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

  • Good morning. May I just introduce the team that's representing Associated Newspapers. My name is Jonathan Caplan. I'm assisted by Sarah Palin as junior counsel and I have also sitting next to me Elizabeth Hartley, the head of editorial legal at Associated Newspapers Limited. We represent Associated Newspapers. Their principal publications, as you will know, are the Daily Mail, the Mail on Sunday, Mail Online and the Metro.

    At this stage, we would wish to make some rather broadbrush comments dealing with some of the issues raised by your terms of reference and raised by Mr Jay yesterday. We obviously hope, during the course of the Inquiry, to make more detailed submissions and to assist you as fully as we can in relation to the kind of issues which you have just been mentioning.

    We make perhaps no apologies for going back to the 17th century because the British newspaper industry has a proud history of some 350 years, going back to the first English newspaper in the form of the Oxford Gazette. Since then, there has been a rich and diverse array of publications, both nationally and regionally, usually offering a wide and stimulating range of perspectives, all deciding independently what to report, how to report it, according to differing social and political stances. They all aim to connect with and reflect their national or local readerships, which of course may be in millions, they may be in hundreds, and they all cater to vastly differing communities and lifestyles.

    Sir, your terms of reference are of fundamental importance not just to proprietors and journalists but obviously to our democratic way of life. No one involved in this Inquiry or outside of this room could sensibly doubt that a free press which is independent of government is essential to any democracy. But your terms of reference, if we may say so, raise broad and in some respects imprecise issues.

    For example, what is meant by "the culture of the press" and can you properly define that culture? We raise that as a question. How is it possible to determine what the practices of the press are -- or are we in this Inquiry, in truth, talking about "were" -- without conducting an extensive fact-finding exercise, which in part may be precluded by current police investigations? Even then, are we just talking about the practices of some journalists and one organisation? How do they translate to the practices of the press as a whole? The press is not a single homogenous body and obviously one will need to look carefully at the evidence that is called before you to examine that issue with care.

    Also, insofar as you are called upon to look, as you clearly are, at the issue of ethics, is that something that can be considered totally from an objective perspective or does it in part depend upon who you are and where you stand? Do you believe in a strict right to privacy? Do you regard public interest as an overworked escape clause for investigative journalists? If you choose to be in the public eye, then your answers to those questions may be very different to those of the readers of many newspapers.

    When your terms of reference seek "recommendations for a new, more effective policy and regulatory regime", that, of course, should not be taken as an indication that the existing model of the Press Complaints Commission is broken or that self-regulation is incapable of being beefed up in significant ways.

    This Inquiry is the fourth into the press since the Second World War. The first Royal Commission on the Press was appointed in 1947, as you know, in response to public and parliamentary criticism of declining press standards and fears of monopolies with regard to ownership. It recommended the establishment of the General Council of the Press, which was self-regulating.

    The second Royal Commission on the Press was chaired by Lord Shawcross and reported in 1962. It recommended a new constitution for the industry body, which changed its name to the Press Council.

    The third Royal Commission on the Press, under Lord MacGregor, reported in 1977 and made a detailed study of the Press Council, and one of its recommendations was that the council should publish a written code for journalists.

    Finally, in 1990, the report of the Committee on Privacy, chaired by David Calcutt, Queen's Counsel, recommended that the Press Council be disbanded and that a new authoritative, independent and impartial body be established, to be called the Press Complaints Commission.

    That potted history demonstrates that concerns about press standards and stories -- indeed, yesterday Mr Jay took us back to Warren and Brandeis in the Harvard Law Journal at the end of the last century --

  • You have to add Sir David Calcutt's second go at it.

  • Indeed. He had two reports.

  • But the second one suggested a different solution entire which wasn't adopted.

  • No, it wasn't. He was in favour of abandoning self-regulation.

    But that potted history demonstrates that concerns about press standards and concerns about the kind of stories that the press wrote are nothing new, but on each occasion, with the exception of David Calcutt's second report, statutory regulation -- and by that I mean, obviously, the imposition of a government-appointed body -- has been seen as a step too far.

