As everyone knows and no doubt still remembers, this Inquiry was set up in July this year following an extraordinary series of revelations and events, culminating in the demise of an iconic print title and high profile resignations at the top of the Met police.
The immediate trigger of the setting up of this Inquiry, the tipping point, was the revelation that Milly Dowler's voicemail was accessed and voicemails deleted, causing family and friends to cling to the hope that she might still be alive.
Although the individual or individuals who deleted Milly's voicemail messages back in 2002 might not have realised at the time what the consequences might be in terms of raising false hopes, public opinion was rightly sickened by the callousness and cynicism of the perpetrators.
Within two days of these revelations, the Prime Minister announced to Parliament that an Inquiry would be set up. Seven days later came the announcement of your appointment, and here we are today, embarking on a key stage in the serious and important business of discharging what, on any view, are wide-ranging and challenging terms of reference.
This Inquiry is unprecedentedly demanding in a number of obvious and significant respects. First, the breadth of the terms of reference: an Inquiry into the culture, practices and ethics of the press. I'll attempt to analyse those concepts in a few minutes' time, but it is obvious that these parameters could scarcely be broader or more open-textured.
You are required to consider and, if necessary, address a broad spectrum of behaviours and practices, embracing no doubt the good at one end of the spectrum to the frankly criminal at the other end, with unethical practices somewhere in between.
Phone hacking is safely located at the spectrum end of worst practice, since it is illegal and can never be justified in terms of the criminal law by a claim that the public interest is being served. To be clear, phone hacking is almost inevitably a gross breach of ethical standards as well, and as it happens, we are not aware of a single example of the recent phone hacking about which complaint has been made that can even start to be justified on public interest grounds.
However, it should be made absolutely clear that the evidence before this Inquiry will not be limited to the issue of phone hacking. There are many other examples of unethical and/or illegal practices which we will investigate.
Secondly, the scale of public expectations. It should not be forgotten that the Inquiry is established under statutory powers that exercises public functions and is paid for by the taxpayer. The public is therefore entitled to expect a return on its investment. These expectations are all entirely reasonable and we will endeavour to meet them all.
However, we are working within extremely tight timescales and the subject matter is truly vast. We will cover the ground as thoroughly as we can, but this is not a situation where we can honestly say that no stone will be left unturned, since if we were to adopt that approach, we would still be here in three years' time.
Thirdly -- and I'm now returning to the terms of reference -- the cart has been placed very much before the horse. By that, I mean that in an ideal world, which is certainly not the planet we inhabit, part two of the Inquiry should really be taking place before part one. The typical sequencing of public enquiries is that the detailed forensic examination of the underlying evidence takes place before consideration is given to the bigger picture and the search for themes, patterns, broken systems and cultures, but the existence of the ongoing police investigation and the possibility of criminal prosecutions means that a detailed forensic examination cannot take place on a concurrent basis without bearing in mind the public interest in the proper conduct of the police's work.
There are two points here that I would wish to emphasise, first so that the public fully understands the practicalities in the light of the legal position. This Inquiry cannot compel witnesses to answer questions which might incriminate themselves. It is public knowledge that the police have arrested at least 13 individuals who are therefore suspects in their investigation, and it is possible that they will arrest more.
The law affords these individuals considerable protections in line with their constitutional rights. To repeat, individuals cannot be compelled to answer questions within the scope of the privilege against self-incrimination and adverse inferences cannot be drawn if the privilege is invoked. Those reporting on this Inquiry are asked to continue to bear these principles in mind if any witness seeks to claim the protection of this privilege.
The second point which I'd like to emphasise is that this cart before the horse issue does not mean that the Inquiry will refrain from entering areas which are also the subject matter of the police investigation. When I come to analyse the terms of reference, I will explain that such a self-denying ordinance would not be the right approach.
In general terms, what we need to do in instances where our Inquiry does overlap with the police investigation is to ensure that we adduce an adequate body of evidence, some of it quite general, to enable you to provide a sufficient narrative of relevant culture, practices and ethics.
"Sufficient narrative" is likely to be a recurring theme as this Inquiry progresses. In one sense, the term may be question-begging, but it is useful nonetheless. Furthermore, there are many aspects of culture, practices and ethics which fall well outside the police investigation and where the Inquiry's focus can be as detailed or as general as it chooses.
I'm still explaining why this Inquiry is unprecedently demanding and I'm coming on to my fourth point, and it's a fairly obvious one. We are investigating the press root and branch, and we will therefore be investigating an extraordinarily powerful and articulate range of institutions which have considerable control over the way in which these proceedings are reported, commented on and analysed.
This power of the press may be one reason why politicians, at least arguably, have not been overly keen to take steps to call it into question, through fear that by doing so the press would withdraw support for those politicians or subject them to close personal scrutiny. If that analysis is right -- and I was careful to say "may" -- it might also be said that this Inquiry should have the self-same concerns, and conversely, the public may fear that this Inquiry might pull its punches for the self-same reasons.
