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

  • JUSTIN HUGH WALFORD (sworn).

  • Make yourself comfortable, Mr Walford. First of all, your full name?

  • Under tab 56 the second file, you'll find your witness statement or a copy of it, dated 14 October of last year; is that correct?

  • You've given a statement of truth and your signature and the date?

  • In terms of your current position, you are currently the editorial legal counsel at News Group Newspaper Limited, which publishes the Sun and of course previously and formerly the News of the World, and you are effectively now the legal manager of the Sun; is that correct?

  • It's not strictly correct, because in fact once Tom Crone had left, we had a new legal director came in called Simon Toms and a new lawyer joined me, Ben Beabey, and we are technically at the same status. We both report to Simon Toms.

  • Thank you. You were and you still are a barrister. You were called to the bar in 1981. You practised at libel chambers and in 1985 you joined the Express and you moved on to NGN in 2005.

    If it's not an unfair question to ask -- and tell me if it is -- is there a difference in culture, in general terms, between the Express Newspapers at the time you were there and then News International?

  • Yes, I think there is a small difference. I think that what was said about Premiership teams -- I think all national newspapers are probably Premiership teams. I do think at the Sun, sir, that there is very definitely a culture that they are there to be the best, to get good stories in to really entertain and hit the market, and I think there is that desire there. Perhaps -- I'm not a football-mad person, but perhaps the analogy with Manchester United is fair, to be at the to be top, if you like, and I think that is there and that is something which runs throughout the newspaper.

    That's not in any way to put down 20 wonderful years at Express Newspapers, but I think there is a very tiny difference, yes.

  • I wonder whether I could divide Mr Jay's question into two. The 20 years that you worked at the Express, '85 to '05, covers an enormous span of time.

  • It covers the death of the Princess of Wales and many other quite important national events. Did you see a change in the way in which the work was addressed at the Express over that 20-year period?

  • Yes, sir, I did. I think that there has been, at Express and indeed I think probably throughout Fleet Street, a much more professional approach to matters. I felt as a lawyer that perhaps 20, 25 years ago, one's influence perhaps couldn't be -- was not so important, or was not thought to be so important. I do think now there's been a change. I do think that -- and that happened while I was at Express Newspapers. I think there was a -- much more of a realisation that matters needed really to be properly sourced, properly checked before they went in.

    I'm not trying to suggest for one minute, sir, that there was a Wild We. There wasn't. But I am trying to suggest that -- my honest view is that over the years there has been more of a professionalism in the way --

  • So "if it sounds right, lob it in", is that Wild West?

  • When I was at the bar, I used to libel-read at the Sun twice a week with Kelvin, and so I saw the lobbing. Things have changed very, very radically from that period of time. It was a very exciting time to be a lawyer, going in and watching that happened, but things are very, very different now, and in fact I think towards the end of Kelvin's editorship -- I suspect things were very, very different by the end and I think this morning he accepted that.

  • Is this a developing pattern that's still going on or is it really just a couple of sea changes?

  • There have been a couple of sea changes, one of which is obviously the law of privacy, which is massive. It's a several oceans change. But it is still developing. I think the fact that this Inquiry is going on, what happened to the News of the World -- one can see, I think, everywhere, the people I deal with and work with, you can see that's made a deep impression on them. I think they are taking on board that there have been some massive seismic changes in Fleet Street, and I think -- so at the moment I would say I think there is still a development of that, it is still going on, of people analysing even more deeply about making decisions about stories. So I think there is almost an added emphasis all the time that's been growing in my period in Fleet Street.

  • Your indication of a graph going gently upwards, I'm afraid, causes me to interrupt Mr Jay for a little bit longer. Is it a gentle movement upwards or is it up a bit when there's a problem and then slowly reverting a bit, then up a bit when there's a problem and slowly reverting, and now, if one takes the events of the last six months, up quite a bit, because of the reasons you've identified -- although the consideration that some people are horrified about what I might do causes me some concern -- but then a risk there will just be a slip.

    You can't comment on the future, but you maybe can comment on the past, and you walked into this by giving me a gentle graph.

