press in the course of their investigations as a means of engaging the assistance of the public. They have, we would submit, an obvious interest in the proper regulation and the conduct of that relationship.

    As to the second element, the Metropolitan Police play a clear role in the relationship between press and police. It's an aspect of your inquiry which may lead to criticism of the police and of the Met, and our interest as a result in that aspect of the Inquiry is, we would respectfully submit, obvious.

    As to the third element, the press and politicians, recent events in the phone hacking saga demonstrate the role or at least the potential role of police and especially the Met in the relationship between press and politicians. We say that the Met Police have played a significant role in that relationship in the past and are almost inevitably going to play such a role in the future that we have a sufficient interest within the words of paragraph 5 of the Rules, and that it would be right for us to be core participants thereto.

    Your fourth stage is the recommendations falling out of those, and for the same reasons we would invite you to say that we should be core participants there as well.

    In those circumstances, I ask for core participant status for the whole of your work.

  • Thank you very much, Mr Garnham, I understand.

  • Sir, I represent the Metropolitan Police Authority. My name is Phillips, I am instructed by Eversheds. The Authority is the regulator of the Metropolitan Police Service, it's a statutory body and it exists to ensure that there is an effective, efficient and accountable police service in London.

    Now, sir, what you have said this morning has cast a great deal of light, as far as we are concerned, on the way in which you intend to proceed. So what I am about to do in this submission is to enact the independence of the regulator from the regulated, the police service. I am not going to be making an application for core participant status. As I understood what you said, you were only going to consider today applications in relation to the first module of part 1.

  • In due course the regulator of the Metropolitan Police will, we believe, have a genuine interest in part 2, the relationship between the press and the police. If one looks at the terms of reference in part 1, there are essentially regulatory issues there, and I expect us to make such an application as and when that time arrives.

  • When you say part 2, do you mean module 2?

  • I have had to be rather careful.

  • As a matter of fact, sir, we also expect to seek that status for part 2 as and when it arrives.

  • Sir, so far as today and the first stage, module 1, part 1, is concerned, may I simply say this: we have listened very carefully to what your Lordship has said, in particular about there not being a bright line between core participant status and the position of those who have a genuine interest in the Inquiry.

    I hope you will take it from me that we have such a genuine interest, even now, at this stage. We are here, we are ready to assist, if that would help the Inquiry, with documentation, with evidence, whatever other form of help the Inquiry would like.

    But for the moment, sir, we press no application. As I say, I expect you will hear from us in that regard when it comes to module 2 of part 1.

  • I understand that. Mr Phillips, let me make it abundantly clear that if the Metropolitan Police Authority feel, even though they may not have been asked for specific evidence, that they do have evidence that touches upon part 1 that they would like to submit through some witness, then they are extremely welcome to do so.

  • Thank you very much.

  • I am open to all the assistance that I can gather from whomsoever in this room is able to assist me.

  • Sir, I represent Mr Yates.

    In light of the opening remarks that you have made this morning, I adopt the same position on Mr Yates' behalf, namely that he will reserve his position so far as the second module to part 1 is concerned.

  • And in due course in all likelihood we will make an application in relation to part 2.

  • I reserve his position also in relation to module 2 of part 1.

  • Yes. I understand that, thank you. Thank you very much indeed.

  • My name is Rhodri Davies, I am instructed by Linklaters on behalf of a company called NI Group Limited, perhaps better known as News International.

  • I am very pleased to hear that, sir.

  • It's not entirely accurate.

  • It confirms the open-mindedness of the Inquiry.

  • We have listened very carefully to what you said about the approach of the Inquiry, and on behalf of News International we consider that we should proceed with our application to be a core participant.

    That application is made on behalf of NI Group Limited, which is the precise name of the company. The NI of course stands for News International, and until 31 May this year it was in fact called News International Limited, and it may be easier to call it that.

    It is the company which owns News Group Newspapers Limited, which publishes the Sun and which used to publish the News of the World, and it also owns Times Newspapers Limited which publishes The Times and The Sunday Times.

    So News International is the point at which the ownership of those four newspapers comes together. It is also an active company in its own right, it's not just a paper link in the corporate chain.

    Now, all four of those newspapers are of course of great importance to the Inquiry, and the Inquiry is of great importance to them. But what we are proposing is that we will make one application on behalf of NI Group Limited to be a core participant, and that by doing that we will avoid the necessity for any application on behalf of the lower companies or the individual titles.

    So we hope that that will assist the Inquiry to obtain the focus which you referred to this morning, and will indeed be in conformity with Rule 7 of the Inquiry Rules.

    That single point of focus may have to accommodate a diversity of opinions and evidence but we will try and keep it through one channel.

  • Yes, I understand the potential issues because I can readily recognise that those who are responsible for the editorship of The Times and The Sunday Times may have a slightly different view, from their broadsheet perspective, to those who operate the tabloids. And I can't believe that we can't cope with that within the elasticity of approach that I intend to try to adopt.

  • That's most helpful, sir, and that's what we are trying to do.

    What I should make clear is that I am making this application on behalf of the corporate person, I am not making the application on behalf of any of the individuals who are either currently or have been in the past employed by News International or the papers.

    It may be, it probably will be, that some or many of them will give evidence to the Inquiry at some stage. It may well be that we, the News International team, will represent most of them. But there may be some who either want or need their own representation, and I don't wish to say anything which prejudices that in any way. That's a matter for them.