I am, however, able to nip any such concerns in the bud for these reasons: in July, the setting up of this Inquiry enjoyed cross party support as well as the support of the devolved administrations. I should make it clear that the territorial scope of this Inquiry is not limited to England and Wales. Under section 3 of the Constitutional Reform Act 2005, government must respect the independence of the judiciary. Not merely is the judiciary independent of government; it is free from the sort of pressures which are capable of being applied by the press on government and politicians. The same applies to the independent bar. The free press will therefore report the proceedings of this Inquiry as they see fit, subject to pre-existing legal constraints, and the Inquiry will continue to discharge its public functions regardless of any crossfire.
But there are two further issues which may cast a shadow over the business of this Inquiry. First, the Inquiry's concern that journalists may be fearful of speaking out against their employers for fear of their jobs and careers. The Inquiry will no doubt receive evidence of good press culture, practices and ethics, and certainly should not assume this evidence is unreliable, but at the same time the Inquiry needs to hear all possible sides of the story. Those who have witnessed wrongdoing are encouraged to summon the moral courage to speak out. For its part, the Inquiry is willing to consider granting protective measures for whistleblowers with justified concerns.
Secondly, the press, both within this Inquiry room and outside it, possess highly articulate voices in favour of its interests. There's nothing wrong in that, save that the Inquiry must be vigilant to ensure that the loud voice of the press does not drown out the voices of other interested parties.
Thus far I've set out the challenges and the problems but I should not be interpreted as suggesting that they are insurmountable. I should say something about the role of counsel to the Inquiry so that it is made explicit. We are not prosecuting counsel or tasked with the duty of arguing any particular case or point of view. We are entirely neutral. Insofar as we may have opinions about a particular topic, we're going to keep these unexpressed.
The possibility that on rare occasions we might fail to keep to these very high standards cannot be overlooked, but to the extent that an errant opinion is ever expressed, that will be our opinion and not yours. No inferences can be drawn as to what you may be thinking.
We are here to ensure that all sides of the argument are represented and that the evidence advanced to the Inquiry in due course is presented in a fair and balanced manner. This is not to say that witnesses will not be thoroughly probed as appropriate. They will be. Additionally, we will take up lines of questioning suggested by the core participants and explore avenues suggested to us by your assessors, our own Internet and other researchers or whoever.
In short, we will call and probe the evidence in seeking out the truth. We're looking to establish both a sufficient and balanced narrative of the culture, practices and ethics of the press as a springboard for helping to devise practical and workable solutions which are proportionate to any problem that has been identified and which are likely to enjoy the confidence of the public.
These solutions will not necessarily have been the solutions which the press themselves would have devised had they been asked to devise them, but they will have to be workable in the real world and will need to reflect the technical realities both today and in the immediate future, most particularly the challenges posed by the Internet.
I've said that I will analyse the terms of reference. You are required to inquire into the culture, practices and ethics of the press. It may be helpful to take those three terms together.
We are looking at practices which may be widespread rather than isolated and sporadic, practices which may be widespread insofar as they are bad practices, may well flow from systems which are broken and/or from attitudes and mores which are dysfunctional. The more we may see patterns of behaviour and practices which are generic and the more widespread they are, the more it may be possible to infer the existence of broken systems, dysfunctional attitudes and mores, and overall the existence of a culture which tends to explain why these problems are occurring in the first place.
In most institutions, cultural problems of this nature will usually emanate from high up within the organisation, but this will not always be the case. They will not always be the product of a deliberate policy decision made by those with power within the organisation to make them. Sometimes the existence of a culture derives from the operation of more subtle and complex forces, from historical trends, from what is condoned and not stamped upon, leading to insidious evolution and perpetuation, from complacency leading to arrogance and purblindness. There is clearly a range of possibilities.
For the purposes of this Inquiry, it may neither be possible nor necessary to undertake an examination of these more subtle and complex forces. Let me make the point in this way: if in relation to a particular press institution, you were to reach the provisional conclusion that a practice or a range of practices were widespread, thematic or even endemic, it might not be too difficult to draw the inference that this practice or these practices stemmed from a culture which promoted or permitted their occurrence. Yet it might not matter whether the culture actively promoted the practice on the one hand or merely failed to prevent the practice occurring on the other. On either version, we have a cultural problem. We have systems which have failed and we have an organisational ethos which has contributed to the existence of illegal or and/or unethical practices.
If one sees evidence of institutional attempts to cover up past misdemeanours, it may be possible to draw the inference from such evidence that these past misdemeanours were systemic and the cover-up itself may be a different manifestation of the same cultural problem.
