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

  • MS ELIZABETH HARTLEY (sworn).

  • Your full name?

  • Elizabeth Barbara Anne Hartley.

  • Thank you. In the first of the three files in front of you, under tab 8 and tab 8A, you'll find respectively your first witness statement of 25 October --

  • -- of last year, and your second of 6 December [sic] this year; is that right?

  • Both are signed and dated by you?

  • It's true there's no statement of truth on either statement, but is this your true evidence?

  • Thank you. In terms of who you are, you are the head --

  • The second statement is actually 6 January of this year, rather than 6 December.

  • I thought I'd said 6 January.

  • Thank you. Slip of the tongue.

    Head of editorial legal services at Associated, so does that mean that you're responsible for both the Mail on Sunday and the Daily Mail?

  • And do you have any continuing role in relation to the Evening Standard on a contractual or other basis?

  • I do for the moment, but that is going to be taken over by the Independent's lawyers in February next month.

  • You've occupied your current role since 2009, but before then you were in private practice and partners in two well-known commercial firms of solicitors?

  • So that is your background. In terms of the way in -- first of all, your roles and responsibilities. These are very similar to the roles and responsibilities that we have had explained to us by other witnesses who are in like position to you.

  • Can I ask you about one specific matter, if you don't mind? Training. It's paragraph 6.

  • On data protection and other legal issues for journalists and editors. How is that training imparted, Ms Hartley?

  • Well, the training has been conducted in the past on data protection by the former head of the data protection committee, who has in fact now left the group. It's been in the form of one-to-one training and lectures.

    We have in fact just introduced an interactive training module for training journalists, which contains some practical examples designed to assist them when they're confronting practical problems, and of course we are always there in order to give advice in relation to specific problems which arise.

  • Are the picture editors or photographers under his wing, do they receive training?

  • Yes, everybody will go through this module.

  • I think you've drawn to my attention one case which might be relevant to a question which was posed earlier. It's Elton John v Associated Newspapers.

  • Mr Justice Eady [2006] EWHC 1611 (QB). We'll obviously look at the case for ourselves, but you remember the case. Just tell us a little bit about it.

  • I felt it might be of assistance to the Inquiry because it addresses the issue which arose this morning when Mr Silva was giving evidence on where the boundaries lie and how they're drawn and why they're drawn in relation to walking from your house to your car, if it's on a driveway or if it's on a public street.

    I thought it was useful for you, sir, to know that this inquiry was considered by Mr Justice Eady in his judgment in 2006, when Elton John made an application for an injunction to prevent publication of a photograph by the Daily Mail. I handled the case externally when I was a partner at Reynolds Porter Chamberlain, and in that judgment Mr Justice Eady concluded that there was no reasonable expectation of privacy in relation to that photograph.

    Mr John was travelling -- had travelled from his house in Windsor to his London residence and was walking from his car to the gate of his house across the pavement. There is no evidence of harassment against our clients or the photographer, and the injunction was refused, was declined. But it's a useful authority on these issues.

  • It's also right to say that coincidentally Ms Michalos also drew the same authority to my attention and indeed provided the reference, so we'll look at that in due course, but thank you for having done so.

    Paragraph 11, please, which is phone hacking.

  • You say in paragraph 12:

    "However, heads of editorial departments and key journalists have denied any knowledge of phone hacking."

    Can I ask in what context and to whom, please?

  • They have been interviewed, they have spoken to the managing editors and they've also had conversations with my predecessor in which that matter was discussed.

  • Then you say in paragraph 13 that searches of financial records were undertaken.

  • Was this in the summer of last year?

  • Can you tell us a little bit about the searches, particularly in the context of names of companies and individuals?

  • Well, what we decided to do was to interrogate our financial systems by conducting a search for payments made either to Mr Mulcaire or to his company, or indeed to anybody who had been named in conjunction with phone hacking or associated with him or any other names he may have used, to see whether we had records of payments to them as a good way of trying to double-check that what we were being told was accurate. And those searches resulted in confirmation that no payments to those people had been made and that's been a continuing process.

  • Okay. Then you tell us you've conducted enquiries into the activities of Mr Raoul Simons.

  • I'm going to gloss over this since you point out, as is the case, that he's been arrested in connection with Operation Weeting and some of your statement has been redacted for that reason, but it amounts to this, does it, that although your records show that Mr Mulcaire was a contact of Mr Simons, they don't reveal any payments to Mr Mulcaire, nor any evidence to suggest that Mr Simons used him to obtain information by means of unlawful interception of communication?

  • That is correct, that is correct.

  • Thank you. Can I ask you about the advice which was sought from you as to the use of subterfuge? Can I ask you what forms of subterfuge?

  • I can't recall any detailed advice which I'd given on the question of subterfuge over the past two years, but it's something that I would be expected to advise upon as and when it arose, if it arose, in relation to the conduct of investigations into a story. Into an allegation.

  • Let me ask you a more general question about advice given to editors. Obviously the editor makes the final decision. You advise the editor as to risk. About how often in percentage terms is your advice rejected?

  • I don't think I can recall one occasion when my advice has been rejected. Sometimes the advice takes the form of a discussion about an issue, where agreement is reached on what the approach should be to a particular article, but I can't recall my advice ever being overruled.

  • Okay. The use of private investigators and inquiry agents. We know from other evidence that there was a ban on the use of inquiry agents in 2007. That was two years before your arrival.

  • You have no knowledge of any journalist at Associated using private investigators or inquiry agents, and then you say:

    "... other than genealogists, company search agents or similar."