  • So my application is for NI Group Limited. So far as the justification of that application is concerned, I think I can be fairly brief.

  • I think you can be extremely brief.

  • Yes. I was not going to go through the Rules, but you know, sir, that we are specifically referred to throughout stage 2 of the Inquiry, and of course we have to recognise that although we are not specifically referred to in stage 1, the backdrop to stage 1 and the impetus for this Inquiry derives very largely from events concerning the News of the World.

  • Yes, largely but not entirely. Because if one goes to the 2006 Information Commissioner's report, there are a large number of other titles that are at least alleged to have been involved in behaviour which is at least potentially the subject of the Inquiry.

  • Yes. I'm by no means seeking to concentrate attention entirely on us, but nonetheless we can't escape the fact that there will be a good deal of attention on us. And that relates not only to part 2 but also to the narrative which you have referred to this morning, which is the backdrop to part 1.

    Of course in relation to part 1, as the continuing publishers of three very major newspapers, we have a considerable interest in the future regulation of the press, in relation to the police, in relation to, and all the matters upon which the Inquiry will be making recommendations.

  • Mr Davies, although I will be reserving the decision to provide something in writing, you are pushing at an entirely open door.

  • In that case I will stop pushing and sit down.

  • Thank you very much.

    Mr Chawla.

  • Sir, I am Mukul Chawla, I am representing Mrs Rebekah Brooks, instructed by Kingsley Napsley.

    I intend to be very brief, but can I just set out her career history so that you have that, sir.

    Mrs Brooks was first employed by the News of the World in 1989, before becoming a features writer, and then deputy editor of that newspaper in 1995. She served in that capacity until 1998. She was then appointed deputy editor of the Sun newspaper, becoming editor of the News of the World in 2000. She then became editor of the Sun in 2003 in which capacity she served until 2009. She was appointed in 2009 as chief executive of News International Limited, as it was then known, and she resigned from that post on 15 July 2011.

    It is public knowledge that she was arrested on 17 July 2011, and it is also public knowledge that she has in the past given evidence, both oral and written, to various select committees of Parliament.

  • That is the basis upon which the application is made.

  • The first part of the Inquiry is a much more general analysis, and specific or individual criticism is unlikely to flow from the first part of the Inquiry, not least because of the ongoing investigation.

    To what extent is your client in a different position, bearing that in mind, from others in editorial positions on tabloid newspapers?

  • To no real extent. In terms of what she can provide, she is in a position to provide information which may be similar not necessarily in content but in subject matter terms to a number of different editors. But in terms of how significant that information is, that obviously is a matter of perhaps interpretation.

  • Well, I understand that, but what I am really getting at is that, as a witness, she would doubtless be entitled and will have the right to legal representation. I am just wondering whether, in her case, it goes beyond the need for that representation -- which I recognise -- into core participant status for this part of the Inquiry.

  • This part of the Inquiry is not as acute as subsequent parts.

  • I recognise that entirely, which is why I have been rather careful to delineate it.

  • I understand that.

  • Therefore I do need to know whether you are making an application to be a core participant on this module of this Inquiry.

  • So far as the relationship between the press and the public?

  • I don't press for that at this stage.

  • Well, I appreciate that what I have said today might have come a little bit out of the left field. I think that's an entirely appropriate stance, if I might say so. But obviously you will have the chance to reflect upon it during the course of the next day or so, and if you take a different line, then provided you tell me very quickly, or tell the appropriate Secretariat, then I'll consider it.

    But speaking for myself, my immediate reaction is the one that we have just shared.

  • I understand.

    Would you just give me a moment?

  • Thank you very much, sir.

  • Thank you very much indeed, Mr Chawla.

  • Richard Christie, appearing on behalf of William Jonathan Rees, who is the only private investigator on the list that is before your Lordship today.

    The position so far as we are concerned, looking at the information that was provided to us this morning, is that it seems to us, certainly in relation to module 1, where you have said that matters will be addressed not just of phone hacking but allegedly illegal and unethical behaviour --

  • -- that our client would be well served as a core participant at that stage.

  • My Lord, because we respectfully submit that it is likely, looking at 5.2(c), that there may well be suggestion that implicates him or makes significant criticism of him, and therefore we respectfully submit that it would be right that he be a core participant.

  • Why do you think I am going to descend to that sort of level of -- I think the current buzz word is -- granularity?

  • Well, I suppose we don't know, we simply don't know what is going to be raised. But what you have raised this morning is the prospect of illegal and unethical behaviour --

  • Yes, but what I am thinking of is finding out what's been going on and whether it's appropriately being addressed through regulation or otherwise. I won't be looking at who did what to whom, because if I were to do that then I might never finish.

  • Well, we appreciate that.

  • I think your solicitors wrote a letter which deals with his personal circumstances.

  • But if I were to start investigating individual cases, I will rival Lord Saville.

  • We accept that proposition.

    There is one other aspect of it, of course, which we respectfully submit is particularly important to his case, namely that his case -- and I use that in its widest sense -- has featured on Panorama and on the Radio 4 Report and in a large number of national newspapers. It is our contention that much of the material that has been used for those programmes has come from unused material in criminal cases.

    Now, under Section 17 of the CPIA, Criminal Procedural Investigations Act of 1996, if he were to disseminate that material, having received it in the course of a prosecution of him, he would be liable to a maximum sentence of two years' imprisonment.