    We need, we would respectfully suggest, to be clearly aware as to how we have all arrived at this point in the history of the British press before yet another judicial Inquiry with the far-reaching powers which are given to you, sir. As the editor in-chief, Mr Paul Dacre, of the Daily Mail said a month ago at one of the Inquiry's seminars, the banks didn't collapse because of the News of the World and a nation didn't go to war. We are here because the employees or agents of News International have listened to the voicemail messages on other people's mobiles and may have paid serving police officers for information. That's a matter under investigation.

    The rumour mill is that other journalists working for other proprietors may also have acted unethically or illegally, and the flames have been fanned to some extent by politicians, perhaps because of their own agenda of holding the press to account for so comprehensively exposing the scandal of parliamentary expenses.

    We have still to see a large amount of the evidence, obviously, which has been given to this Inquiry, and we look forward to seeing it and to participating in the hearings and the debate which you have.

  • Mr Caplan, I understand the point that had it not been for hacking, and particularly for what was revealed at the very end, this may never have happened. But it wouldn't be a fair characterisation of the position, would it, to suggest that hacking is alone in the issues that actually have generated public concern?

  • No. I mean, we know that there has been a considerable amount of public concern in relation to the limits of the right to privacy and the issues of public interest and the press. The point we make is that we would not be here today but for the activities or alleged activities of the News of the World.

  • Yes, that may be right, and I was present when Mr Dacre spoke so forcefully on this topic at the seminar. I'm equally conscious that, because of the police investigation, there are enormous limits on what I said, I think, quoted yesterday at the Society of Editors conference, about the cart being before the horse. I readily recognise the analogy, which is mine.

    But in one sense, that might help us all, because it means that we won't be focusing on the microscopic but can try and take a broader snapshot of what's going on, to try and make it work better for everyone.

  • If it works better for the press, that's fine, but it has to be everyone, as I've said several times.

  • Yes, and I'm going to come in a moment, sir, to --

  • I'm not trying to take you out of your line.

  • The debate is a far-reaching one which your Inquiry is commencing, and we wish to participate fully in it, as I'm sure do other people in this room and outside of this room, and it is a debate that is demonstrably worth having and an important debate to all. I don't wish to, in any sense, detract from that.

    The point I was seeking to make is in relation to evidence of malpractice or potential evidence. We clearly are aware, all of us, of the activities of Mr Mulcaire, which, as far as we know, ended in the middle of 2006. I'm going to deal with Operation Motorman, which Mr Jay referred to yesterday, and the investigation in 2003. We obviously will have to see what evidence is placed before the Inquiry in relation to other matters of complaint.

    The point I simply make is that we need to be clearly aware that any recommendations or restrictions which come out of this Inquiry are not simply introduced on the basis of historic transgressions which no longer occur, and we will obviously consider the evidence which is placed before your Inquiry, and that there is some kind of systemic problem.

    Sir, can I just state the position as far as Associated Newspapers is concerned?

  • Before you do that, let me just pick up on that which you've said. The analogy that Mr Jay mentioned yesterday of Dr Shipman is not utterly inapposite. Nobody at all suggests that there are lots of doctors going around doing what Dame Janet Smith found Dr Shipman had done, but the opportunity was taken to improve the system. Of course, one has to keep in mind what is vital, particularly in the context of this Inquiry, but to say that one has to look only to the future doesn't mean to say that one should not take advantage of where we are to try to improve for all, and that's really another way of saying what I just said a moment ago.

  • Thank you.

    Can I just state quite clearly the position of my clients, Associated Newspapers, and it is this: it condemns the practice of phone hacking, and so far as it is aware, no journalist at Associated Newspapers has engaged in phone hacking. It does not bribe police officers, and in particular, it condemns the shameful practice of hacking the mobile phones of the victims of crime or of their families.

    Sir, the Inquiry is in progress, and as I've said, having regard to the improvements which you have just referred to, sir, which hopefully will come from this Inquiry, and the huge ramifications for our national press which are likely to result from your recommendations, Associated Newspapers is committed to assisting you as fully as it can, as a core participant. We will do all that we can in a constructive way. We look forward to participating in the debate which this Inquiry will stimulate.

    Associated Newspapers strongly believes in maintaining a strong, ethical -- and I stress that word -- and viable press which is equipped for the significant challenge of being both the eyes and ears of the public and ultimately its voice. Of course, there is always room for improvement and for better practices.