    Could you tell me, please, what you mean by "or similar" in that clause?

  • We have two databases in our library which are used for searches and we have two genealogists who provide information on people's backgrounds when we're writing about people's family histories. I'm not actually aware of anything else. We of course do company searches in the way that you would expect on financial stories, but I don't mean anything other than that. We don't use private investigators or inquiry agents.

  • Okay. Operation Motorman, and I'm going to cover this quite shortly given the position we've reached when Mr Owens' evidence was discussed. You may recall that?

  • There are just one or two matters, if I may. At paragraph 21, if I could take it out of sequence, you tell us there that the visit to Cheshire had been arranged following a meeting between representatives of the ICO and the president of the Society of Editors, during which you understand the ICO had agreed to make available to any newspaper mentioned in the report the underlying evidence. When approximately was that meeting, can you recall?

  • To the best of my recollection, I think the meeting was in July. I wasn't present at it, obviously.

  • July which year?

  • So is this right -- but we can have this confirmed by Mr Graham when he gives evidence -- that before July of last year, the ICO were not making available the underlying evidence to newspapers?

  • And so the timing, namely you arranging for four representatives of Associated to go up to Cheshire in August, you might say it's wrong to say that that ties in with the announcement of this Inquiry necessarily, it follows on from the green light being given in July; is that right?

  • Yes. And in fact in evidence to a Parliamentary Select Committee I think in 2008 we had said that if we were able to be given access to the underlying information, we would like to see it. So we'd made our position clear and having been given the green light, we went to look at it.

  • Had there been no Inquiry, this Inquiry, would you still, some years after the event, have sent representatives up to Cheshire?

  • I think I would, because it's part of my role in order to look at editorial processes and procedures. And this issue is something which has been raised earlier. You know, before the Inquiry was announced last year. So I think, having been given the opportunity to now look at the documents, we would have wanted to follow that up.

  • Yes. Could you comment, please, on the people who did go up.

  • In general terms -- tell us why you chose who you chose.

  • Well, I wasn't in fact the person who decided who should go, although I was consulted about it and I was very happy with the people who were chosen to go to Wilmslow.

    The people who went were John Wellington, who is the managing editor of the Mail on Sunday, as you have heard, and Ted Verity, who is the deputy editor now of the Mail on Sunday, was a senior executive on the Daily Mail, and two lawyers, one of whom was my predecessor, Mr Edward Young, and one is my colleague, Julian Darrall, who was with me at Reynolds Porter Chamberlain.

    I was happy about that selection because I felt it was very important people went who would understand the documentation and who would be able to come back and tell me who the people were who were named. I needed to know whether the journalists were still employed and have information about them in order to consider anything we learnt in Wilmslow to enable us to look into it quickly on their return.

  • It might be said that given that Mr Wellington was the managing editor back in 2003 and there had been a rebuke, but we've heard the context in which the rebuke was given by Mr Wright, but that he was the wrong person to choose rather than the right person because he might try overhard to exonerate the paper. Is that not a fair criticism?

  • No, I don't think so. I've known John Wellington for a long time. I've worked for this group externally for nearly 30 years and I regard him as a man of great integrity, otherwise I would not have sent him. If I'd thought there was any chance that this investigation would not be undertaken properly, I would have asked for other people to go.

  • The Inquiry is not concerned with the conclusions or findings of your investigation, because we've been able to look at wider evidence, including the books -- at least I've had access to the books, not everybody has had access to the books. But may I ask you this one question: did you receive a report from anybody following this investigation? A report in writing?

  • I received a series of notes as our investigations continued on what we'd found out. We were trying to match the information that we were able to look at with any stories published, which was proving very difficult, and I got regular updates on where we had got to, and on discussions with people we'd been able to identify.

  • I'm going to leave that matter there, since, as I've said, we've gone into the underlying information in greater detail than you were able to.

    Can I move on, therefore, to your supplementary statement? First of all, by way of observation -- well, there are two points, really, general points. By way of observation, the statement contains a lot of hearsay. Of course, this Inquiry can receive hearsay.

  • But why did you decide to be, as it were, the spokeswoman for Associated on this issue rather than perhaps the journalists themselves?

  • Well, I thought it might be easier for the Inquiry if I produced a statement pulling all the information together. There was no desire on my part to avoid producing statements from the journalists themselves; I just thought it was the best way of dealing with the material. If this Inquiry was a trial, of course, where we were trying to get to the bottom of the truth or falsity of the allegations, then of course they would give statements, and would be giving evidence. So it was merely, we felt, the best way to summarise what the evidence was, so I've provided it on the basis of the information relayed to me. But of course, if the Inquiry would like to receive statements from any of the individuals concerned, that would not be very difficult to do.

  • Why you, Ms Hartley?

  • I think in my role as head of legal, I'm well placed to do it. We've after all looked into the circumstances, asked questions about how this material was obtained, and gathered it together. So it seemed to me that I was an appropriate person, as it spans both newspapers, to provide this statement. Not because I'm particularly keen to give evidence on it.

  • You don't deal in the statement expressly with the term which I think was in the Daily Mail the day after Mr Grant gave evidence, and so that would have been on 22 November last year: "mendacious smear".

  • First of all, whose term was that?

  • It was the response of the Daily Mail on the day Mr Grant gave evidence, as you know, to requests for statements by our group on very serious allegations made by Mr Grant when giving evidence. That statement was released to broadcasters for publication.

    We had discussions about the statement. I think the draft was contributed to by a number of people, including the editor in chief.