On the other hand, as you yourself have pointed out, it is obvious that specific illegal or clearly unethical conduct could indeed exemplify culture, practices or ethics either in a particular newsroom or more widely and it is an extremely important part of the picture. It is not, however, the only evidence that may be relevant to the background. Increased pressure on news room with reducing staff and tight financial constraints, the impact of 24/7 reporting and the immediate availability of news on the Internet, the use of casual or freelance staff and the pressure, whether expressly thrust upon them or impliedly felt by them, to name but a few issues that have been mentioned, may all constitute important elements of the wider picture.
Thus far I am conscious that my analysis is in danger of sounding somewhat abstract. It was deliberately so because in setting out the ground rules, I did not wish to deal with any particular factual situations through fear of appearing to pre-judge the issue.
In referring to the press as I have done, there is a danger of appearing to treat a series of separate organisations as if they were a single monolithic intuition. There may well be different cultures in different newspapers groups or in different sections of the press. Even if the Inquiry were to conclude that a culture existed in a particular newspaper, that would not mean that everyone working within that newspaper at the time was inevitably tarnished by it. The dangers of stereotyping are obvious and will be avoided.
Although the Inquiry will be testing the proposition that there may be cultural differences between tabloid, middle market and broadsheet newspapers, it will not be doing so in the light of any pre-conceived judgments about their respective systems. We start from a clean slate.
Issues may also be very different in relation to the regional titles. There, journalists feel that they are being tarred with the same brush as the national press, so confidence in them is being affected. Their focus is very much on their local communities whom they have to face day to day and who would react very adversely, as they sometimes do when the national press arrives, to breaches of ethical standards.
I'm not going to attempt any further definition of terms and I'm certainly not going to insult either you or anyone else by explaining what the word "ethics" means, save to this limited extent: conduct may be unethical because it is illegal. Very often, it is illegal because it is unethical. Conduct may also be unethical not because it is illegal but about because it violates an important human right or because it violates the code of practice designed to regulate behaviour. Finally, and more controversially, conduct may be unethical because most right-thinking people would hold that it was wrong, even if it was neither illegal or in violation of a relevant human right or current code of practice. This may well be a somewhat subjective area but if there is a sufficient moral consensus in support of change, the right course may well be to consider amendments to the relevant code of practice.
In order properly to investigate culture, practices and ethics, it may not be necessary to look into the fine detail, because the endeavour is to seek out systems and patterns of behaviour. In relation to phone hacking, delving into the detail may, as we've seen, clash with the police investigation. The approach, as I have said before, is likely to be macroscopic rather than microscopic. However, what level of magnification we choose to apply in any given instance will depend on our instinct, judgment and overall sense of the direction the Inquiry needs to take.
For reasons of convenience, you have decided to divide part one of the Inquiry into a number of modules. Module one concerns itself with the relationship between the press and the public, module two with the relationship between the pleasant and the police, module three with the relationship between the press and politicians, and in module four, we will be addressing the broader policy questions of what changes should be made to the regulatory system in order to address the findings of modules one to three.
No one is suggesting that these modules form self-contained packages. Clearly they do not, and we are dealing with a number of concentric circles. One constant theme, though, may be this: the alleged subterranean influences operated by the press on the democratic process but without full democratic accountability.
In practical terms, the overlap between the modules may mean that exceptionally, witnesses called in module one may have to return for module three. On the other hand, a number of module three witnesses will also be relevant to module one. The principal focus of these opening submissions will be module one, but I will sketch out the likely scope and the subject matter of modules two and three before I conclude.
As you know, many of the issues likely to inhabit part one of this Inquiry were aired during the course of the three seminars which took place in early October. I will seek to pick up on some of the key themes which emerged as I proceed in my analysis of the issues. One point which may have struck up, though, is that we were treated to two competing narratives.
According to the first of these -- and I advance them in no particular order -- the press is, generally speaking, a force for great public good. It educates, it entertains, it holds the powerful, including government, to account. Although the press may be working under considerable commercial pressure, the importance of this should not be overstated. These pressures have always existed in one form or another. Most journalists are decent people and the far greater pressure is to produce the best possible story to the highest personal and professional standards.
The public on this narrative have a real interest in the affairs of celebrity, particularly where there is an apparent clash between an affected public persona and private transgression. "Hypocrisy" is the noun which is often deployed in this context and the role of the press is to hunt it down and to expose it. Thus, on this analysis, private transgression becomes a matter for legitimate public comment.
The exponents of this narrative would say that the press is already hidebound by an oppressive series of legal constraints which have a chilling affect on legitimate activity. These legal constraints range from the existing panoply of law, through Draconian libel laws, to the manufacture of a burgeoning and oppressive privacy law by High Court judges who are not democratically accountable and who apply their own highly subjective and relativistic standards. One High Court judge receives particular opprobrium.
Further, the press complain that the system of conditional fee agreements exploited by unscrupulous lawyers inures to their disadvantage because the cost of litigation is so punishingly high that often they have no choice but to settle even defensible cases.