    We do wish, however, to stress that press standards have vastly improved over the last 20 years under the Press Complaints Commission and under the Editors' Code of Conduct. It's been mentioned before, but we do stress that most journalists are hard-working, conscientious and honest, and they passionately believe in what they do. We are anxious that the allegations of phone hacking should not be allowed to besmirch the profession as a whole.

    This point can be made in another way, and that is this: the Daily Mail and the Mail on Sunday are commercially successful, we submit, precisely because they connect with their readership and their values, and that readership will stop buying those newspapers if they feel that they cannot trust its integrity or accuracy. Newspapers are held to account every day by their readers, and it is their readership's taste and attitudes and whether they are met or not that determine the commercial viability of a newspaper.

    Having said that, of course, even in the middle market, newspapers at times need to be gossipy and sensational if they are to attract large circulations. Stories about celebrities and the course of human relationships are a part of that attraction and they do enable space to be provided elsewhere in the newspaper for more serious articles providing analysis and comment about perhaps more important issues of the day. But the aim is both to entertain and critically to engage.

    We must also remember that we live in a country which is one of the major centres of the arts and entertainment industry. Many people have become celebrities and gone from relative obscurity to international fame and wealth because of the vibrant press which we have here, which has been able to capture the imagination of its readership through stories about their personal lives which are usually informative as opposed to being intrusive, as well as stories about their artistic talent.

    With news and investigative journalism, those stories, of course, are not plucked full grown from the trees. They very often have somebody who is wealthy and powerful and does not want that story to be printed, and newspapers therefore require considerable resources and resourcefulness both to investigate and then to establish the truth and accuracy of what they have printed, and they need to be commercially successful to perform that role.

    As you've heard only moments ago, the press, of course, is increasingly having to compete with the Internet and with other digital news platforms which are often largely unregulated. The press is highly regulated, and you're well aware of the laws covering data protection, libel, the new Bribery Act, privacy, contempt of court, harassment, regulation of investigatory powers and official secrets. Therefore the press is only free, of course, to the extent that it is not already prescribed by law.

    Sir, can I turn to Operation Motorman, which we do regard as an important matter, because a certain amount of comment has been made following the police investigation in 2003 and the activities of the Inquiry agent Stephen Wittamore, and following the findings of the Information Commissioner in the two reports, "What price privacy?" published in May 2006 and "What price privacy now?" published in December of that year. The reports drew attention to the extensive use of enquiry agents to search for personal data by not just journalists but by organisations in many different areas of our society.

    The last few years since the publication of those reports have seen a growing awareness, we suggest, on the part of all sections of society -- government, business and the media -- regarding the importance of data protection. In fact, newspapers are by no means the worst offenders and no penalties have so far been awarded against newspapers under the Data Protection Act.

    Yesterday, Mr Jay referred to Operation Motorman, and we are keen to return to it because in our submission it is in no way to be compared to the conduct of phone hacking. It is especially important to draw a clear distinction between phone hacking, which is the illegal interception of private voicemails, and the kind of conduct which was the subject of the Information Commissioner's reports.

    The activity which Stephen Wittamore was hired to undertake almost a decade ago was primarily to obtain addresses and telephone numbers, most of which -- not all of which but most of which -- could legally have been obtained if the individual had had the time to research it. His assistance was required, as far as Associated journalists were concerned, to help trace people quickly, usually to verify facts or to comment on stories that were written or were in progress prior to publication.

    It should also be stressed that Mr Wittamore did not work simply for newspapers; he was hired by organisations such as banks, local authorities and firms of solicitors who similarly were seeking to locate people. Whilst Mr Wittamore was prosecuted, you will be aware, sir, that no journalist has ever been charged because there simply is no evidence that they ever asked Mr Wittamore to do anything illegal or that they knew he was or might be illegally accessing databases.

    Another key difference between phone hacking and the data provision provided by Mr Wittamore is that journalists using him were not engaged, we would respectfully suggest, in fishing expeditions. When the Commissioner's report was published in 2006, the editor in-chief of Associated Newspapers, Mr Dacre, took immediate action and banned from 2007 the use of all enquiry agents. It was made quite clear that Associated would not pay for them and that compliance with the Data Protection Act was to become and is a term of journalists' contracts with my clients.