    I haven't dealt with it in my statement, and the chairman of the Inquiry, Lord Leveson, said this morning that he didn't want witnesses to be criticised in relation to their evidence, and I felt it was better not to deal with that in paragraph 27 of my conclusion.

  • Well, except the last sentence of paragraph 28 does do that. Of course, you didn't know I was going to say what I said.

  • No, but I think that that is an appropriate statement, because I think that the evidence given by Mr Grant is fairly described as speculation --

  • That is certainly my view, based upon the evidence we have got from our journalists.

  • But Mr Grant didn't have the evidence from your journalists, even if it's right.

  • He didn't, but equally he didn't have any evidence himself, either, as to the Tinglan Hong claim that a journalist had got information from the hospital or in relation to the "plummy-voiced woman" article in the Mail on Sunday.

  • That's a conclusion that I'm going to have to consider, isn't it?

  • So the "mendacious smear" term was one which was arrived at following discussions. Mr Dacre, the editor in chief, was part of those discussions, so it must have been his decision, mustn't it, to use it?

  • Mr Dacre is the editor in chief, and of course we were here in the Inquiry. And this was a response to the evidence which was given in reply to requests for comment on the evidence in the afternoon while we were still sitting.

  • What is Associated's formal position, though, as regards "mendacious smear"? Does it stand by it or does it withdraw it?

  • As you know, the editor in chief is away. I haven't had a further discussion with him about it before giving evidence. My view is that they will stand by it.

  • You don't have to disclose matters which may be privileged, although I doubt whether this question is going to address a privileged issue. You must have discussed these matters with Mr Dacre before you filed and signed your statement, mustn't you?

  • There was a great deal of discussion after Hugh Grant gave evidence, and it may be pertinent to mention that we had already had communications with Mr Grant on allegations of phone hacking earlier last summer when the Hacked Off campaign commenced, when Mr Grant gave interviews to broadcasters before going into the Houses of Parliament for the launch, saying that -- accusing our group of being involved in phone hacking.

    In an endeavour to be of assistance and helpful and to avoid mistakes being made with serious consequences, I spoke to his representative and explained our position to him and followed it up with an email.

    I would have thought, coming on to his evidence to this Inquiry, that before making very serious allegations, Mr Grant might, for example, have checked with Paul McMullan whether his understanding of Mr McMullan's position and his understanding of what Mr McMullan was saying to him was correct. It's a serious matter --

  • Bearing in mind the relationship there was between Mr Grant and Mr McMullan and the article that he'd written?

  • Yes, I do. I think if you are going to make a serious allegation and you're leading a campaign against the media, which Mr Grant is doing, you would and should take care over what you say. I do think that.

  • But if I may address that issue, we saw the text of Mr Grant's New Statesman article, "The bugger, bugged" or words to that effect, I think it was. Would you not agree that certainly one interpretation of what Mr McMullan said was precisely that, that the Daily Mail was indulging in phone hacking? Of course it's understood that Mr McMullan clearly resiled that when he gave his evidence, but that's certainly one interpretation if we just read the words.

  • We haven't seen the underlying transcript, unless the Inquiry have seen it, I don't think it's been disclosed to the core participants, on which the Spectator article was based, but I think it would have been a straightforward matter for Mr Grant to have checked that. And I think if you're going to make what are going to be widely publicised allegations, you would be careful about what you say. And if you choose to make allegations, which he's perfectly entitled to do, it should come as no surprise when those are very robustly defended.

  • Mr Barr has heard the tape, and it is consistent with the transcript, but if that's wrong I'll be corrected. Yes, what I've said is right. He needed to do that before Mr McMullan gave evidence.

    I think your position is you don't accept for one moment that that was at least one interpretation of what Mr McMullan said in terms of the black letter of his words, if I can put it in that way? You don't accept that?

  • Are you not -- if I can be forgiven for asking this question -- not a little bit too close to your client in the sense of trying to support the position of Associated?

  • I don't know if it's necessary to go there, Mr Jay. The fact is that I've read the transcript, I know what's said. I'm going to reach my own conclusions whether the views are justifiable or not.

  • For just the once, I was treating you as a jury.

  • I don't think I've done that too often.

  • If I've lapsed, I've lapsed.

  • I'm not suggesting you've lapsed, I'm merely suggesting that --

  • We can move on. Just bear with me one moment.

    The tape was checked, but not by Mr Barr personally, but he was satisfied of the position. I think I can move on to paragraph 2, if I may, of your supplementary statement.

    The starting point is the News of the World story, and we've seen that in Mr Grant's HG2 exhibit. You've been told, is this right, Ms Hartley, that the story was offered up to the Mail on Sunday by Mr McMullan, but the Mail on Sunday was not interested?

  • I didn't ask Mr Wright that, and perhaps I should have done. Do you know why?

  • No, but I'm able to confirm that that is what I've been told.

  • When you say "it was offered to the Mail on Sunday by Paul McMullan", of course we don't know how he got this story, but he was asking for payment, presumably, was he?

  • Okay. Then we move on to after the birth. The birth was on 26 September of last year. Mr Todd, one of your reporters, was contacted by a source from within Mr Grant's celebrity circle. Of course that source you wouldn't name under any circumstances, would you?

  • No, and in fact I don't know the identity of the source.

  • When you say "from within Mr Grant's celebrity circle", I think you mean a friend or professional associate of Mr Grant's, do you?

  • I think that's a reasonable interpretation of it.

  • It was this source who told him that Ms Hong had given birth at the Portland the week before. Of course that information was incorrect for a start, wasn't it?