Finally on this narrative, the press may well accept that activities such as phone hacking went beyond one rogue reporter at the News of the World, although they would be keen to exclude their own title from these activities. Whatever the position here, the Augean stables have already been cleaned. This happened some time ago now, and there is no further dung to be found.
That's one narrative. The contrary narrative works along these lines: the press in general, and the tabloid press in particular, ruthlessly exploit unscrupulous methods in pursuit of at story which will boost the circulation figures of their particular title. Very often, the story is preordained by the narrative the journalist instinctively knows the editor will ish to put out and the facts are therefore tailored to meet that narrative. By the same token, the editor has an instinctive understanding of what his or her proprietor might want, even if there is no direct interference from above.
The story on this narrative will often strike a chord with the prejudices of the reader because the whole objective, after all, is to increase circulation and revenues in an increasingly competitive and unprofitable commercial environment.
Those advancing this version of press culture and ethics would say that journalists will not shrink from deploying underhand methods, necessarily illegal methods, provided they believe that they can get away with it. The power of the press and its influence over people's lives is such that it believes itself to be almost above the law.
Moreover, in deciding whether or not the public interest might justify the prima facie invasion of personal privacy, editors are entirely parti pris to the exercise and are guilty of the self-same subjective and relativistic approach which they condemn in High Court judges.
Put simply, the public interest is very often deployed as some sort of trump card. If it is too loosely defined, it ends up with the press delving into the affairs of those who are celebrities and those who are not in a way which unethically penetrates a domain which ought to remain private. The press say that they are holding hypocritical people to account, but those doing the holding are themselves unaccountable and hypocritical.
The proponents of this narrative would also point to the recent revelations of surveillance activities carried out by a private investigator on the instructions of News International. These revisions would suggest that the stables are not necessarily clean of dung.
Now, in putting forward these competing narratives, I'm not necessarily doing justice to those who expound either of them. To that extent it matters little, because we'll be hearing from the relevant people once the Inquiry begins to receive evidence and they can put the case in their own way.
My point at this stage is to set out the parameters of the debate and to recognise that the exponents of the good press position and the bad press position would appear to be quite a long way apart.
At the conclusion of this Inquiry, you may wish to consider which of these narratives is true. Of course, it's possible that you may decide that neither is true because the truth lies somewhere in between. Life is sometimes like that.
More interestingly -- and this point has been made by some insightful commentators upon your seminars -- you may decide that both narratives are true, in the sense that everything depends on one's perspective or everything depends on which side of a complex, three-dimensional polygon one happens to be viewing, describing on any specific occasion. Nor, of course, are we talking about scientific truth. We're talking about something which is more elusive, namely what is or may be a matter of opinion.
I'm going to talk about bad practices, some of which are known in the trade as "the dark arts", but it's right that I should start with the good. In the words of one of the contributors to your seminars, most of the content of the press on most days is unobjectionable and some of it is of the highest quality. It is not for this Inquiry to pronounce from on high on anyone's taste on reading matter or entertainment. I recognise that the media cater to a whole range of different world views, that they are perfectly entitled to be opinionated, irreverent, sceptical, credulous, facetious, trivial, obsessive, and to encourage others to think the same, and to express themselves in the style appropriate to their subject matter.
But the point I'm making goes still further. One matter which came out very strongly in your seminars was that many journalists who write pieces in the more popular sections of the press are able to encapsulate often complex ideas in short, pithy, entertaining and punchy stories which retain the interests of the reader. The ability to do this takes as much skill as the ability to write a good leader in a broadsheet. Individual newspapers must cater for the tastes and interests of their core readership. Ultimately, as some judges in the highest courts have expressly recognised, the press have an obligation to entertain and they need to sell their product in order to continue to do so.
I have mentioned a range of world views. I understand that members of the scientific community may be providing the Inquiry with evidence along the lines that much real harm is done by certain sections of the press who, it is said, do not always apply the scientific method to their reports or commentaries upon matters of topical scientific interest. It could be said that reporting which is not evidence-based is inaccurate within the meaning of the editors' code.
This issue and issues like it are not outside your terms of reference, and if relevant evidence is forthcoming, it will be considered. How far this evidence will take you and what, if anything, the Inquiry might do about it may be another matter.
There is a higher constitutional point in play, namely the importance of a free press in a mature democracy. We simply cannot pay lip service to this principle, even if a free press is second nature to the public life of the United Kingdom. A free press developed incrementally in this country over a considerable period of time, with landmark events en route to this destination, such as the litigation in the 1760s involving John Wilkes and the North Briton. But even in some European countries today the press is not free, and elsewhere there are shining examples of the good and egregious examples of the bad.