  • Yes, I blame myself. Yes, sir, I think the graph was wrong and you picked it up. I think it is a series of jumps. I'm not sure that it slips back so much -- I've not felt that -- but it does go up in a series of jumps. I think that is true. One of the jumps being, for example, the Naomi Campbell case, which caused, when that went to the House of Lords, an enormous change with regard to practice. But even that took some time to work its way through into newspaper practice, and the difference when I first joined News Group in 2005 in the approach to privacy matters to now has been -- you know, there is a difference, and I think there's much more consideration of privacy than there was even then, and that was two, three years after the House of Lords case.

  • A couple more general questions. The Inquiry has focused to some large extent on the issue of celebrity and privacy issues which are related to that. In terms of the percentage of your work day to day in the Sun, is most of your work tied in with celebrity issues or would that give the wrong picture?

  • I think it would give slightly the wrong picture, but it's certainly true that celebrity issues do play a major part in the work that I do day to day, but there's plenty of new stories that need legalling. So day to day -- I mean, there might be eight or ten stories a day that might need legalling, and perhaps one or two, three of them possibly, celebrity stories. It would depend very much on the particular news schedule that day. But there is a percentage of it that certainly is celebrity, but it's not everything, sir, no.

  • You mentioned privacy --

  • -- and the Naomi Campbell case, but there are other cases, of course, which have built up the privacy jurisprudence in particular following the incorporation of Article 8 into domestic law through the Human Rights Act. In your own words, what has been the impact of that, following particular 2 October 2000?

  • Well, as I mentioned, I think that the real impact was felt after the Naomi Campbell judgment in the House of Lords. I think that really did start to make an impact, and the impact was, I think, primarily because -- before that, my recollection is that there were not a huge amount of privacy complaints. The period of time from sort of 2000, 2002, 2003, there were not a huge number of complaints. And, of course, as I remember -- I think I'm right on this, sir -- the Court of Appeal actually overturned the original judgment in that, so that there was a sort of slight -- if you like, it went down slightly at that stage. But certainly the claimant's solicitors picked up the baton very, very definitely after that judgment and I think there was a gradual -- sort of a wheel beginning to turn faster and faster as privacy became more and more important.

  • Thank you. May I address now how you are engaged in relation to the giving of advice? You probably cover this in paragraph 16.

  • Obviously the editor or the deputy editor can ask you for advice directly, presumably if the issue appears to them to be important enough; is that correct?

  • But is this also right: that through the system of libel reading, which obviously occurs at the coalface through more junior people, if particular problems arise, they come to you for a second opinion or final view; is that correct?

  • Yes. There is a system, basically -- and I hope I've set it out here, sir -- you can see the paper is libel-read. The paper will be looked through by a lawyer and various stories will be put into the legal in-basket and will be amended and pushed back, and on the vast majority of stories if the lawyer makes some marks, there's not going to be a huge discussion about it. My role would come in very much more -- each evening, I would try and go to the back bench, possibly see the editor at about 6 o'clock and just find out what's in tomorrow's paper, are there any issues.

    Sometimes a news editor might come and speak to me or a journalist might contact me during the course of the day, the afternoon in particular, perhaps, and I would get involved there, but I would try -- each evening that I'm in work, I try to find out what's in the next day's paper, if there are any major legal issues, deal with those. It's not a matter of dealing with every one, no, but dealing with the major legal issues. I have always felt that an editor expects an in-house lawyer to deal with any major issue if they're there.

  • Would it be right that all you're doing -- I say "all" -- what you are doing is providing a risk assessment from which the editor will make a decision? Is he prepared to take it or not?

  • I think that's absolutely right, sir. I don't -- and I suspect this is true of my colleagues on other newspapers -- see myself as having an editorial role. It's a very exciting place to be working in. It's very creative, immensely pressured just in that hour or two while the paper is going to bed. There's a huge amount of work to get done. That is very exciting, it's very challenging, but I don't -- I see that but I don't feel I partake in it in the sense of having any creative input.

    Very often the editor, or whoever's editing the paper, will ask about a headline or ask about use of a photograph or whatever, but it's not my decision. I don't believe the lawyer -- I try and approach it in the same way as if we instructed counsel and asked counsel to give direct advice on this story or that photograph. I try to give the same. Counsel will give advice and the editor can accept that advice or not accept that advice. That is -- being brutal about it, that's what the editor is there, paid for to do. I'm there, paid for, to get the advice to him clearly, under time pressure, but also, once the editor has made the decision, then to assist in every way I can to get that decision so that -- in accordance with the editor's instructions. If the editor says that he wants to take my advice, then to try and make certain that the final copy meets the instructions that I've got from the editor. So that's when the libel reading comes in, and obviously we're there to discuss any issues of public interest or whatever that arise.