  • Then you say the source gave Mr Todd various pieces of information about the situation, but we don't know what those pieces of information are, do we?

  • I have a little bit of information, but I'm not sure that it's particularly pertinent to the issues raised.

  • And I haven't included it because I thought it was better to be discreet about it.

  • The next stage, and this is more important, another reporter was sent off to an address for Ms Hong in London. It was the wrong address; she'd moved on.

  • And there was then a telephone call to Ms Hong's mobile on 19 October. The mobile number had been given, as you explain in paragraph 8, by the agency, I think, the letting agency?

  • Yes, in paragraph 4, yes. 5, actually. Paragraph 5, I think.

  • And then there were a number of phone calls?

  • And it was clear from those phone calls that Ms Hong didn't want to speak to the Mail reporters, did she?

  • Well, the first -- well, as set out in my statement, the first call, Ms Hong said that she was driving and so the journalist rang off, said, "I beg your pardon", rang off and left a message later that day. And then after that another journalist telephoned and spoke to her very briefly on 21 October and then other enquiries were made.

  • I just -- sorry, carry on.

  • I just wonder what the policy of the Daily Mail was. We reached a point where Mr Gladdis had left a message on her voicemail, she didn't reply to it. Mr Todd then called and Ms Hong gave him the brush-off. By then it was pretty clear she didn't want to know, did she?

  • Well, this is one of the difficulties you have to confront. On the one hand, you want to do what you can to check the accuracy of a story which you've been given, and there are a number of cases of responsible journalism where only one or two unsuccessful calls have been made and that hasn't been deemed to be sufficient effort. If what you're trying to do is to establish the accuracy of information you've been given, you will call more than once or twice, to make sure you've done what you can to find out what the position was.

    The real -- perhaps the real solution to this would have been for Mr Grant's publicists simply to have said to the media on her behalf that she didn't wish to make any comments and would be grateful if journalists would desist, and then they would have understood the position straight away and she wouldn't have had any further calls.

  • That's one possibility, but can we possibly analyse it in a different way? Here was a woman who enjoyed no celebrity, who was clearly, was she not, an entirely private person; are we agreed?

  • She is a private person. She's not a celebrity, no.

  • The only issue, of course, is her association, her relationship with Mr Grant, but we're not at the moment addressing an intrusion into Mr Grant's privacy, not at the moment; we're addressing an intrusion into her privacy, aren't we? Would you agree that certainly after two goes, two attempts, it was pretty clear that she didn't want to know, as it were? It's certainly highly arguable that the right response, to use your language the response of responsible journalism, was to back off rather than to persist with her at least, wouldn't you agree with that?

  • But if you look at these contacts, after the -- I think I'm right in saying that after 21 October, the calls were to Mr Grant's assistant, not to Ms Hong. So it isn't the case that she had repeated and persistent calls, I think, from us in relation to this. And it wasn't clear, I think, to the journalists what the position was even after the announcement on the -- I think 1 November when Mr Grant issued a statement confirming it, it was done in such terms that he didn't accept that she was his girlfriend, and again didn't say, "We'd be grateful if you would leave us alone and give us some privacy while we enjoy our new family", he referred to it as "a fleeting affair" and it wasn't clear really what the position was with Ms Hong. In some circumstances like this, people do talk to the media and do make statements, and really -- I don't think the position was -- had become clear what she really wanted to do.

    But as I say, it seems to me that by 21 October, I think after two days, I don't think that further calls were made to her. I wouldn't have regarded that as anything remotely like harassment, but simply journalists not knowing whether the information they were being given was accurate, and they were doing their best to find out what the position was, which is actually what responsible journalism is about.

  • Can I ask you -- I have a number of follow-up questions relating to that answer, but first of all, did the journalists concerned, this is Mr Gladdis and Mr Todd, did they keep notes of their attempts to speak to Ms Hong?

  • I haven't checked. Personally, I haven't checked their notebook. They usually do keep notes of their attempts, and certainly they have summarised for us the action they took.

  • Yes, because you were asking them some time -- the length of time isn't altogether clear but we know the date of your statement -- some time after the events to address the precise occasions on which they attempted to speak to Ms Hong; is that right?

  • And it would be standard practice for journalists to keep a note somewhere of the efforts they made in this sort of case; is that right?

  • I don't know that they will -- if they've made a call and left a message, I don't know that they would do anything in the form of an attendance note that lawyers would do. I would expect them to make notes in some form, whether straight onto a computer and their copy or into a notebook, of anything they had discovered.

  • You were dealing with an allegation made by Mr Grant that Ms Hong was persistently telephoned. Surely the best way to deal with that allegation, apart from speaking to the journalists or arguably getting statements from them, is to see whether they kept a contemporaneous record and at the very least exhibit such records to your statement. Would you agree with that?

  • I wouldn't have anticipated exhibiting statements or notes to this statement for this Inquiry, but this summarises the information which they had given us in response to our questions.

  • Yes, I'm not doubting, Ms Hartley, that your statement is honestly given --

  • -- to the extent that you are putting down what you have been told by others.

  • But it may be in dispute, I think you'd have to accept, that what Mr Gladdis and Mr Todd are telling you is correct, because, after all, it is in contradiction to the evidence Mr Grant -- admittedly it was hearsay evidence, but that doesn't matter -- has given this Inquiry, and all I'm saying is that wouldn't it have been better, in order to anticipate precisely that dispute, which probably still remains, to have exhibited the contemporaneous records kept, if any, by Mr Gladdis and Mr Todd? Do you agree with that?