The importance of a free press is almost self-evident. The press holds the powerful to account and is therefore an important curb on potential abuse of executive and corporate power. At its best, the press espouses unpopular causes and gets to the bottom of scandals which would otherwise be left uninvestigated. It is essential in a functioning democracy that the press be permitted to discharge these vital functions and to that extent, it is inevitable that not everybody will be happy with what they do all of the time.
It is easy to give some concrete examples of the good and the cutting edge, but I'll do so nonetheless. The phone hacking story was the result of assiduous and tenacious reporting by The Guardian, at one stage in the face of a critical report by the PCC.
The thalidomide scandal was brought to the forefront of public concern by the similarly tenacious work of the Sunday Times, who purchased court documents for a considerable sum when the paper knew or ought to have known that they could only be used for the purposes of litigation between the then plaintiffs and the drug company.
The MPs' expenses scandal was exposed by the Daily Telegraph, which, as is well known, paid for a computer disk or similar electronic device in circumstances where it might be said that the underlying data was stolen.
I choose my words carefully, since I'm aware that the Daily Telegraph has provided the Inquiry with a witness statement which deals with the legality of what they did, and one understands the issue about whether intellectual property can, in principle, be stolen at all.
I should add that even if one were to conclude, for the purposes of argument, that the Daily Telegraph was handling stolen goods -- and I'm not submitting at this stage that this is a conclusion you should reach -- public interest arguments would always enter into the equation here, since the CPS would not prosecute a particular case if they assessed that it was not in the public interest to do so.
However, in determining relevant standards, the regulator as opposed to the criminal court will doubtless have regard to the circumstances in which the information in issue was obtained but will not necessarily treat these as conclusive. That said, for the purposes of any coherent regulatory system, the starting point must be this: that news gathering methods which amount to criminal conduct could not begin to be justified without establish be an overwhelming public interest, and even that may not be sufficient.
Another extremely cogent example of good journalistic practice has been provided by the editor of Sunday Times in an article he wrote this year, "Why investigative journalism is a force for good".
Mr Witherow reminds us that in 1984, a Sunday Times journalist, Mr Swain, used old-fashioned blagging techniques to connect Gaddafi's terrorist paymaster with Mr Abbasi, another Libyan-backed terrorist operating out of Doncaster. The journalist blagged that information from a British Telecommunications operator, having received details of a telephone number. He then visited Mr Abbasi, who eventually confirmed that the National Union of Mine Workers was seeking financial support from Gaddafi.
I summarise the story, and for reasons of time omit some necessary detail, but what is interesting here is that if Mr Swain's underhand measures might prima facie have constituted an offence under the Data Protection Act 1984 -- and that would depend on a number of factors, not least on whether that Act was enforceable at the relevant time -- he would surely have had a cast iron public interest defence. If you read Mr Witherow's article in full, it is clear that the journalist was not acting on a wing or a prayer, but had very good ground to suspect that the Doncaster phone number was being used by a terrorist.
These are only four examples and there are many more. Nor are these example confined to the broadsheet press. The Inquiry has received a large volume of evidence covering the good work of other sections of the press in espousing good causes, rectifying wrongs and in investigating abuses of power.
It is also true that in carrying out this essential work, the press is constrained by the law, in particular the civil law of defamation, privacy and the confines of the Reynolds fair comment in the public interest defence. Whether privacy in particular is an effective safeguard is an issue we will need to address.
Much investigative journalism relies on covert methods, if not a measure of deception. Very often, the end product can be justified in the public interest. Speaking more generally, what can be justified in the public interest and how can it be justified lies at the very epicentre of this Inquiry. I will therefore need to examine this issue with more care at a later stage today, but in the meantime, before turning to the issue of bad journalism and the dark arts, I would like to cite a paragraph or two from the Sunday Times article I have already mentioned:
"The expose of how Scargill was seeking financial support from Gaddafi caused an uproar and was a public relations disaster from which the Marxist leader of the NUM never recovered. No two investigations are ever the same, but Swain's story bore certain hallmarks. To get to the truth, he had to lie and deceive. He had to access confidential information by blagging: by pretending to be someone else and extracting the details from the hapless victim. If he had not done so, the story might never have appeared and the public would have been none the wiser. In other words, the end justified the means. That is the fine line that every editor has to walk when judging what methods to use to gather information. The absolute test must be that the story is in the public interests -- that people have the right to know because they are being deceived. It is a subjective test, and in the end, the public and the courts decide whether the paper has made the right call. The journalists' code ascribes this public interest as exposing 'a serious misdemeanour' and preventing the public from being misled by some statement or action of an individual or organisation. The law on data protection also allows journalists to access private information if it is in the public interest and this is a key plank in any defence on significant stories. At the Sunday Times, the role of investigative journalism is to hold officialdom to account at whatever risk. Yes, we bend the rules, engage in subterfuge, impersonate people and show the 'rat cunning' that Nick Tomalin, a great Sunday Times reporter who died for his trade, said was essential in every successful journalist. Without these techniques, the powerful would be protected. We would not tolerate fishing expeditions in the hope of finding out information."