  • I'm sorry, Mr Jay.

    To what extent -- and just give us a flavour -- is that advice accepted or rejected? Give us some sort of feel.

  • Most, nearly all the time, the advice will be accepted. I don't actually believe that there's any in-house lawyer can last at a newspaper group unless the relationship is such that advice is being given and advice is being accepted. The relationship -- you have to have a trust there.

    Having said that, there will be occasions when an editor decides that he or she -- and it happened all throughout my career -- nevertheless wants to press ahead with the story and that is a matter for them, sir.

  • To put it bluntly, yes. But I hope it's not a risk in terms of sort of deliberately breaching court orders or anything like that, or publishing pictures of people who are rape victims or anything like that. It's very often a matter of -- you know, particularly with privacy stories, for example, you have two -- I hope this is all right for me to say. There are two stages in the process. The first issue is: is there an Article 8 right? And then: is there an Article 10 public interest?

    But as the Naomi Campbell case shows, that can be a very dry academic issue. If you go and say: how do you actually write an article and get it into the newspaper? What you have then is a question of: what about the headlines, what about this picture, that picture, what about this piece of information? So you're not just -- the editor's not just making a decision about the story as a whole, whether there's a public interest in the story or whether there's not; the editor's also making a decision about particular paragraphs, particularly pieces of information.

  • Whether to put a photograph in, to take the example of the case.

  • A classic example. Had the decision been taken not to put the photograph in -- and as I think in one of the courts, at any rate, it was raised: why not use a sort of -- you know, just an ordinary picture of her and not outside her front door? We don't know. But my reading of the House of Lords judgment is it might have gone a different way. It was only 3-2 anyway. It might have gone a different way. So there's one decision on the picture, possibly have a huge impact on the legality of that story. So when I think -- when newspaper lawyers talk about working at the coalface, I think what they mean is it's not an academic issue of whether it's a breach of privacy; it's about words, pictures, headlines.

    With libel as well, one of the things that -- tabloids are not only brilliantly written; they're brilliantly presented and set out. The headlines hit you. If you look at the tabloid stories that have been presented to you and you're looking through those, I'm sure you will see straight away the impact it makes. They're very professionally produced on the impact, so that again, if you just look at a story by itself and look at it and say, well, is it balanced and does it have "alleged" in it or whatever, you can very easily come to the conclusion -- it's not the same as how it would appear in the paper. When it appears in the paper with a big banner headline and big bold letters and pictures, it sort of has an extra life of its own, and I think that's something, again, that one who is working at the coalface has to be aware of.

  • Thank you. You touch on these matters in paragraph 23. You have very helpfully elaborated upon them.

    At paragraph 27, you deal with what your main responsibilities as editorial legal adviser are. I've been asked to ask you just to slow down a bit.

  • I'm so sorry, my fault.

  • There's no need to apologise. Everything you are saying is being transcribed. Try and watch the lady over there --

  • I wouldn't try and watch her if I were you. It's my fault. I was just taken up with the discussion.

  • I'm obviously interested and passionate about it, and I'm sorry to get carried away. Yes.

  • The categories of your responsibilities: there's libel reading, dealing with prepublication threats.

  • Can I just touch on one matter, though: pre-notification.

  • Which we've discussed in detail, in particular Mr Mosley's case.

  • How often now does the -- did the Sun newspaper, in particular -- and you have direct knowledge of it -- notify people that they are about to be the subject or target of a particular story?

  • Well, the stories that I'm involved in, a large part of the time, a very, very substantial part of the time. My own feeling as a lawyer is that it is wholly -- it's absolutely correct journalism to go to the other side, and a large number of libel problems can be avoided if you go to the other side and you give them a chance to come back and explain the position carefully, and my experience has been that that does make a difference. So I think in the large majority of cases, that happens, and my position on privacy would be that I would always like to -- I always like to advise on what the issues are with regard to prior notification. I always like to know what an editor is going to do, because if an editor decides that prior notification will go ahead, I would regard it as my duty to instruct counsel or solicitors in case there was an injunction, because we don't want -- an injunction would take place very, very quickly indeed, can take place -- in 20, 25 minutes you can be summoned down to the High Court and in such instance, I want to be ahead of the game. I want to have counsel with electronic files or whatever, so I can try and meet that.