  • I could possibly still do that, but I thought Mr Grant was saying, and I may be wrong about this, that calls had been made to her neighbours and friends, not just that she had had repeated, persistent calls, and this sets out, as clearly as we can, what calls were made and how many in that period.

  • Okay. To fill in one important detail before we get to the story breaking on 1 November, it's paragraph 9 of your statement.

  • Mr Neville, another reporter at the Mail, was informed by someone at Westminster Register Office that although there had been no registration by either parent, the office had a record that a child had been born to a woman called Sophie Hong at the Portland Hospital on 26 September 2011.

    To be clear about that, is that information which the Portland gave Westminster Register Office?

  • That's my understanding, yes. And that that is their practice, to provide information on births within the catchment area of the Register Office.

  • In case the parents failed to register the child.

  • Within the time limit. That's my understanding.

  • So then, if I can go to paragraph 11 and the evidence you gave about five minutes ago, it was Mr Grant's agent or publicist, I think, in America who issued a statement confirming the story and referred to the "fleeting relationship", I think.

  • He did not expressly say, "Please respect our privacy" --

  • -- but notwithstanding that, why do you say that ignoring his position, Ms Hong was fair game?

  • I don't think I am saying she's fair game at all.

  • So what are you saying in relation to her?

  • I think it might be helpful to just provide the context and the way in which we work and people know how we work. We regularly get notices from -- requests from people or notices from the PCC when something has happened to people, whether it's good news or bad, where they wish to be left alone, or people's publicists say that to us, or people themselves write to us and say, "Look, we don't want to be interviewed, we don't want to say anything at the moment, please give us some space", and we comply with that. It's a straightforward, easy thing to do, and it means that everybody knows at the outset what the position is and that -- and you know what the parents' wishes are. It's helpful from everybody's point of view. We don't want to waste time and resources trying to speak to somebody who is reluctant to speak to us.

  • I understand --

  • I don't think it was entirely clear, when the information came to us, what the position was between Mr Grant and Tinglan Hong, and what his attitude was towards the birth and what her feelings were on that subject, but I don't really want to go into that.

  • Mr Grant made it clear that the relationship between him and Ms Hong had ended, hadn't he?

  • He said -- he didn't say it had started. He said it was a fleeting relationship, whatever that is.

  • I think you're beginning to spar with me a bit.

  • I don't mean to do that, Mr Jay.

  • He made it clear that there had been a relationship, I'm not going to argue about what the word "fleeting" means, but the relationship had ended, hadn't it?

  • Now, Mr Grant could not therefore speak for the interests of Ms Hong, could he?

  • Well, he could do. He was, after all, the father of the child. He could easily have spoken to the media and said, "Please, she doesn't wish to say anything, neither do I".

  • But in the absence of him purporting to speak on behalf of Ms Hong, which he did not, the position surely is that Ms Hong has her right of privacy under Article 8 and whatever?

  • And the presumption must be that she should be left alone?

  • Actually, she also has her rights of freedom of expression. She has her right to talk if she wishes to do so.

  • Well, that's --

  • No, this is a serious point. Article 10 hasn't featured much in the discussions --

  • Yes, but one could turn that against you, that that right was precisely the right that she did not want to exercise. Mr Grant might have been able to speak on her behalf if Ms Hong had instructed Mr Grant to do so, but you had no evidence that he had, and so the presumption is that she should have been left alone. Isn't that the correct analysis?

  • I don't agree that there's a presumption, no. But in any event, this statement sets out that we withdrew -- as you know from Mr Silva's evidence this morning, we withdrew our photographer and we didn't continue to pursue her.

  • But there were three further attempts to speak to her on the phone, weren't there? This is paragraphs 12, 13 and 14 --

  • This was after the confirmation of the birth, yes.

  • Then we know what happened outside her home, since we've heard evidence about it now from a number of sources.

  • And that evidence, it's not for me to say, is largely convergent. The position is certainly by the second day there was a scrum outside her home, wasn't there?

  • Well, our evidence is that our reporter was instructed by the news editor to keep a distance from the house to observe what happened and when Mr Grant appealed to the media to leave, she conveyed that to the news editor, who instructed her to leave, which she did and she didn't return to the property.

  • I think the key point, and I've probably already covered this with you, is whether photographers and reporters should have been there in the first place, that's to say physically outside her home, given that the presumptive position was, or at least might have been, that she had a right of privacy, but I don't think we need revisit that point.

    Can I move on to paragraph 17, if I may.

    The first point is the leaking of the visit by the Portland. Are you with me on that?

  • Yes, Mr Grant's evidence.

  • Let's assume that you're right, or rather the evidence you have for us is right -- this is paragraph 9 -- that the Mail reporter was informed by the Westminster Register Office that a child was born to Sophie Hong -- that's obviously the false name, I suppose -- at the Portland Hospital on 26 September 2011. Of course, that information, self-evidently, was not available to Mr Grant, was it?

  • The information which we see in paragraph 9. He wouldn't have known that, would he?

  • The Westminster Register Office?

  • No, but he might have known that she'd registered into the hospital under the name of Sophie Hong.

  • That's precisely the point he's making. He's saying, "Look, there's a bit of a coincidence here. Ms Hong registers herself at the hospital under a false name, that's Sophie Hong, that's not her name, and here it is the Daily Mail know about that. Therefore, putting two and two together, it's not entirely unrealistic for him to say there must have been a leak at the hospital. That's a reasonable inference, isn't it?