Then Mr Witherow proceeds to discuss the News of the World phone hacking issue.
The concept of a fishing expedition is no doubt a useful one and can be expanded on. Using subterfuge simply on the off chance of discovering some wrongdoing is not, borrowing directly from phraseology used by the Press Complaints Commission, a sufficient justification for the use of these methods. There should be reasonable grounds for the Inquiry, including an evidence base for those grounds. The time for assessing whether these reasonable grounds exist is before the methods are used, not retrospectively.
In borrowing material from the Sunday Times, I should not be interpreted as necessarily agreeing with Mr Witherow. All I do say is that you may think he has encapsulated the issue rather well.
We'll be hearing a lot more about good journalistic practices when the press witnesses come to give their evidence, but I'm also duty-bound to tell you something about bad journalistic practices, about illegal and/or unethical conduct, and at this point in my opening, I propose to do so.
The distinction has already been drawn between means and ends. Ultimately the Inquiry is likely to be most interested in unlawful and/or unethical news gathering methods, although we will not lose sight of evidence to the effect that the article itself may be a gross breach of privacy or an egregious distortion of the truth, even if wholly ethical means were used to obtain the underlying material.
At this stage, therefore, I'll be concentrating on improper news-gathering methods. Here we are talking about a range of techniques and methodologies. Violations of privacy in some shape or form are constant themes here and subterfuge a common theme.
We will be considering the following categories of press misbehaviour, always accepting that in some of the examples I will give, it may be argued by some that the behaviour in question is in fact justified in the public interest.
First we will be hearing evidence about a range of electronic surveillance or intrusion, the interception of communications, covert listening device, cinecameras hidden in wardrobes, bugged telephones in private apartments, cameras hidden behind two-way mirrors and the more mundane example of the use of telephoto lenses. Some of these will be covered in the oral evidence you will hear, others are in the public domain. Yet others are summarised in the evidence Mr Matthew Parris has given to the Inquiry. He reminds us that hacking into voicemails is just one example of illegal and/or unethical intrusion; not electronic surveillance or intrusion as such, but using deceptive techniques to gain access to an electronic database.
That said, one must not lose site of the fact that in some of the examples given the practice is undoubtedly illegal. In others, the practice is or may be unethical.
Secondly, we know of examples in the public domain of stealing information to gain access to personal data. These examples range from rifling through dustbins -- the patois for this is "binnology" -- to more prosaic cases of stealing personal diaries or other forms of hard data. I have already touched on the far less controversial example of the Daily Telegraph's MPs' expenses story.
Then we have evidence of old-fashioned, less technologically-based modes of intrusion. Here I have in mind reporters and photographers hidden in bushes, paparazzi overstepping the bounds of acceptable behaviour and some of the examples given in Peter Burden's book "Fake Sheiks and Royal Trappings", in particular the Bob and Sue Firth story at pages 105 to 118.
The News of the World reporter at the centre of that story is the same News of the World reporter who was at the centre of Mr Mosley's privacy action against News International, tried by Mr Justice Eady in 2008. He also happens to be the subject but not the immediate recipient of the famous "for Neville" email referred to, for example, at paragraphs 412 to 416 of the report of the Culture, Media and Sport Select Committee, dated 9 February 2009.
The recipient of the email was Mr Glenn Mulcaire. Neville Thurlbeck's position, according to hearsay evidence set out in the Select Committee's report, is that he's never seen that email nor had any knowledge of it.
Fourthly and more controversially, the Inquiry has evidence of agent provocateur techniques and some of these are fully in the public domain. "Confessions of a Fake Sheik" by Mr Mazher Mahmood, now of the Sunday Times, has been read by the Inquiry teams and we've also received a witness statement from him pursuant to a section 21 notice.
It should be recorded that Mr Mahmood prides himself in these methods and that his evidence was recently instrumental in bringing the Pakistani spot-fixing cricketers to justice. However, some would argue that his methods are questionable and that there are instances where the ends do not justify the means. We will need to explore this with Mr Mahmood when he gives his evidence.
Next we have situations where payments are made for stories, whether to sources, witnesses or private detectives. Module one is not directly concerned with possible police corruption issues.
I should not be interpreted as saying that such payments would always or even usually be objectionable. My point at this stage is to identify the possible issues. Human nature being as it is, many sources will not provide information free of charge, although the other side of the coin, human nature being as it is, is that many sources, including those working within government in the wider sense of the term, or the police, are more than happy to do so.
But as regards those for whom payment is a necessary incentive, issues arise in general terms as to whether this form of commercial pact enhances the risk that the information provided by the source may be untrue or malicious, or inherently more likely to amount to a breach of privacy.