  • Yes, but now you are not talking about where he may be criticised, you are talking about his wish to criticise the police or somebody else.

  • My Lord, with respect, as I understood it, I thought that was something you would be wanting to enquire about, namely the press and the public. Potentially, under the regulatory scheme that we have at the moment, an individual accused could be held responsible but the press are not responsible --

  • I entirely agree, I entirely agree. And again, I mean really it's the same point that I was making with Mr Mukul Chawla, that I have no doubt, I think Mr Rees wasn't the subject of a Section 21 request but was asked whether he wished to assist.

  • My understanding is that he was the subject of that but I may be misinformed.

  • I don't think so, because the letter from your own solicitors asked whether he would be prepared to assist the Inquiry. Lots of people weren't merely asked to assist the Inquiry, they were told that they were going to. So I think you will find that I am correct.

    But that's not the point. I have no doubt at all that Mr Rees has potentially valuable information, both in relation to -- or possibly in relation to what he has done as a private investigator, I don't know, but also potentially in relation to this feature that you are elaborating upon. But that's rather different, and for that purpose he will doubtless need some legal advice, but there is no point in flooding me with 50,000 pages worth of documents, because that takes this Inquiry into a different area.

    For that purpose doubtless he will require some legal advice if he is prepared to make a statement. But that's different from being a core participant. I am not ruling on it, I am merely testing it.

  • No, my Lord, I understand. As I say our principal concern, even allowing for what your Lordship has said, if you are going to be exploring illegal and unethical behaviour, given the allegations that have been made, and you are also going to be exploring the ethical extent to which money has changed hands, given what has appeared already in the press and has also been raised in Parliament by a number of MPs, including I understand the leader of the Opposition, it seems to us that there is going to come a point in part 1, module 1, where Rule 5.2(c) is likely to be engaged as far as Mr Rees is concerned, and we wish to have him as a core participant because of that.

    But if my Lord thinks that it is unlikely that we are going to be descending into that sort of particularity, and that if he came as a witness he would be best served by legal representation at that stage, then of course we would have to bow to how your Lordship sees the Inquiry proceeding.

  • In one sense you are right because I'll make a decision and everybody will be stuck with that, subject to anybody who wants to go elsewhere to challenge what I say. But if you are pressing your application, then I understand it, and I will consider it. Thank you.

  • Sir, my name is Dingemans, I am instructed by Rosenblatts on behalf of Northern & Shell, publishers of the Daily Express, Sunday Express, Daily Star and Daily Star Sunday. And it's my application for designation as a core participant in the first module of part 1 of your inquiry.

    The basis of the application is that as publishers of these newspapers, Northern & Shell has a significant interest in important areas of the matters to which the Inquiry relates within Rule 5.2(b).

    Sir, you have set out in detail the scope of module 1. Can I just identify some particular areas of significant interest: press and public relations. We represent part of one side of that relationship. So far as seminars are concerned, comparative pressures on journalists, of course Northern & Shell is the employer of a number of journalists. Press ethics and the law, the interest is obvious. Regulatory structures, Northern & Shell has a particular and indeed in some respects unique approach to that since January of this year.

    So far as taking evidence is concerned, as you know, sir, Northern & Shell, along with many other members of the print media, have been asked to assist and serve notices.

  • In those circumstances we respectfully submit that we fall plainly within the purpose of the designation of core participant status.

    There are, so far as I am aware, no reported decisions about the principles governing the exercise of that discretion, but there are examples of existing practice. We respectfully submit the governing principles of the Inquiries Act is fairness and transparency, and we submit that to discharge those duties the Inquiry should give the media interest that I represent an opportunity to be heard about all the matters engaged in module 1.

    So far as the proper issues of Rule 7 representation is concerned, a joint representation, we do respectfully submit that the interests of Northern & Shell are distinct from other print media organisations, we are a distinct and competing organisation, have different approaches and different business models. We do submit that all the titles that I represent can be properly accommodated within that joint representation, but it would be difficult to envisage further joint representation.

    We do also make this concluding submission: that designating a party as a core participant does not mean that you, sir, will abandon your powers to manage in a proportionate way the participation of any core participant.

  • Mr Dingemans, you are absolutely right about that.

  • I am grateful, my Lord. Those are my submissions.

  • Thank you very much indeed.

  • My Lord, I am David Glen, I appear on behalf of Guardian News and Media Limited. My Lord, I will be relatively brief. I adopt, at least in their generality, much of the submissions made by Mr Dingemans a moment ago.

    Guardian News and Media Limited is the publishing company of the Guardian and the Observer newspapers, obviously very well known in this country. It's also the publisher of the Guardian.co.uk website, a popular website operated by the UK newspaper, and the Guardian Weekly, the international edition of the newspaper.

    My Lord, this application is, as Mr Dingemans was for Northern & Shell, made under Rule 5.2(b) regarding a significant interest in important matters. And in light of your Lordship's guidance on module 1 and the aspects that that is likely to entail, we would say that the Guardian's interest in those areas is central, in both senses of the word, for obvious and self-evident reasons.

    I don't propose to go through those in great detail but simply as to the issues that arise, and also as to the narrative which, as your Lordship has said, he wishes to explore which underpin that.

  • I certainly need to identify a narrative upon which I can build the rather more theoretical aspects of part 1 of this Inquiry.

