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

  • May I? May I also raise one other matter that Mr Jay's mentioned to you, which is on behalf of News International. We would greatly appreciate an opportunity to make a short opening statement on Module 3 on Monday morning. Mr Jay's opening of this module was focused to a very large extent on News International and its conduct and that was, as one would expect, widely reported, and we would be very grateful indeed for the opportunity to make a short opening statement.

  • Yes. In principle, I have no objection to that, Mr White, except I'd need to know where it was going to get me to. I mean, I did ask some weeks ago whether anybody wanted to make opening statements and indeed I think at one stage the Guardian wanted to, and then decided that it wasn't necessary. I'm just a little bit troubled that once I open the door again, then everybody will decide that it's about time they marched through. In one sense, I don't mind that either, except that I have a timetable to deliver and I'm going to deliver it.

    Have you discussed that with any of your fellow core participants?

  • I haven't, but may I make this observation: that there was little attention on anybody else and their interaction with politicians in Mr Jay's opening, and therefore I suspect that our desire to say something in response may be somewhat more pressing than other parties'.

  • I understand the point. All right, briefly you have that opportunity.

  • Thank you very much.

    May I then turn to Mr Sherborne's application on Wednesday afternoon? Transcript pages 74 to 5, Mr Sherborne sought a direction. It was be a application of which there had been no advance warning.

  • Yes, I know. That's one of the reasons why I was very happy to give everybody the chance to think about it. I'm the only one that should get things thrown at them without knowledge. You should at least have some forewarning. It's one of the perils of judicial life. Yes?

  • It's a very minor grumble. The application was, as I understand it, for a direction that the newspaper core participants should answer two questions in relation to the Operation Motorman data, if I can use that compendious term. The first we question was what happened to the journalists who used Mr Whittamore's services, in terms of whether they were disciplined or any other action. The second was what steps had been taken to identify whether any information from that data is still being retained or used, and the closing words Mr Sherborne used were: "If it is still being used, this must stop."

    May I say first of all we were surprised that that application was made more than five months after News International filed its very detailed evidence in relation to the Operation Motorman data. That was in the second witness statement of Pia Sarma, the editorial legal director of the Times, which was read into the record of the Inquiry without objection or response from Mr Sherborne's clients, I think five months and two days ago.

    The first question, what happens to the journalist, seems to us to break down logically into two questions in fact. Firstly, what happened to them back in 2006, when the report "What price privacy now?" was published, and secondly, what might have happened to them at any later stage.

    Sir, the first question or the first part that, namely what happened in 2006, proceeds, I think it's necessary to remind the Inquiry, on a false premise. The false premise is that the individual journalists in question were either identified or identifiable from "What price privacy now?". In fact, that report, when published in December 2006, simply contained a table which set out names of publications --

  • So they couldn't do anything then and indeed they contended that they were wrongly identified anyway. At least certain of the entries in relation to clients of yours were challenged.

  • So I understand that. Yes?

  • You have in mind the Sunday Times was said to have 52 transactions involving seven journalists. When we asked who those were and what they were, it was "corrected" to four transactions involving one journalist.

    But we also expressly asked for the information to enable us to investigate it and were refused it, and all that is set out in detail in Pia Sarma's witness statement. The MOD reference is MOD10049133, particularly at paragraph 12. I don't think we need to get it up on the screen. But we couldn't do anything in 2006.

    Ms Sarma's witness statement also addresses whether we could have done anything from our own records to try and see whether we could match the table and she explains later in the witness statement, I think at paragraph 16, why, given the age of the data -- which, as you may recall, by December 2006 was between about four and seven years old already -- that simply wasn't practical.

  • I remember. I had forgotten, but I remember now, yes.

  • All of what I'm saying is essentially by way much reminder. Ms Sarma also explained why the unidentified journalists may well have not have been aware of any illegality and what I did want to remind you of was that the vast majority of the Operation Motorman data in relation to my clients consisted simply of ex-directory telephone numbers and our evidence was that those were obtainable through legitimate sources. Indeed, we exhibited some websites providing exactly that service which continue to operate, and one of them claims with the approval of the ICO.

    So that's one point about whether there was any actual wrongdoing disclosed even against the unidentified journalists but Ms Sarma went further and explained that without knowing the particular transaction, it is was impossible to see whether there was a public interest defence -- an apparent offence or prima facie offence -- under section 55. She did so not in the abstract but by exhibiting at PS6 certain stories which we linked to particular lines in the data, where we said there was a public interest. It's a confidential exhibit but it's in evidence. We didn't do the exercise for every line but doing it for some was an indication of how difficult it is to oversimplify the problem and suggest that any journalist using the services should have been disciplined.

    Then one asks: should we have done something at a later date? I suppose the first question is when, but let us take the example of you when all the participants obtained, through the Inquiry, the relevant data. The position at that stage, sir, is the transactions were by then at least nine years old and since some of them were probably much older, it would have been difficult at that stage to look into them. More difficult.

    More importantly, I think we had only one or perhaps two journalists named in the data still in employment at any of our titles. But we also took the view that to take disciplinary action against employees for transactions more than nine years old would have been completely indefensible in employment law terms and they were far too stale to start disciplining people.