The press may say that this situation is really no different from that which obtains in relation to police informants. The fact that police sources are often paid for valuable information is a fact of life and it does not logically lead to a lower quality of intelligence. Furthermore, just as an experienced police officer will instinctively know whether a source can be trusted, the same principle applies to journalists. A police informant's tip will need to be corroborated by other convergent evidence, as indeed will that provided by a journalist source. These are all questions which the Inquiry may need to consider.
Payments to private investigators or detectives are capable of falling into a different category. Here I would wish to define my terms. The press, in common with many institutions, including solicitors, use search agencies to locate pieces of information which are in the public domain. This practice raises no privacy issues.
Private investigators or detectives use different methods in order to seek out information and data which are not in the public domain. To be clear, a private investigator may well deploy perfectly proper standards and as the Inquiry will hear in due course, some are responsibly regulated. However, it would not be unfair to comment that the very nature of the job entails a risk that the personal privacy of the target may not be respected, or more seriously, that breaches of the law may be perpetrated in order to secure the information sought.
Here I am referring primarily to breaches of the Data Protection Act and what is commonly known as blagging, the impersonation of someone else in order to extract personal data from an official source or an entity such as a mobile phone company.
A specific example of this is, of course, Operation Motorman and the work of the Information Commissioner in relation to the activities of a particular private investigator, Steve Whittamore. I will cover this topic in a moment.
Aside from the question as to whether the journalists who tasked Mr Whittamore may have been implicated in his criminal activities -- and this is a big question -- the Inquiry will be particularly interested in systems in place in the individual print titles to handle and scrutinise the payment of invoices submitted by a private investigator.
The broader question of the use of sources raises sensitive and emotive issues. Under the Contempt of Court Act 1981 and article 10 of the European Convention, journalists are entitled to protect their sources. The public interest in favour of this principle is both sound and obvious and relatively uncontroversial.
What is of keen interest to this Inquiry is how sources are paid, how their invoices are scrutinised internally and, most importantly, the extent to which this modus operandi of a source may be known or deduced or ignored, by, for example, the editor, whose ultimate responsibility it is to check the accuracy of a particular story and to check that the means by which the information was obtained was lawful.
I am still on my overview of improper or arguably improper news-gathering methods and I'm coming, I think, to my fifth category, phone hacking. One might include the related activities of computer and email hacking, which are also illegal, albeit under different statutory provisions. This Inquiry has seen much less evidence of computer and email hacking. These require a greater degree of technological know-how and may well be harder to detect. One would not like to speculate without evidence how much computer and email hacking has been going on.
I've already made the point that phone hacking is just one form of subterfuge. Morally, it may not be very different in quality from many others. Further, telephonic interception is not some new phenomenon. In the days when the mobile phone network operated on an analogue system, it was possible to purchase radio devices for less than £100 which enabled the operator to listen in on all mobile phone traffic within a particular radius. Presumably, this was precisely how the Prince of Wales' phone was intercepted in 1989 and private communications were recorded.
This practice was illegal under the Interception of Communications Act 1985 without a licence from the Secretary of State. In the sort of context I have mentioned, it could not be justified in the public interest. Since the late 1990s, all I would wish to say at this stage is that it has become more difficult and certainly more expensive to intercept digital communications.
I will summarise the present state of the evidence in relation to phone hacking shortly.
My last category of improper or arguably improper news-gathering methods is a catch-all one, and here is the concern is as much the end product published as methods deployed. Next week, the Inquiry will be receiving a considerable body of evidence from a range of individuals who say that they are the victims of unfair, oppressive and unethical press practices.
Included within this evidence are victims of phone hacking, but at this juncture I am describing my catch-all category. The Inquiry will be hearing from individuals from a number of walks of life, some of whom are celebrities in the sense in which that term is ordinarily understood, others of whom clearly are not. Their evidence is disparate, which may be one of its virtues. The common themes are complaints of systematic breaches of privacy, of conduct amounting to harassment and of unfair, sensationalist and inaccurate reporting. The Inquiry will need to consider whether these complaints are substantiated and whether they constitute evidence of a bigger picture.
I will be returning to the bigger picture towards the end of my submissions, because this is what part one of this Inquiry is all about. I am not, of course, ignoring the fact that the Inquiry will need to have a critical mass of reliable evidence before the contours of that bigger picture may be discerned.
At this stage, I think it's worth adverting to one aspect of the bigger picture which might already be obvious, and it is the following: in relation to many but not all of the allegedly improper news-gathering methods I have been examining, I have been examining the subject of press interest in the private lives of individuals. Some of these individuals may be public figures -- and I appreciate that reasonable people may differ as to what exactly is meant by the term "public figure" -- but others most certainly are not. Whether there is a distinction between those who court celebrity and those who would assiduously wish to avoid it is something the Inquiry may wish to consider under the overall rubric of privacy.