    Sir, Associated Newspapers will seek to demonstrate in evidence to you that it operates its titles by respecting and observing the law and regulatory requirements and by applying the Editors' Code. It invests in the training of its reporters, requiring continuing professional development in significant changes in law, such as the new Bribery Act.

    All journalists employed by Associated are required to comply with the Editors' Code and to abide by the highest professional standards. Associated aims to set strong ethical culture within each title and it closely monitors payments to third parties for news and information. It has and is supported by a strong in-house legal team, and by specialist solicitors and counsel.

    That is not to say, of course, that Associated does not make mistakes of judgment or simply mistakes. Publishing to a deadline is a process that involves risk and it can be said that a newspaper that never sets out to expose itself to risk is not doing its job.

    The Editors' Code provides a very good set of binding professional standards and is a firm cornerstone of the system of self-regulation. It is intended to provide a clear view of what constitutes unacceptable press behaviour. Mr Dacre has been chairman of the code committee since 2008 and the code has evolved and been amended many times in the 20 years existence of the Press Complaints Commission.

    For example, it was amended to impose an express prohibition on hacking into the messages on mobile phones or emails and to make it clear that editors and publishers must ensure that its provisions are strictly observed by even those non-journalists and external contributors who may work on a story.

    Sir, the code is, of course, subject to the public interest exception but without it, many major stories of corruption and abuse of power could never have been written. I understand, of course, that that is an issue, the definition of "public interest", which obviously is likely to be an issue of some keen concern to you, sir, and the subject of submissions and inquiry before you.

    But the public interest factor is often seen as the press arrogating to itself a right to break the laws by which we all live for their own commercial profit. We suggest that that is completely to misunderstand the role of a free press, which, in the words of Lord Nicholls in the case of Reynolds v Times Newspapers, is -- the vital function is to act as a bloodhound as well as a watchdog.

    Ultimately, of course, if the judgment call is wrong of the journalist and the lawyers and the editor, then it is the editor and the journalist who may have to pay the price, possibly by even risking their personal liberty. Sometimes, as you know, it will be necessary to engage with whistle-blowers who may, in the process, reveal confidential or even secret information, or who may need financial payment to support themselves for the future and in consequence of their actions. The Official Secrets Act might make the communication of such information unlawful. The Bribery Act might prohibit payment.

    Sir, in a letter to the Media Lawyers Association in March of this year, the Lord Chancellor and Secretary of State for Justice said in the context of the new Bribery Act that he was confident that the Director of Public Prosecutions and the Director of the Serious Fraud Office "can take full account of the considerations which may apply to a case involving public interest reporting" when deciding, under the Code for Crown Prosecutors, whether or not to prosecute in a particular case. He added that he recognised:

    "... the extremely important role played by the media in our society and it is not the intention of the Act to restrict legitimate and responsible journalism. I hope you will be reassured that the public interest will remain a key consideration in any individual case."

  • Has anybody taken that up with the director?

  • I cannot comment about that, but we will provide copies of that correspondence to the Inquiry.

  • Sir, may I just turn to two short final topics? The first is the question of anonymity. May I just say a word about that.

    There may well be journalists or ex-journalists who are wishing to give evidence to you and who may be dissatisfied with their employers or former employers, and we understand from a previous Inquiry hearing that they may wish to do so from the position of anonymity and that it may be that neither their name nor the newspaper group for whom they work or worked will be made public. If they have important evidence to give, then we -- and I hope other newspaper publishers present -- would encourage that evidence to be given as openly as possible, and to be tested against the substantial body of evidence that the Inquiry is receiving.

    We have, however, expressed and continue to express the most profound concern about the Inquiry receiving evidence on the basis of anonymity, which, of course, is contrary to open justice. We remain keen to explore alternative avenues for meeting any concerns that may be expressed by potential witnesses from whatever publishing group they come and wish to stress that Associated Newspapers is very keen to explore those avenues, if they can be explored and met.

    Associate, so far as it knows, has nothing to hide and welcomes complete transparency, and of course, sir, we will respond to the draft anonymity protocol which has been distributed.

  • It is a problem, and I understand your concern, and I understand the specific concern that an anonymous witness might besmirch a reputation which can't be answered without detail. I have recognised that such evidence in any event would inevitably carry far less weight, but we'll have to see how we progress on the specific examples.