  • But this is our answer, saying -- explaining that that is not the basis of our knowledge.

  • I think you miss the point there, Ms Hartley, that you've been able to demonstrate, assuming paragraph 9 is correct, which we can do for these purposes, that in fact the information came not from the hospital but from the Westminster Register Office. Now, that is something that Mr Grant simply could not have known about, but given that he did not know about it, it wasn't unreasonable for him to say, indeed a perfectly fair inference, that it must have been a leak by the Portland Hospital. It's wholly sensible, I must say, on his behalf. Don't you agree with that at least as a piece of logic?

  • It's a piece of logic, yes.

  • It's more than that. Without knowing the truth, namely that the information had been obtained from the Westminster Register Office, it's the only possible inference that there had been a leak from the hospital, don't you agree?

  • But if this is designed, though, to address what we've said about the mendacious smears --

  • -- I think that the anger about the allegations relates to the issue of phone hacking. This part of the statement is dealing with an issue he's raised while giving evidence and is simply designed to set out what our position is on it.

  • You keep on saying "our position". All I'm seeking to do is show that Mr Grant, in this respect, reached a wholly reasonable and fair conclusion inferentially. It is true that his inference may be wrong if you add to the cocktail a fact which he did not know, indeed none of us knew until you told us, but on the information available to him it was entirely reasonable for him to say what he did, wasn't it?

  • Yes, but equally, if Mr Grant had put some of this to us earlier, we could have explained the circumstances to him.

  • Let's take five minutes. I'm just interested also in the fact that although the record may be public, whether information passed by the hospital to the clinic is public.

  • The hospital to the registry office.

  • Sorry, the hospital to the registry office is public. Because if it isn't, it would be rather interesting to know how the information is obtained. None of this is going to be definitive, it's only the extent to which it goes to one of the issues that I am thinking about, which of course in the context of this example is attack and defence. All right, we'll have five minutes.

  • (A short break)

  • May we move on to 17.2, where we're dealing with the American publicist on a phone number she famously keeps private. You say:

    "The mobile phone number of publicist Ms Leslee Dart is well-known, as one might expect, given she is a publicist. Mr Todd was given the number by a contact who he has known for many years and has regular contact with US entertainment agents and publicists."

    Do we know when Mr Todd was given that number?

  • I'm not quite sure why you say on the one hand the phone number is well-known, and on the other hand Mr Todd had to be given the number by a contact?

  • Well, because he may not have had it personally, but the evidence was that this is a number she famously keeps private, and this is simply saying it's not a number that is kept private, it's one that is well-known, but Mr Todd himself obviously didn't have it.

  • Right. How do you know, if I may say so, that her number is well-known?

  • This is the information I've been provided.

  • By the managing editors and by Mr Todd in connection with the preparation of this witness statement.

  • So that might be Mr Todd speaking to somebody else?

  • There have been a number of discussions between our legal team and the journalists in relation to these facts. But I'm happy to provide further information on this, if that would assist.

  • Paragraph 17.3. This deals with the reluctance to publish, and Mr Grant surmising that the reluctance was based on the fact that the information may have been obtained unethically or illegally.

  • You say that isn't right, it was entirely because you wanted confirmation that Mr Grant was the father of the child, and that's why you held off?

  • Let's assume that's right, that you held off for that reason. I think the question is more whether Mr Grant was wrong to harbour the suspicion, and after all it was only a suspicion, that he did. Do you see the point?

  • This section of my witness statement dealing with Mr Grant's evidence is simply saying that on our evidence, his evidence contains a number of significant inaccuracies, and that is the purpose of these paragraphs, to say what in our view those inaccuracies are, based upon the facts from our journalists.

  • It's not that it's inaccurate, it's that his understanding is incomplete, because if one has already premised that he could conclude that information had been obtained from the hospital, then he might very well go on to think that your reluctance to print is based on the way in which you got the information. You then say, "No, that's not right, because this is the reason"?

  • And we're investigating here, if that's not putting it too high, Mr Grant's state of mind and his suspicion. We know the legal expression the state of a man's mind is as much a state of fact as the state of his digestion. You cannot demonstrate, can you, that Mr Grant's suspicion is incorrect in any way?

  • But Mr Grant's evidence was, I think, admitted by him to be speculation when he gave evidence, wasn't it?

  • What I'm simply trying to do is put the facts before the Inquiry that we have got from our journalists.

  • You are slightly twisting his evidence again, and this is relevant to mendacious smear, that in answer to some of my questions, when we were dealing with the phone hacking issue, the plummy-voiced voicemail, I think Mr Grant fairly agreed that the inference he was arriving at was speculative, but it was that, if I may say so, which then prompted the Daily Mail to say it was a mendacious smear, which some would say, turning the point against you, was going miles too far, given that Mr Grant wasn't doing more in relation to phone hacking than to share his speculation with us. Do you see that point?

  • The word "mendacious" meaning "deliberately false", and that's the only reason we've really been looking at all this.

  • I'm sorry to interrupt, if I may, at the moment. Is it possible for me just to isolate the issues which I understand and my clients understand were relevant in providing this evidence? Or would you prefer I do that at the end?

    My concern is that there was an allegation of phone hacking which was made by Mr Grant. That was one matter we were keen to provide evidence on.

  • The second was the conduct and explaining how Daily Mail journalists behaved, whether they behaved ethically or not, with regard to events prior to writing anything about the birth of his child. And the third was, and this is entirely a matter for you, whether the response of the Daily Mail to the very serious allegation of phone hacking made by Mr Grant, a man of international reputation, was in any way improper. Those are the three issues, with respect, that I'd understood we were looking at.