    There's a further point that we wanted to emphasise which is that both the former Information Commissioner, Mr Thomas, and the present one, Mr Graham, confirmed at your seminar on 12 October last year, and again in their evidence, that they didn't perceive any problem of the press purchasing illegally obtained information had persisted after 2006. So the problem those gentlemen both identified and the earlier one brought out in the report they saw as historical.

    In those circumstances, we suggest that disciplinary action, either in 2006 or in 2011, wasn't actually realistic against individual journalists and exploring the issue of why it did or didn't happen won't assist your Inquiry at all.

    As far as the second question is concerned -- namely, the retention and possible current processing of the data -- the first point is similar to the one I have been putting forward, namely that in 2006 we couldn't do anything because we didn't know what the data was. By 2011, the data is very old. It's got to be at least nine years old. It would be a huge effort, a disproportionate effort, to try and identify what in most cases is this low grade personal information, ex-directory numbers, see if they're on the systems separately from their presence on the systems through other avenues, and again, we question how much you'll be assisted by exploring that issue, certainly now that we're well downstream from Module 1.

    There's a final point I wanted to make, which is a harder edged point. You have a lot on your plate in this Inquiry, as you say from time to time, and I certainly recognise it myself. There are other officials under the Data Protection Act who have the duty of seeing whether our current processing is lawful, fair, appropriate. Any individual who is concerned can make a complaint under the Data Processing Act. The High Court as jurisdiction to rule. The ICO has jurisdiction to rule. Fortunately, you may think, you don't.

    If our current processing, such as it is, is lawful under the Data Processing Act, the press can't be criticised for any retention and continuing processing and I'd respectfully invite you to put aside this invitation to add yet more to your workload, largely because it won't take you anywhere but also for the reasons I've given.

  • Yes, I understand. Thank you very much. Right.

  • In cricket I'd be called the nightwatchman.

  • I would never describe you in that way, Mr Browne. Other ways, yes, but not that way.

  • The first point I want to make -- and I have five -- is the issue, as Mr White says, is now historical. The search warrant which seized the Whittamore documents was executed as long ago as 8 March 2003. Subsequently, as we heard from Mr Gilmour, the seven journalists are interviewed under caution. None of them were ever arrested. Within a matter of, weeks on 6 March 2004, the Crown Prosecution Service had concluded that there was insufficient evidence to charge any of them. Mr Gilmour explained in his oral evidence that that was because they couldn't establish guilty knowledge on the part of any one of the journalists.

    You'll recall from exhibit RJT49 to Mr Thomas' first witness statement that when Mr Whittamore and two others appeared in front of Judge Samuels at Blackfriars Crown Court, the judge made it clear that there was no halfway house in the matter and the presumption of innocence applied in relation to each of the journalists in respect of whom a decision had been taken that there was insufficient evidence to charge them.

    Secondly -- I can take this quickly too; it's a point made by Mr White -- such alleged misbehaviour as had taken place prior to 2006 appears to have ceased in the view of not merely the current Information Commissioner but also his predecessor, Mr Thomas, and indeed you'll recall that in your ruling at the end of last year on access to the evidence submitted by Alexander Owens, you said at paragraph 3 that there was no basis for suggesting that the conduct that had given rise to Operation Motorman had been repeated, and doubtless you derived that from two passages in Mr Thomas' first witness statement at paragraphs 44 and 46, where he said that what he was getting from his team was that press misconduct of the type that had led to the two ICO reports in the second half of 2006 had largely ceased thereafter and that the allegations that had surfaced since July 2011 appeared to predate 2006. Mr Thomas confirmed all of that when cross-examine by Mr Caplan, Day 14, page 117.

    More recently -- and we can hand up a copy of this if it is necessary -- Mr Graham, the current Information Commissioner, told the Commons Justice Committee in September last year that so far as the ICO's office was concerned, the activities of the press recently have not particularly come to their attention and the concern that he had about Section 55 was really not very much to do with the press as opposed to those in the financial services sector.

    Thirdly, when the Inquiry comes to consider culture practices and ethics of the press in relation to my client, a relevant consideration will no doubt be that the editors of the Daily and Sunday Mirror accepted in cross-examination by Mr Barr that given the sheer volume of requests, it would be surprising if every request to Mr Whittamore by their journalists was covered by a public interest defence. That, we say, is really as far as you need to go, and when the question arose on day 37 during the evidence of Mr Dacre of much the same question, you indicated that what interested you and the Inquiry was whether it was accepted that there was a possibility that some the inquiries could not be justified. If I can just quote a sentence from what you said. At page 56 of Day 37 in the afternoon, you said this:

    "I'm not concerned to ask how many or who because that's a detail which, for the purposes of my Inquiry, I don't believe I need to go into."

    You said something very similar in response to Mr Sherborne on Wednesday afternoon at page 76 when you said that the purpose of the Inquiry cannot be to answer all the factual issues and you said this:

    "It would be quite impossible to look at ten years of journalistic endeavour across a wide range of titles and do balanced and fair justice to individual incidents."