But the point I am making here is that the further away one moves from the heartland of investigative journalism, properly so-called -- this is journalism in the public interest -- to the hinterland of a form of journalism whose end product, some might say, is really no more than a menage of gossip, tittle-tattle, entertaining anecdote and prurient Inquiry, the more difficult it may be to justify intrusive journalistic methods and intrusive publications. Like it or not, one cannot get away from the subject matter.
The criminal trial in the phone hacking scandal was all about hacking into the voicemails of members of the royal household. This was not investigative journalism in any recognisable sense of that term. It was a fishing expedition where the precise species of fish could not be ascertained in advance, but where the overall objective was clear: to uncover new stuff about the royals.
The aspiration, of course, was that the fish, once caught, would be dished up as spicey morsels, as piquant insights into the private lives of the royal family, and the same principle applies to the other individuals who featured on the original Goodman-Mulcaire indictment.
Aside from the specific case of phone hacking, which, to be fair, no member of the press has sought to go justify, the Inquiry will need to consider the range of public interest justifications which are advanced for the type of journalism I am describing. In any event, it will need to consider whether, turning the tables around, as it were, there is really a public imperative in doing more to address this particular problem.
It might be argued in certain quarters that one of the by-products of a free and uncensored press is collateral damage. The press may say there is always a public interest in exposing hypocrisy and that there is a public interest in freedom of expression itself. Part of the duty of the press is to entertain; otherwise its readership will desert. Even if, as one editor said at your seminars, the Hampstead liberal with his gilded lifestyle may not be interested in this sort of fare, that really is none of his business, and by extension, it is none of the Inquiry's business.
I should not be interpreted as expressing any judgment on these intractable questions, but I note that we keep returning to the main theme of this module of your Inquiry: what does the public interest mean and who judges it?
I turn now to the issue of the Data Protection Act and the work of the then Information Commissioner, Mr Richard Thomas.
Data protection legislation was first enacted in 1984 but further, more detailed provisions came into force in 2000, following the enactment of the Data Protection Act 1998. This was a complex piece of legislation designed to bring domestic law into line with EU directives.
The target of the Data Protection Act is not the press or journalists. The primary purpose of the act is to ensure that data controllers -- that is to say, those who hold the personal data of others -- take sufficient steps to protect it. Nor is the Act primarily concerned with the criminal law.
However, under section 55 of the Data Protection Act, it is a criminal offence, subject to a number of listed defences, to obtain or disclose personal data or the information contained in personal data without the consent of the entity lawfully holding that data, namely the data controller. This includes the activity of blagging, the obtaining of personal information by deception.
Hence, if Mr X were to pretend that he was a person with a legitimate interest in obtaining personal data from a data controller and thereby persuade an employee of the data controller to give up that information, the essential ingredients of the offence would be made out. In the real world, Mr X is usually a private investigator and the data controller concerned could be HMRC, a driving and vehicle licensing agency, a mobile phone company, an organ of the NHS or those responsible for the police national computer.
Mr X may operate by deception as his preferred technique, but there may also be a corrupt or unscrupulous employee located within one of these organisations prepared to give up information to Mr X for reward or otherwise, self-evidently without the agreement of his principal.
Mr X is prima facie guilty of an offence because he procures the obtaining of personal data or discloses it, on our facts, to a newspaper without the consent of the data controller. If there is evidence that a journalist has tasked Mr X to obtain confidential information for him, the journalist would also be guilty of an offence, on the basis that he is an accessory at common law or on the footing that he has procured such information through the agency of Mr X, knowing its provenance.
All this is subject to the defence under section 55 of the Act that -- and I quote:
"... in the particular circumstances, the obtaining, disclosing or procuring was justified as being in the public interest."
This sets out an objective test:
"It is not the individual's belief which is relevant. The court must be satisfied to the appropriate standard that in the particular circumstances the act in question was justified as being in the public interest."
One of the reasons why I dwelt on the Gaddafi example in 1984 is that here we see evidence of a solid public interest justification. It was good evidence which linked a particular telephone number with terrorist activities. So there it was legitimate for the journalist to blag further information out of BT, and in the result, critical additional pieces of the jigsaw emerged.
It is important to underscore the point that the journalist was not embarking on a fishing expedition. With the information already at his disposal, he could be reasonably optimistic of finding gold dust. Furthermore, the subject matter of his investigation was serious and self-evidently of public concern.
The issue of criminal offences under the Data Protection Act is unlikely to excite much public interest, still less, revulsion. The topic is somewhat recherche in nature. The Data Protection Act as a whole is a difficult statute to grasp and the whole issue may be more to the taste of an intellectual prospect lawyer than the ordinary member of the public.
However, the issue is an immensely important one because all of us entrust our personal data, which includes confidential information, to data controllers, and none of us would wish to these those confidences abused. This topic is only an arid one until it hits home.
Hence, the work of the Information Commissioner is important and this Inquiry needs to examine what inferences and lessons may be drawn from Operation Motorman.