  • So the point you're making is: first of all, in by far the great majority of cases, you would pre-notify anyway?

  • But even then, there would only be a small number where you'd fear that pre-notification might lead to an injunction or for every one?

  • No, it would be a small number, because I think a large amount of the pre-notification is probably on matters that are not private. There would be points of facts to check, and that's quite right.

    But where there is a privacy issue and advice has been taken on what -- on pre-notification, I would want to know as soon as possible so I can be -- prepare for it, particularly if it was, you know, late, where we were going to get a duty judge, because the perception is whether it's right or wrong is another matter. There's always a feeling that it's easy to sort of carry it over the next day and then it delays to two days to return date or whatever. So I want to be in a position where I have counsel there who can put everything they can in front of the judge at the earliest stage to prevent it being sent over.

  • I'm sorry, I'm going to go down a siding.

  • Is this a problem? You talk about a duty judge who isn't necessarily a specialist media lawyer.

  • As a matter of fact, I personally have not found it a problem. We had, last year on the Sun, quite a number of injunctions where we did pre-notify. They were privacy injunctions and I don't have any complaint about the judges we went in front -- we were put in front of judges very quickly, but no. I'm talking about a perception, I think, editorially, that you don't get -- you might, with a duty judge, have somebody who tends to pass it over to the next day. It's not been my experience.

  • I don't want you to be defensive about it.

  • I have a judicial job to go back to, and therefore I'm actually quite interested, as you raise it, in your perception of the way in which the courts respond to these things.

  • I suppose it always depends upon what material on the privacy case is put in front of the judge at what stage. Every case is different. Every case is going to be an intense focus on the facts. I personally don't have a complaint about the duty judge system, no, sir.

  • Can I just ask you a question which looks at the other side of the coin: it might be said that there are situations where there is a public interest in not pre-notifying the subject or the target. Are you able to assist the Inquiry with any concrete examples of that, or perhaps if you're not, give your opinion as to whether there is ever a public interest in not pre-notifying?

  • I'm so sorry, sir. Off the top of my head, I can't put an example to you. I suppose that it's possible that there could be examples of such a public interest.

    I think it's undoubtedly true that with regard to perhaps some celebrities, there is a perception, again -- and I don't know because I'm getting it hearsay, second-hand, if you like -- that some agents will not respond or will put the story around to kill your story; in other words, that if you go to a celebrity agent early, what will happen is the story will then be leaked to the other newspapers in a more favourable manner, and that certainly is a perception. Whether that amounts to -- I don't think that amounts to a public interest in not going to them, but it may amount to a reason why not to go to them.

  • Thank you. I'm not going to cover all the matters in your statement, Mr Walford.

  • We, of course, have read the statement carefully. But I do have a point on paragraph 27 (viii), which is on page 07933. From time to time, you are asked to advise on conduct and you give one example. How often does that happen, that you're asked to give ethical advice in concrete situations?

  • Of course, the example here, sir, would be not simply an ethical point; it would be a legal point. We would have to be extremely careful about a journalist purchasing drugs. We did a story towards the end of last year, an expose when a journalist purchased drugs -- I think exactly on the point, actually -- and I think that person subsequently has been prosecuted. Not the journalist, but the person who the drugs were purchased from.

  • You pick this up again, I think, in paragraph 29, (i), where you deal with exposing those who use or supply drugs. You state:

    "Subterfuge may be used and drugs purchased by or on behalf of the journalist, which raises certain legal issues."

    I suppose one of the issues is that possession of illegal drugs, for whatever reason or purpose, is in itself, by definition, illegal?

  • How do you avoid that obvious point, as it were?

  • Well, in such circumstances, I'm insistent that the journalist goes straight from the purchasing of the drugs -- and obviously they don't know at that stage whether they've purchased the drugs -- to a testing house -- I like it to be done straight away -- and the drugs are left at the testing house. I think for prosecuting purposes, the drugs are not destroyed, obviously, so that if later a prosecution needs to take place, it can do.