    Thank you very much indeed.

  • My Lord, my name is Keith Mathieson, I am with the solicitors RPC, and I represent Associated Newspapers Limited which is the publisher, as I am sure you know, of the Daily Mail, the Mail on Sunday and the Mail Online website.

    You should, my Lord, have received from us yesterday a letter in which we told you that we were minded to apply for core participant status.

  • The basis of that letter was that we are a major newspaper publisher, we therefore have a significant interest in the matters to which the Inquiry relates, in particular the future regulation of the industry. Our application for core participant status therefore, in common with the applications by the Express and the Guardian, would be made pursuant to Rule 5.2(b).

    What we said in our letter of yesterday was that we were not in a position to make a formal application for core participant status at this stage. The only reason for that is that a number of key people have been away and, in particular, the editor in chief of the Daily Mail and the Mail on Sunday doesn't return to the office until tomorrow.

  • So you are not making an application today?

  • We are not making an application today but I hope you don't mind hearing from me, my Lord, because I do anticipate that subject to instructions we will be making an application. What I would like to invite you to agree is that we may make that application in writing within the next few days. I anticipate it will be made quite quickly.

  • What do you say about the concurrence of interest? I can see there might be a difference, and I am just thinking the matter out aloud, between a broadsheet and a tabloid approach, and there might be different dynamics and different pressures. But what do you say in relation to the point made by Mr Dingemans that actually it would be difficult to visualise a joint representation between, for example, the Express and the Mail?

  • Well, my Lord, I have no instructions on the issue of joint representation.

  • It would seem to me that there would be some strange bedfellows if you were to order --

  • It may be, my Lord, but at the moment my client has chosen to seek separate representation from other groups, that is something to which obviously you may wish to return and we will make submissions at that stage.

  • I understand that, and I am conscious of course that neither of these organisations will be seeking to, I anticipate neither will be seeking to do so on public funds, and therefore one has to have regard, because one has to have regard to that overall issue.

    Do you agree with Mr Dingemans that it ought to be possible to organise this in a way that, while allowing each of the newspapers to express their own submission and their own view, does not necessarily add dramatically to the length of the Inquiry?

  • Well, my Lord, really without instructions --

  • I can see the force of that suggestion, but I wouldn't at this stage like to commit my clients to a particular line. I am sorry if that's unhelpful.

  • Well there it is, all right. Thank you very much.

    Anybody else?

  • My Lord, I am Jonathan Heawood, director of English PEN, the writers' association. My Lord, we are representing ourselves.

    We heard your opening remarks and listened to them very carefully about the nature of core participant status, and we are certainly not here to argue for a status which is utterly inappropriate. We believe it is appropriate to at least make the case for this status as an interest group with a strong history of expertise around freedom of expression. If you think that there are other ways in which we can assist the Inquiry, we would of course be delighted to do so.

    I will explain a little bit about what English PEN is. It's the founding centre of an international writers' association which has 144 centres now in over 100 countries. Our members are writers, journalists, publishers, editors and so on around the world. We have 90 years' experience of working with and on behalf of writers whose freedom of expression has been threatened by state or non-state actors, and our case list of imprisoned and persecuted writers features 647 cases for the first half of this year alone.

    We are sadly familiar with the constraints that state regulation places upon individual authors, journalists, editors and publishers, and our work on behalf of these beneficiaries leads us to be very concerned about the impact of changes to the regulatory framework, not only on the British media but on the free press in other parts of the world. Britain is often held up as an exemplary jurisdiction by other regimes; for instance, Turkey has often referred to some of our provisions around seditious libel as a means of justifying its own repressive speech crimes such as Article 301 of the Turkish penal code.

  • I don't think you need be concerned that I am not acutely conscious of the vital importance of an independent free press with a right to express itself.

  • I am very glad to hear that, obviously you have made that very clear in your remarks today and on previous occasions and it's there in the terms of reference of the Inquiry. But I would argue that, as an organisation with real expertise in that area internationally, we have a particular stake in helping the Inquiry to understand some of the dangers that different regulatory frameworks may pose.

  • But I wonder whether that's not achieved -- and this is a question, not a decision -- by you providing us with evidence, with opinions, backed by whatever you want, and potentially then saying "Well, we would like to make, having attended and listened" -- because everything I do, I intend to do in public, save only for the one element I mentioned and it is likely to be streamed onto the web so that you won't even have to be here -- then it may be appropriate for you to make an application to put in some written submissions at the end.

    I just wonder whether that doesn't adequately cope and sufficiently cope with the very important interests that you represent.

  • I hear the point very clearly. I might say that you have also spoken about the need to involve the public in the process and, as a charity representing the public interest in human rights more generally, not merely freedom of expression, I would say we have a particular stake in that process and we are able to bring that public interest to bear.

    There are a couple of other points, if I may, to just make briefly?

  • In this country English PEN has worked with Index on Censorship, from whom I think we will hear in a moment, on a number of campaigns to promote freedom of expression, for instance in relation to religious hatred, the repeal of various "dead letter" laws around blasphemous libel, et cetera, and we are currently working with Index on Censorship and Sense about Science to campaign for reform to the common law of defamation which has led, as I am sure you know, to a draft government bill on this topic.

    We would be very concerned if this Inquiry in any way were to derail the important work which we believe the Government has undertaken in this area and which 55,000 members of the public have supported through an online petition. So again that's another reason why we would like to have a core status in the process.