  • Yes. The last of those three is whether it is fair to characterise the evidence that Mr Grant gave and the way that he gave it as "knowingly dishonest", and the only relevance of it is not to reach findings of fact about any number of peripheral issues, but the extent to which that itself impacts on the way the press behaves, not specifically -- well, in this regard it is specifically your clients, but it's actually going to the wider question. I'm only ultimately concerned with the wider question.

    I have no concern about the way in which Ms Hartley responds to each of the facts. They may be right, they may be wrong, I might have to think about it or not, and it's entirely right, as far as I'm concerned, that she should be able to take the sentences one by one and deal with them on the facts as her investigations reveal. But the question is whether all this permits a legitimate inference of deliberate dishonesty, which is equally a very serious allegation to make about anybody giving evidence on oath.

  • Well, all those three issues I quite agree. It will be the subject of submissions and for you, sir, to make a finding.

  • It will indeed and I will indeed.

  • Yes. May I just say while I'm on my feet that I accept responsibility for the way in which this investigation has been put before you. The reason it's been done in this way and not put in or call or seek to call nine journalists is because on many occasions, sir, you have said that you are not interested in the detail, you are not deciding fine points of detail, and we felt it is of more assistance to give you a detailed overview of this investigation. If you require anything further, if you require statements from any journalists that would assist you, we're happy to provide them but this is the most economic way that we felt it possible and responsible to put in front of you.

  • I understand that, but you will equally understand why at the moment I am quite interested in the whole concept of the extent to which I should be relying on hearsay, and I don't need to explain to you why that is not inapposite this week.

  • Indeed. Well, we've had a lot of hearsay in the Inquiry. Some triple hearsay.

  • That's the point.

    Yes, Mr Jay.

  • If I can move on, the point's been made on 17.3.

    17.4, I think this is more a matter for comment. Mr Grant has used the adverb "repeatedly". I think we have counted six occasions, six before and six after the birth of the child. Is that right?

  • I don't think that is right.

  • Well, it's in your statement.

  • And the question is does that six and six bear the adverb "repeatedly" and that's really a matter of comment.

    17.5, again it's a matter of comment, isn't it? A very determined effort to grossly intrude upon Tinglan's privacy. This was the attendance of journalists and a photographer outside her home. Again, we needn't debate that; we can see what the evidence is.

    But the final point I don't think we have covered, 17.6, the ex-boyfriend, who Mr Grant said was paid £125,000 to sell private pictures of Ms Hong.

    You tell us that the former boyfriend approached the Mail on Sunday through an intermediary. He offered the Mail on Sunday an interview. There was no pressure. The payment was less than 15 per cent of £125,000; is that right?

  • If that's right, Mr Grant's figure is wrong, but he may have got that himself from hearsay or multiple hearsay, so need not be necessarily criticised for that.

  • And the title. He said it was the Daily Mail.

  • Yes. Does that matter much?

  • We come now to the plummy-voice story. We read your statement, but can I start at paragraph 22. The source of the story, okay, a confidential contact of Sharon Feinstein, a freelance journalist who works with the diary editor of the Mail on Sunday, Katie Nicholl. That contact provided the information contained in the story. A trusted source of Ms Feinstein, who spoke regularly to Jemima Khan.

    Can we be clear about this. Is that source are you saying within Jemima Khan's circle of friends or is she an acquaintance or something else? Do we know?

  • I don't know. I don't know any more detail about the source.

  • I think the Inquiry was told or rather a statement was put on the Mail's website on the very day Mr Grant gave evidence to this effect:

    "The information came from a freelance journalist who had been told by a source who was regularly speaking to Jemima Khan."

    Is that right?

  • This is what my statement also says.

  • Fair enough. But can I just analyse with you the inference Mr Grant has drawn, namely -- he accepts it's speculative -- the allegation of voicemail interception. You say it makes no sense because if you look at the facts you have on the one hand a woman with a plummy voice who is a middle-aged PA to a friend of his in LA, and on the other hand, a person with whom he was suspected of having the affair, who was young and glamorous. Do I have it right?

  • Can we try and analyse this, though, from Mr Grant's perspective? What he knows is that someone with a plummy voice has been speaking to him on the phone, or leaving messages on his voicemail. Is that correct?

  • Well, what is odd about this is that in the original claim brought against the Mail on Sunday, which was settled with the agreement of the statement in open court, Mr Grant or his solicitors denied that there was any plummy-voiced woman, and said the story was entirely false.

  • You say in paragraph 24 -- let me just remind myself where you deal with this in your statement. Yes, it's paragraph 20, my apologies. This was the agreed statement read out in court:

    "Mr Grant's lawyer said that Mr Grant does not know of a woman from Warner Brothers matching this description, let alone was he conducting a flirtation with her. As far as he is aware, she simply does not exist."

    But what is the description that is being referred to? It might be said it was the description of a glamorous young film executive, mightn't it?

  • I think in correspondence, which I haven't checked recently before giving evidence today, it was denied that he knew a plummy-voiced woman of that description.

  • Well, there are two women here. There's a plummy-voiced woman who is described as being middle aged --

  • And we don't know what she looks like. And we have a young, glamorous executive. I think all that for the moment, from paragraph 20, all that we know is Mr Grant was saying he doesn't know of a woman from Warner Brothers who matches the glamorous young film executive description. Is that not the case?

  • I think he had denied knowing a plummy-voiced woman. I'll have to dig out the correspondence to check.