    Fourth point --

  • Sometimes I say things which appeal to me even now.

  • That comes as much comfort.

  • I'm not so sure, Mr Brown.

  • I think (inaudible) is the adjective that comes into my mind.

    Fourthly, the requests which Mr Sherborne made, which are effectively to reopen and extend the ambit of Module 1, come far, far too late in the day. I had to ask somebody to tell me but I had to be reminded that hearings in Module 1 ended as long ago as Thursday, 9 February, and I wish Mr Sherborne was here so I didn't have to say this behind his back, but it really is disingenuous to suggest, as he did when he opened this application, that it was made in the light of DCI Gilmour's evidence. The detective chief inspector had said nothing in his oral evidence or in his witness statement to suggest, for example, that offending journalists had been promoted to senior positions, a point that Mr Sherborne wishes to pursue in the first set of questions.

  • You haven't said it behind his back. He'll read it.

  • Good. He may even be watching me live.

    Indeed, just reverting to DCI Gilmour, he was at pains not to mention the names of the journalists questioned, in accordance not only with your self-denying ordinance but also the stance adopted by Mr Thomas and the ICO. You'll recall that Mr Thomas, in his second witness statement, said that the ICO had always regarded the names as personal data and he emphasised the sensitive nature of that data by reason of the fact that the names had been obtained by reason of the exercise of the search warrant in March 2004, the journalists had not been prosecuted, let alone convicted and they'd had no chance to defend themselves.

    The other point in relation to delay is this. Back on 13 March 2012 at the beginning of Day 49 in the morning, you, sir, made a ruling declining to make public the submissions received in private on 2 December last year in relation to Mr Owens' evidence and you added to that, as one sees between pages 2 and 3 of Day 49 in the morning, that if Mr Sherborne wished to argue that it was appropriate that the Inquiry should publish the documents seized in Operation Motorman in 2003, you would set aside time formally and in public to consider the issue, but in the same ruling, having emphasised yet again that the Inquiry was not concerned with individual conduct, you said it would be unfair to name the reporters identified in the Whittamore records seized during Operation Motorman.

    Finally on this issue, the sheer volume of information would make answering these enquiries impossibly burdensome at any time, let alone so late in the day. There are, on any footing, a large number of transactions, a large number of journalists who would have to be investigated, and there is no easy way into that process because there's no database as such of the information from the Whittamore documents.

    My fifth and final point, turning to the detail of the questions as applicable to Trinity Mirror --

  • I've got up to six points, Mr Browne, but never mind. Yes.

    I found I couldn't count yesterday, I counted the wrong number of families, as somebody was quick to correct me. Yes?

  • First of all, the group in questions one, we already know the answers to the majority of those questions. They were covered in the evidence of the editors and of Sly Bailey, our chief executive, on 16 January. No one at the Mirror was fired, no one was disciplined, and just to summarise very shortly, what Mrs Bailey said was that in 2006, following the publication of the ICO report "What price privacy?", Trinity Mirror had adopted what she described as a forward-looking approach, not declaring an amnesty and making very, very, very clear, she said, what was acceptable and what was completely and absolutely unacceptable. If, back then in January, there had been relevant additional questions to ask, they should have been submitted then.

    In relation to the last of the four subsidiary questions in question one, namely are the journalists still working for the newspaper and even being appropriated to senior positions, the Inquiry's consistent approach, rightly in our submission, has been not to identify individual journalists.

    In relation to question 2, the procedure of this Inquiry is, we submit, not a Trojan horse to fish for disclosure which cannot be obtained by other means. I think that's a terrible mixed metaphor, but I hope my meaning is clear. You will doubtless be aware that the ICO has established, I believe since the commencement of this Inquiry, a fast-track service whereby individuals can find out, by means of a subject access request under the DPA, if the Whittamore notebooks contain any information about them. That is route that is open, and there was certainly nothing in Mr Gilmour's evidence to suggest that information was still being retained, let alone used, nine years after it had been seized. Indeed, very much the contrary, in the light of what Mr Thomas and Mr Graham have said.

    My final, final point is this. Following the hearing on 2 December last year, the data sticks with the Whittamore information on them were released to the core participants, including Mr Sherborne and his client. They were released precisely so that, having analysed them, they could make submissions on the contents. It appears that that is an option that they have declined to take. They have chosen not to do so, and now, very, very late in the day, nearly six months later, they adopt this procedure, which will involve going back over Module 1 and involve a massive exercise both for the participants, if they are ordered to undertake it, but also for the Inquiry subsequently to analyse it. In my submission, it is a simply hopeless application.

  • I adopt all of that. I don't know whether I can usefully add anything, but I think it's all been said, if I may say so.

  • Thank you very much. I'll let Mr Sherborne read it all and at some stage when we next have a break and I feel we need to do some more work, he'll get the chance to respond.

    Anybody else want to say anything else on this topic?

    Thank you very much. 10 o'clock on Monday morning.

  • (The hearing adjourned until 10 o'clock on Monday, 14 May 2012)