    Just on that point, we are also very conscious that the regulatory regime, in particular the wider media legal framework, affects not only what you might think of as traditional authors and publishers and newsgroups represented in this room, but also, in today's digital publication era, millions of individual producers and consumers of media. Libel is currently affecting, inadvertently affecting, scientific publishers and scholarly publishers in areas where clearly the law was designed to mitigate some of the dangers of irresponsible journalism.

    So that's another bit of expertise, but I completely take your point that we may bring that expertise to bear in other ways; and you may take the same view about my final point, which is that we are currently working with an advisory committee chaired by Sir Stephen Sedley to look at ways of balancing interests of Article 10 and Article 8 as it relates to libel through the means of --

  • I hope Sir Stephen produces something worthwhile before I have concluded, because I will read it with great interest.

  • We are publishing an interim report on 6 October.

  • Thank you very much. There's a plug. Right.

  • I would just say, to conclude, our experience of working internationally to promote freedom of expression, our understanding of the complex relationship between media law and non-traditional authors and publishers, and our understanding of the resolution of conflicts between Articles 8 and 10 do mean that we would bring considerable strengths to this Inquiry; but I completely take your view that whether that takes the form of core participant status or some other status is, of course, a matter for your decision.

  • Well, there is no doubt that your assistance will be of great value, the question is how it's best ordered, and I take the point. Thank you very much indeed.

  • Sir, John Kampfner, chief executive of Index on Censorship. I will seek not to detain you or the others here unduly. In conjunction with my colleague and a trustee, Mark Stephens of FSI Law, I would like very briefly to submit -- and following on from my colleague Mr Heawood of English PEN -- the reasons why Index seeks to apply for core status specific to areas 2 and 3 of the first part of your Inquiry.

    We submit that in our 40 years of work specifically with news media in this country and around the world we are able -- you spoke, sir, of helping to build a narrative for your part 1 -- of assisting you in that regard.

    We bring specific expertise in the following areas: in the question, as the UK's leading free expression and one of the world's leading free expression organisations, of navigating the different paths between free expression, privacy, navigating a new path in terms of determining public interest, and preventing any otherwise well-meaning legislation or new rules from becoming a chilling effect on press freedom.

    We therefore see our role as helping you and others, notwithstanding the experience of your panel and those you have chosen to assist you in navigating the different courses between Articles 8 and 10.

    As I wrote in April of this year in one of several press articles relating to these vexed issues, free speech is not threatened by good journalistic practice, it is defended by it. So it is with regard to helping you navigate this extremely difficult and tortured path, as an objective but experienced organisation with insight to that, with a significant interest as per part B of your criteria for applying for core status, but as an organisation that is neither regarded as perpetrator or victim in any of the recent phone hacking questions.

    So it is really with regard to our expertise specifically in the navigating of a path between press freedom and high media standards that we respectfully submit specific core status.

  • Just before you sit down, Mr Kampfner, that you can assist us -- in the same way that I made it clear to Mr Heawood, I have absolutely no doubt that you have expertise and information which will prove of enormous value -- I have no doubt. But I do question, without deciding it as yet, whether that requires core participation status, which is those intimately involved in the actual events, rather than the assistance of experts, which was one of the reasons for the seminars that I have spoken about, that it might be of great use for your organisations if not to be involved presenting a paper, to be present, and to provide us then with evidence which would form part of the Inquiry and be able to assist us in that way.

    That's the balance that I have to strike so as to make sure that I keep the Inquiry moving forward but make sure I get all the help from all those who know what they are talking about, to get a result that actually not only meets all the competing requirements of the terms of reference but also does the job in a way that doesn't undermine freedom of expression and the rights of a free press, but equally doesn't impinge adversely and inappropriately on the Article 8 rights of individuals.

    So, in other words, your very natty form of words in your article earlier this year are entirely where I am at, but I just wonder which is the best way that you can assist us.

  • Sir, that is understood and I am very grateful for your remarks.

    Just to clarify, our application is for, as I think you --

  • -- that it would be presumptuous of us to be applying for core status in areas where we do not have a unique expertise --

  • I am sorry, so which are the two areas that you said?

  • If I understood your opening remarks properly, sir, these are areas 2 and 3 of your first module, namely concerning press freedom and determinations of the public interest and also media regulation.

  • Yes. Those are seminars 2 and 3, I think.

  • Within the first module.

  • All right. I understand. Thank you very much.

    Anybody else? Right, well, a number of people have to think about a number of things, and it's only fair to give them the opportunity to do so. It's clear that some of the applications are bound to succeed, others one will have to think about a little bit, and I will take a few days just to do that, and that will also give anybody who wanted the chance to take instructions and allow people to return from holiday to do so.

    Right. Is there anything else on that aspect?

    Now, you wanted to raise something on Section 21. If anybody has now ceased to be interested, then don't consider it necessary to stay on. I am perfectly happy to allow people a natural break and to give the shorthand writer two minutes as well. Three minutes.

  • I am not encouraging anyone to leave.

  • No, I wasn't, I was merely saying that they shouldn't feel obliged to have to stay. I will stay.

  • I don't see anyone rising immediately.

  • I am going to rise and give the shorthand writer three minutes, so I will rise.

  • (A short break)

  • You see, you were wrong. There has been a thinning out of the ranks.