  • You can't be sure about that at the moment, can you?

  • I would want to check rather than say something which may be inaccurate.

  • Even if we have two different women, there's one plummy-voiced woman, middle-aged, one younger woman, glamorous, et cetera, from Mr Grant's perspective the person with whom he's allegedly having an affair, according to the Mail's story, was a woman with a plummy voice; is that right?

  • So isn't he entitled to think, at least on a speculative basis, that the Mail might have been hacking into his voicemail messages on this basis: that they linked that evidence with other evidence they had or allegedly had of a younger woman and united the two pieces of evidence into one person? Do you see that?

  • I don't think that that's a reasonable inference. If you look at the detail in the piece, it's not the sort of detail that you would have got from a voicemail interception. There is detail in there which has come from a source and that to me indicates that this isn't something -- it wasn't a story which simply said that there was a woman with a plummy voice who was -- you know, there was more to it than that.

  • I understand that. It's not just -- one has to enter the mind of Mr Grant, and also predicate this, that he is thinking back, when he gave evidence on 21 November, to something which had happened four years earlier. He, of course, could not remember the precise content of phone calls he'd had with the plummy-voiced woman or the nature of the messages she'd left on his voicemail, but it's possibly, isn't it, from his perspective to say this, that he thought, he surmised that the plummy-voiced woman might have left flirtatious messages on his voicemail, but the messages contained content and it was those messages that you were hacking into? True, a piece of speculation, but from his perspective, a possibility. Would you not accept that?

  • But I don't think he said that. His evidence wasn't that there was that sort of detail in his voicemail messages.

  • You know, this is -- what you're talking about is whether he was wilfully blind to the facts, if that's what we're saying, or whether he was reckless as to the truth. I think that to make a very serious allegation against us on something as thin as this was not something that should have been done.

  • Now you're giving opinion evidence about this.

  • I'm sorry, but you're asking me to comment on a statement which was issued by my group, not by me.

  • I'm asking you, if I may say so, to attempt a leap of imagination, and I don't mean that patronisingly, although it did sound like it, to enter into Mr Grant's thought process, and entering into his thought process merely to accept that as a piece of speculation, as he accepted it was, under some pressure from me, as a piece of speculation it wasn't an entirely unreasonable speculation because we had the plummy voice, he knew there was a woman out there with a plummy voice; she might have left messages on his voicemail, she tended to speak in a jokey and flirtatious fashion, therefore, he says, "Wow, the Mail must have hacked into that".

    If he was putting that forward as a statement of hard fact, of course he would probably be going too far, but as a piece of speculation, that wasn't unreasonable, was it?

  • But he's used that to accuse our group of phone hacking, which is -- I'm sorry, but it is a very serious thing to do.

  • So you respond by accusing him of perjury?

  • We respond by defending ourselves in relation to that.

  • No. As I think I said immediately, defending yourself, saying, "This is wrong", wouldn't have caused me to be in the remotest bit concerned. You're entitled to say, "He's got it wrong", absolutely. But it's the language you use in doing so that actually is what's caused me to be concerned. Nothing more. That you mount a vigorous, to borrow Mr Wright's word, defence of the position of Associated, you're absolutely entitled to do.

  • And to that extent, your analysis I've got and understood.

  • But you will understand the additional point and the justification for looking at it. That's all.

  • Sir, I wasn't going to ask Ms Hartley questions for the reasons that Mr Jay explained at the outset, but I did want to say this. Given that Ms Hartley was prepared to offer her personal view about the mendacious smear allegation but cannot explain how the newspaper came to actually accuse Mr Grant on the basis of no evidence at all, it's clearly for Mr Dacre now to deal with how this mendacious smear allegation was made and, as we understand it, he is arriving at the Inquiry on 6 February.

    There are obviously a number of matters that we do want to put to Associated Newspapers. We've waited eight weeks for them to provide a response on Plummygate and what we have so far is hearsay and double hearsay at that.

  • Yes, but I take the point that Mr Caplan makes about the number of people we want to be dealing with this.

  • Sir, I understand that, but Mr Grant and Ms Khan gave evidence about this matter. They have been accused of lying. I say they have both been accused of lying, because the mendacious smear allegation was persisted in on the website after Ms Khan had denied that she could possibly have been the source, given that the first time she was aware of this was when she read it herself in the Daily Mail.

  • Yes. I'm not sure we've yet put that statement in to the Inquiry, in which case --

  • It was put in on 28 November.

  • No, you misunderstand me. Of course we've got the statement, I'm sure it's been disclosed, but I don't think it's formally been put into the record.

  • As I understand it, it was. I may be corrected on that. Of course, I did say at the time that Ms Khan was prepared to come and give evidence --

  • As she still remains prepared to do.

  • I'm sure so and I don't anticipate it's likely to be necessary. That's my view. I think it would be sufficient for her statement simply to enter the record.

  • Sir, I would ask that the journalists come to give evidence on the 6th, as Mr Dacre will be doing, so that they can say on oath the source of the story as Ms Hartley, the faithful lawyer, is suggesting.

  • Hang on, let me find out what you're asking for. You're not suggesting that all the journalists who have obviously contributed to Ms Hartley's statement should come; you're merely talking about -- are you merely talking about Sharon Feinstein?

  • And Katie Nicholl, as I understand it, yes.

  • Well -- all right. I'll think about that. Thank you.

    Thank you.

  • That's it for today. I was hoping for a shorter day, but ...

  • Well, there you are.

    All right. Tomorrow morning at 10 am. Thank you all very much.

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