    I also make clear that if the police come to us, we must be in a position to be able to co-operate fully with the police, and so we are acting as responsibly as we can in that.

  • Have you had situations -- and we're talking generally now -- where the method of subterfuge used or about to be used is not illegal but it may be unethical and therefore you have to weigh up that fact against the public interest in the ultimate story? Do you encounter that?

  • I'm sure I must, sir, but I can't think of an example straight off.

  • But in general terms, how is the balancing exercise conducted in such a situation?

  • I think that if it were an ethical issue rather than a legal issue, I think that would probably be something that the editor and the managing editor might look at, the ethical matter, whether that came under the PCC code. I would hope that I would have an input into it, but it would not be my ultimate decision.

    If there was a legal element to it, then I think I would want to have an input into that.

  • By legal, illegal, you mean contrary to the criminal law; is that right?

  • Well, if it was contrary to the civil law as well. If it was going to be a breach of confidence or whatever, that would be a matter that I think the lawyer would advise on, yes, sir.

  • Although you make a distinction between that, which involves intellectual property rights, and privacy and libel, where you made it clear the ultimate decision is the editor's; is that right?

  • I'm so sorry if I've given the impression in any way that the ultimate decision on anything is mine. It's not. The ultimate decision on anything going into the paper or anything done by people in the newspaper is going to be for editorial. I'm so sorry.

  • No, you've been quite clear. You provide the risk and they make the decision.

  • Absolutely, sir. But obviously --

  • And carry the responsibility for it.

  • Yes. With regard to criminal matters, obviously the editor is going to come and say, "I want this handled entirely by the lawyers and I expect it to be done in such a way that the journalist is not arrested", and that's why I would have an input directly onto it.

  • Thank you. May I ask you a question about paragraph 33.

  • Here you're on the issue of training.

  • You point out that:

    "From time to time the company organises, through its managing editors, training for journalists, often in conjunction with PCC. Following the Goodman case, training of the News of the World was arranged on legal issues as well as by the PCC."

    Presumably, though, that training covered the Sun as well, did it not, Mr Walford?

  • No. That was training specifically onto the News of the World with regard to issues, so it was organised and run by the managing editor of the News of the World.

    The Sun's training has been organised through the managing editor's department, and that has very largely been on the PCC code, and with the assistance of the PCC.

    I think that, looking back, there was more we should have done with regard to training over the years, and I think that -- I think there was a great deal of emphasis on the PCC and the PCC code. I don't think there was probably, in hindsight, sufficient emphasis put on legal matters. There was some, but I think the situation now has much improved. We have a great deal more legal training, so that is has been corrected, but I think, looking back, it was something that perhaps should have been better.

  • Did you hear rumours, at about the time of the Goodman case or thereafter, that phone hacking wasn't limited to the News of the World but might have encompassed the Sun?

  • People -- I didn't hear rumours, but people speculated and wondered whether that had happened. I was very concerned that it should not have happened, and I did speak to people and ask people who I thought might know, and ask and say, "Had it happened?" and I was assured that it hadn't, and I can say on oath to you that I've never seen anything in the Sun which has made me think that it has been happening, and if it has, then I would be very surprised and very shocked. But I have no reason to believe that it has, sir.

  • You told us that you spoke to people -- I'm not going to ask you who they were, but people who would or ought to have known, and they gave you assurances to the effect that these practices had not taken place?

  • Thank you. Can I ask you a general question. I'm moving now to paragraph 51, Mr Walford. This is vetting of sources.

  • Responsibility there doesn't lie with you, of course, but with the editorial team, but what input, if any, do you have in seeing whether or not sources have been checked or the story otherwise stood up?

  • If the system works properly, the lawyer, be it me or the night lawyer, will have an input onto that. The concentration is not so much where the original source comes from. That's partly that -- with regard, for example, to libel. Talking about working at the coalface, one's primary concern is: what material is there on the record to prove whatever the meanings are in that story?

  • Yes, because a source that is undisclosed and will not be disclosed has little evidential value.

  • Absolutely right, sir. That's absolutely right. So my concentration is always going to be on what material there is on the record that I can rely on to prove this meaning. I make an assessment on what I think the meaning is and I then say, "What material is there to prove this meaning?" and if there isn't the material there, then I say, "Is it sensible to publish this meaning?"