  • It's not a bad turnout.

    My Lord, can I then deal with the Section 21 notices that were sent out to a large number of my clients, I think probably somewhere in the region of 40 of them, in relation to documents arising in the civil litigation?

  • Now, I think it's fair to say that the recipients understand the spirit in which those notices were sent out. Your Lordship's team has made absolutely clear that the formality is very much a creature of timing, if I can put it that way.

    However, as I hope was appreciated from the response to your Lordship's team from the representative of the claimant hacking group, Miss Allen of Bindmans, as well as Mr Thomson of Atkins Thomson, the concern is that my clients feel unable to comply with the notices, and can I emphasise that they are very keen to comply.

  • This is because of the confidentiality provisions in Mr Justice Vos' order.

  • Yes, my Lord. One of them, rather quaintly called the confidentiality club, allows only for highly sensitive material that's been produced either by the Metropolitan Police or from the notes of Mr Mulcaire, and other sources, that that should only be seen by the lawyers who are involved representing the claimants.

  • Now, who is responsible for seeking that order?

  • That order was in effect agreed between the parties at one of the first case management conferences.

  • All right, I understand that.

  • Can I explain why it's there?

  • It doesn't matter. I understand why it might be there, and I understand that for the purposes of the civil litigation it's clearly very important. Equally, I respect the confidentiality of the issues between your clients and News International entirely, and I do not intend to allow the Inquiry to become a vehicle for disseminating material which would otherwise be confidential. That's absolutely not my purpose.

    But it is critically important for me to obtain -- and I have used this word many times through the course of the morning -- a narrative, because the normal course of an inquiry would be that there is an event, a judge is appointed to look at it, he finds the facts, reaches conclusions of fact, and goes on to make recommendations.

    By reason of the ongoing police investigation that can't happen here, because if I trample all over the detailed facts I run the risk of undermining any investigation or potential prosecution, if there is to be one, as to which I make no comment at all, I simply don't know. I am not prejudging anything.

    Therefore I have to proceed, because of the public interest, in a slightly different way, and some may say this slightly puts the cart before the horse, that I have to think about what we ought to be doing before every single fact has been fully unpicked.

    Now, that requires me to have sufficient of a story to build an examination of the very important issues that are thrown up by this Inquiry. I need your help, and I will need the help of everybody who has expressed themselves as concerned, to do that.

    Therefore, what I would say in relation to the documents, because they are there, they are available, you have them, is that I do not believe it ought to be beyond the wit of man for you and for News International to be able to agree that my team can see the documents, subject to orders that I can make, I think it's under Section 19 of the Act, in order to replicate the confidentiality which legitimately you sought at the time of your litigation, not knowing that this was coming up the ladder, but which now I would want to suggest ought to be extended to allow us to provide the story.

    Now, that's not to put in the public domain who did what to whom, because that is absolutely part 2. But it is to provide an account of extent and nature of interference upon which one can build to consider the other features to which I have referred.

  • Yes. Can I say this: we understand entirely your Lordship's reasoning, and we are keen, as I think I said right at the outset, to assist in the process, whether one looks at the cart and the horse together or puts the horse before the cart, or whatever, it doesn't matter. From our perspective we are keen to assist.

    And your Lordship is right, and we suggested this in correspondence, that we believe the pragmatic approach, the most effective way of dealing with this, is for your Lordship's team to apply to Mr Justice Vos to be allowed to be part of the confidentiality club, or to allow us to be released from the obligation. But as it stands, that obligation is in place.

  • Why can't you and News International agree?

  • Because it's not simply, my Lord, between us and News International. It's the Metropolitan Police, it's Mr Mulcaire, it's ...

  • I have the Metropolitan Police here too.

  • Yes, but it's not just the three parties. I would love to say it was simply three organisations and between us we could put our heads together and come up with a solution, and indeed that is probably the solution that we need to reach. But the fact is that there are other parties who are involved in litigation. There is Mr Edmondson, who your Lordship may have heard of, who was a senior news editor of the News of the World at the relevant time. There is Mr Mulcaire, the private detective, who was also a party to those proceedings.

    So there are a number of individuals who are represented in the litigation, all of whom were present at the case management conference, and indeed at all of the case management conferences, and those provisions were agreed and ordered by Mr Justice Vos. Now whether this is something that can be varied by agreement by all the parties, or whether it would be, we say, more effective, particularly given issues of funding, if I can put it delicately in that way, for your Lordship's team, for the Inquiry, to apply to Mr Justice Vos, in my submission that would be the most efficient and cost-effective way of dealing with this.

  • When is there another hearing due?

  • As I understand it, Mr Justice Vos, whether he is physically within the building as we speak, certainly I am told by Mr Reed he is sitting today, but he certainly explained to us just before the long vacation that if it was necessary to make any applications, given the rather changing nature of the phone hacking scandal, if I can put it that way, that if we needed to apply to him during the course of September he would be there to do so.

    Of course there is also the Senior Master Weingarten, who has also been tasked with procedural matters which don't necessarily have to be dealt with, so for example by Mr Justice Vos.

    So if there is agreement between all the parties then it might be able to be dealt with on paper.

    I am told by Mr Reed that Mr Justice Vos is sitting this week and next week. As I say, he said he is available in September to deal with these matters.

  • That's all very possible, but I am a bit concerned that if I ask counsel for the Inquiry, and Mr Jay will speak for himself, to seek to intervene, then he has to issue a summons to intervene, that has to be heard and agreed upon. Then he has to issue a summons to do whatever he wants to do.

    I understand the point.

  • I'm in a difficult position. I represent 80 to 90 per cent of the hacking claimants but I don't represent everyone, so I am sure there are people who, if they were here today, would say "We would like to see an application notice and we would like to understand the scope of what is being asked for."

    That is obviously very different. That is something that would come more effectively, if I can put it that way, from the Inquiry, than it would simply from my speaking to those representing News International. Of course we have Mr Davies here, who is representing the corporate structure in relation to the Inquiry, but there is another team that represent News Group Newspapers, who are the defendants in the hacking claims.

  • Let's see what he has to see and let's see also what Mr Garnham has to say.

    Can you help me on this or not?

  • Not a great deal, sir, because I was not expecting it to be raised. As Mr Sherborne has just said, there is a different team and indeed a different firm of solicitors representing the papers in that litigation.

    I can say that we are very keen to co-operate with this Inquiry. We have two concerns, one is not to breach Mr Justice Vos' order.

  • And the other of course is not to prejudice the investigation which the police are currently carrying on and any prosecutions which arise out of that.

    As we understand it, the Inquiry I think is going to pose a protocol for dealing with documents.

  • And we were hoping that we would be able to agree, if that's the word, or at least indicate that we were happy with that in the fairly near future. I think I can say that in principle, if we can agree that approach with the Inquiry, I think there is unlikely to be any difficulty in News International, if necessary, approaching Mr Justice Vos and saying "Will you relax your order to allow us to comply with it?"

  • But that's as much as I can say now.

  • Thank you.

    I think you are just about to get some instructions.

  • Sir, we don't see any difficulty in documentation being supplied to you and to the parties in the civil proceedings, save only the confidentiality clause in those proceedings, but it would strike us that the obvious way to deal with it is for an application to be made by one of the parties, News International or the claimants in those proceedings, referring to the Section 21 notice they have received from this Inquiry and asking for a relaxation sufficient to accommodate it.

  • That's what I'd rather hoped. And of course if people are represented by different people then I can't bludgeon them today.

  • Sir, with respect, you only need one common representative, and may have that in front of you today who could make such an application. If it turns out there is opposition to it by others not here, then that can be dealt with by Mr Justice Vos.

  • He is bothered about the costs. All right, I understand the point.

    Well, Mr Jay, what's the approach to this? I need to cut the logjam in some way.

  • Yes. Sir, there is the pragmatic solution and then there is a legal analysis.

  • Let's try the first one first, shall we?

  • Yes, well the pragmatic solution I suppose is that someone swiftly makes an order to Mr Justice Vos.

  • Yes, an application to Mr Justice Vos, one assumes on a consensual basis involving everybody we've heard today.

    The legal analysis is: is it necessary? Because there is a distinction between a party's own documents. In relation to the claimants, the Section 21 notice targets only their own documents. And documents which they have received pursuant to another party's disclosure obligations in a civil litigation.

    On the face of the confidentiality directions in Annex C of Mr Justice Vos' order, I say only on the face of it, and obviously one needs to understand the context in which the order was made, and we don't understand the full context, Annex C, page 15 of Mr Justice Vos' order:

    "The following directions apply to future disclosure given in current or future claims."

    Then 1, before receiving any further disclosure of documents in the action solicitors then have to give an undertaking.

    There is a further undertaking in paragraph 2, sir, on page 16 which includes an obligation, for example, under (c):

    "Not to show copies of any disclosed document to any third party."

    The disclosed document is the document the claimant will have received from other parties to the civil litigation. On the face of it, it doesn't appear to cover the claimants' own documents.

  • So in other words, Mr Sherborne's documents, his clients' documents, he can give to us, and News International can give their documents to us. What Mr Sherborne can't do is give News International documents, and what News International can't do is give the claimants documents.

  • On the face of it, and maybe you will hear further submissions about it, that is what these confidentiality directions mean.

  • It's their more natural and ordinary meaning. If it is said that the confidentiality bites more widely, so that there is a sort of club -- which is the analogy used -- which catches a party's own documents, that would be rather a strange result.

    Of course I would add this: disclosure to the Inquiry team doesn't mean that the documents are placed in the public domain. Of course the Inquiry will consider its powers under Section 19, indeed its duties under Section 19 to protect the confidentiality of material, and, sir, you have already indicated that you are fully alive to that.

    So if Mr Sherborne and Mr Davies could assist you further as to the true construction of Annex C of the confidentiality provisions ...

  • There you are. Mr Sherborne, you have seen Annex C before?

  • I can assist. Perhaps I can explain. What has happened in the course of the civil claims is that, as a result either of pre-action disclosure -- Norwich Pharmacal orders or third party applications -- the parties have received disclosure from the Metropolitan Police of the notes that were obtained from Mr Mulcaire when he was arrested. Those documents have been disclosed by the claimants in the proceedings, so they in effect become the claimants' own documents, so they are covered by Annex C.

  • No, no, no, I understand that, and therefore one would have to go to the Metropolitan Police in relation to any document which you have got hold of because somebody else has given them to you.

  • Not only that, rather unusually of course, we have then shared with every other claimant the notes that were provided in relation to each separate claimant. So all of the claimant group have each others' disclosure. So again that forms part of the disclosure and is covered by the confidentiality club.