  • In relation to each sort of case you're looking at, do you keep a file or a written record which records (a) your assessment of the case, and (b) the underlying evidence that it exists?

  • No. At no time in my career have I made notes about the legal advice that I've given each night. I only -- I don't think it would really be possible. There's so much material that comes in. There's so much work.

    One remembers that the system itself does have legal marks written on it because -- the leg-in basket will have legal marks on it, so there is a record on most of them somewhere, but no --

  • What you say "legal marks", just explain what you mean by that, would you?

  • Having discussed the case with an editor or news editor or whatever, one would then -- the hard -- a copy is put into the machine and one then simply types out "delete this" or "add that" or a note to the subeditor: "For Pete's sake, don't do X."

  • Or very often, one puts certain paragraphs and one says, "These are legal musts", or one says at the top of the copy: "For goodness sake, balance this out", or: "Don't just run ..." Invariably the copy is much longer than the story that appears, and what you don't want is the other side of the person's -- right down at the bottom just gets lost or cut out. It's not deliberate but it happens, and it's things like that that -- those are the legal marks that would be made, sir.

  • This is my final question, and I suspect I know the answer to it: when it comes to an editorial assessment of either libel risk or privacy -- and in privacy cases we're weighing up two Convention rights or public interest against private interest, or however you put it -- is there a document or audit trail which one could look at after the event which could demonstrate how the risk has been assessed or where the public/private interest balance as fallen?

  • No, there isn't. These are decisions that are -- and debates that take place from sort of 6 o'clock to 7 o'clock to 8 o'clock, standing at the back bench of the newspaper and looking at copy, looking at proposed headlines and things. There is no record of those. To a certain degree, you have to rely on trust that everyone afterwards, if a problem arose, would remember it.

  • For the biggest stories, that may be rather difficult, mightn't it? I mean in the sense that in one sense you're remembering something, but you may have heard during the course of the day people have said, "Oh, well, this is X years ago. How could I possibly remember this conversation or that detail?" Yet it actually might be quite important to demonstrate that proper consideration was given to the public interest if there is a subsequent challenge.

  • Yes, I take that point on board, and I think the PCC code has recently changed with regard to matters on that, and I think it may be something we have to look at and consider. I'm just aware of the practicalities of it, and articles that are published -- afterwards, you tend to have complaints relatively quickly, sir. Obviously there's a one-year limitation with libel, so matters tend to escalate fairly quickly, so it's normally possible to find out --

  • The trouble with that is ex post facto rationalisation. You do something, you then get a complaint and you think, "My God, I've got this complaint, so why did I decide this?" So then you run through a whole range of reasons why you might possibly have reached the conclusions you actually reached, but it's all rather ex post facto.

  • I think it's called honest opinion now rather than fair comment, but I recognise that.

  • I think you're saying, Mr Walford, that given how busy you are, in practical terms it's very difficult to achieve such a gold standard unless you had someone assisting you taking a note, or someone assisting the editor taking a note, so that decisions could be contemporaneously recorded; is that right?

  • I think that's probably --

  • Or there has to be some sort of system which doesn't presently exist?

  • As I've mentioned, there is the leg-in basket, but otherwise, the system, no.

  • But, of course, your legal marks will be privileged?

  • So nobody will see those at all unless privilege is waived. It's actually to try to get to -- it's to try to encourage the decisions to be made in the right order.

  • I appreciate editors will think: "Well, this is what a lawyer would say, isn't it?" You know: "I'm too busy trying to produce a newspaper which is interesting, which is on top of the facts and all the rest of it, without worrying about what's going to happen later." But the question is: how we do develop a system that is fair both to the press, which I recognise is critical, but also to everybody else?

  • Mm. I can see the problem. I think there is a practical problem there behind it, but practical problems can be overcome and it may be they need to be, but it's certainly -- it's not something I'm afraid I've given sufficient thought to. I will do.

  • Then you're encouraging me to ask the question -- this is the second time you've done it. If you will do and you do have any thoughts, then I'd be very interested to hear them.

  • Thank you. Those are all the questions I have for Mr Walford.

  • Sir, would you be prepared to break now for fifteen minutes so I can have a short discussion with the next witness?

  • (A short break)

  • Yes.

  • Our next and last witness for today is Mr Dominic Mohan, please.