    So that is why one simply can't say "There is no problem here because you give your own documents", because in this case the claimants' own documents include not just the notes obtained from the police, so disclosure obtained from the police, but also all of the other claimants' documents. That's why we would fall foul of Annex C.

    The other point is: it's not about the public domain. As your Lordship will have noticed from the way in which the annex and the order is framed, it's about disclosure to anyone. There are very strict provisions as to who can and who can't see it, and they are not simply aimed at preventing this material getting into the public domain.

  • Well, it strikes me that it should be not beyond the wit of man to issue a summons before Mr Justice Vos to vary this order insofar as it permits disclosure.

  • Yes, and of course that is the procedure that we suggest in our correspondence. We accept that that is the right way to do it because we are keen to assist. What we can't do is simply stand here and for me to say "Well, it's not covered by those provisions", because it is.

  • I understand that. I am sure that if you were to draft a summons and allow counsel, Mr Jay, to see it, I am sure that we would provide some supportive material. I can't believe Mr Justice Vos would be at all difficult about it. In the meantime, if Mr Garnham alerts the Metropolitan Police, whoever is dealing with it within the police, and Mr Davies alerts News International, the different firm of solicitors and different counsel who are involved in that, and makes it clear that I am getting very aerated about this topic, because I haven't got the time, I need to move on, then I am sure that a very short summons will deal with those applicants who are less concerned about my Inquiry than you all are.

  • My Lord, yes. I hate to raise such delicate matters as funding, but of course your Lordship will appreciate that at the moment we are in -- I am told that funding shouldn't be an issue, for reasons I won't venture.

  • I would have been surprised if it was an issue, given the circumstances, and I have no doubt that Mr Justice Vos will exercise his discretion in due course appropriately.

  • My Lord, yes. I appreciate those sentiments.

  • I think that's what your solicitor had worked out. Yes.

  • Can I raise one matter simply so that I have aired this?

  • It relates to a class of other documents which your Lordship has asked for in the Section 21 notices. It relates to some of my clients but not all of them.

    Your Lordship will appreciate that the specifics of each of the hacking claims are obviously different. In relation to some there is evidence that phone calls were intercepted, voicemail messages were listened to, or numbers were obtained; but in relation to others there is evidence that articles were published based on the information that was illegally obtained.

    In the Section 21 notices your Lordship has asked for the articles which form part of some of those claims. Now, what your Lordship may not appreciate is that Mr Justice Vos has specifically ordered, in relation, for example, to Sienna Miller's claim -- and it relates to others such as Jude Law, Kelly Hoppen, Gavin Henson, Hugh Grant, Jemima Khan, and those where there is evidence that articles have been published based on the material obtained -- that Mr Justice Vos specifically ordered, when he came to give judgment in the Sienna Miller action, that News Group Newspapers was not entitled to re-publish these articles, which are no longer available online or anywhere else, despite the fact that those articles had appeared in the public domain. So that is a sensitivity I ought to raise at this stage.

    As your Lordship has indicated, this is simply a question of documents being provided to the Inquiry team and that those documents should go no further.

    Of course at some stage your Lordship may be asked to rule on Section 19 notices.

  • Can I just raise that, because it is a matter which has concerned some of the clients that I have just mentioned.

  • I understand that and I repeat what I have said, I think, before: I have no intention of allowing this Inquiry to disseminate material, the privacy of which is either established or may be established, and thereby thwart the legitimate claims being made by those involved in civil litigation.

  • I am very grateful for those assurances.

  • Right. Thank you very much indeed. Is there anything else that anybody wishes to raise?

    The position is this: that for ease of organisation the Inquiry is likely to be held in court 73, which is I think one floor down from this, although I will not sit on the bench but probably one lower, further down. The advantage of court 73 is that the desks are all movable, as here, so that we can reorganise it somewhat and make it rather less formal than presently a court is. But I hope that I can reassure everyone that, although I will conduct this Inquiry as an Inquiry with a degree of formality, I am not conducting a trial, and this will not run along the lines of a trial.

    I think there is likely to be a further directions hearing before the end of the month. We will publish the dates of our various teach-ins and seminars. In the meantime I encourage everybody to do what they can to submit the evidence that we have sought as quickly as possible, because I am very keen to get on. I am conscious that I am putting all sorts of people under pressure, and a number of people have said "Ah, well, people are away and therefore it's difficult to get evidence together". If I get evidence in tranches, I can live with that. What I can't live with is nothing for six weeks and then a hundredweight of paper which has to be assembled and amassed and appreciated.

    Anything else?

    I'll provide a decision in writing on the various applications today.

    In relation to funding, and this is particularly so for the victims, it's very difficult for me to see why a Rule 7.4 order isn't going to be made, therefore I would urge you to strive to reach some agreement about representation, and I have no doubt at all that if the Inquiry team can help in any way they will. Ultimately I'll rule on it, but it's important that they do that, and it's important that some consideration be given to the statutory or regulatory requirements to which I must have regard if an application is made for funding, because that would obviously have to be considered on a per person basis, which is why I need to know who everybody is, and it's probably comparatively clear that some people will fall rather more readily into a potential claim for funding than others. But I am not ruling upon it because I have not yet had a determination from the ministers under Section 40, although I am expecting it.

    Thank you all very much for your attendance. Thank you.

  • (The hearing adjourned)