  • If there are any.

    Sir, if there is any malpractice, far better that it's out in the open. We're all here to learn and improve and to deal with it. If anybody has any concerns, a working or former journalist, then we simply say that we should respectfully seek to explore other alternatives. It may be a contempt -- and I would respectfully suggest it is -- of your Inquiry if anybody was to take steps to penalise them for giving that evidence, and it may be possible to give undertakings -- I don't know, we'd need to explore that -- which would meet those concerns, but those are avenues which clearly could be explored.

  • Finally this, please. The drafting of the Inquiry's terms of reference includes the critical issue of regulation. Of course the Press Complaints Commission can be made more effective. Our position is that we strongly advocate it does not need to be replaced; it needs to be and is capable of being beefed up.

    We do say that the virtue of the current system is that complaints by members of the public are generally heard and resolved quickly, free of charge and without the use of lawyers. Mr Dacre has already suggested at one of your seminars that, for example, improvements could be made by possibly introducing an industry ombudsman who could be called in by the Commission or work in tandem with it to investigate in serious cases, with the power to impose some form of financial penalty and costs orders.

    Clearly, there needs to be more thought given to corrections and better prominence. Associated Newspapers has already begun that process and has in fact instituted a system of giving speedy corrections and prominence and there is obviously the possibility of introducing lay participants onto the Editors' Code committee.

    We do say it is unacceptable that any newspaper owner should be permitted to opt out of self-regulation, and we suggest that a way may well need to be found to ensure that all owners participate and fund in that scheme.

  • But once you say that, how do you achieve that laudable aim without somebody saying, "You have to." And somebody saying, "You have to", sounds to me very much to me like a law that says you have to.

  • There are possibly other ways and obviously this is an issue --

  • Well, I'm all ears, Mr Caplan.

  • We'll aim to provide some possible solutions. But, we are firmly behind the suggestion that all publishers or proprietors need to be involved in a self-regulating scheme.

  • And a way that encourages Internet publishers of news to involve themselves in a mechanism that does allow some form of oversight or control, equally. Well, there it is. That's the mission.

  • That's the mission.

    Sir, that is all we wish to say to you by way of opening. We'd like to thank you for the opportunity --

  • Thank you very much, Mr Caplan. I'm grateful to all those who have spoken and will continue to speak, I have no doubt, for the support that they'll give me.

    I think that's a convenient moment to give everybody a break, and then we'll carry on in about -- does that cause you inconvenience, Mr Millar?

  • Not if we carry on after the break. I did want to mention the matter you mentioned yesterday.

  • We're very, very welcome and we certainly are, but if you're all right for a few minutes, then I think we'll give the shorthand writer a break. Thank you very much.

  • Can I just make one correction? If I said in relation to Motorman that the attempts to locate people was to check the accuracy of printed stories, I meant prepublication stories. I'm sorry if there was any confusion.

  • (A short break)

  • Mr Millar, I wouldn't want to make more of the point that I made yesterday than is there to be made, but I didn't want there to be a misunderstanding.

  • Absolutely. We considered your comments yesterday afternoon about that sentence in paragraph 6 of our written submissions which quoted -- always a dangerous thing to do -- a part but only a part of a sentence --

  • It's not normally dangerous to quote what judges say themselves, is it?

  • It is if you cut and paste it in that way. Take part of a judge's sentence out of context and you can get yourself into a mess, sometimes.

    What we've done is we've submitted a revised version of the written submissions which omits the entire sentence in our submission, and therefore the part of your sentence, and we're happy for that to be the published version of our written submissions. We hope that avoids any further consideration of the problem.

  • Yes. But I'm sure you understand, from what you heard me say yesterday and what you've read that I've said that the fundamental principles are entirely clear to me, and I don't believe you take issue with them.

  • It's just a question of whether I've committed myself to something.

  • Yes. I did, however, want to say this, hoping that the deletion does resolve the matter: please accept that we didn't intentionally spin part of your judgment. That makes us more devious and perhaps more clever than we are. We do understand that this was how it appeared to you and we do, of course, therefore, apologise for that, but it was inadvertent.

  • Mr Millar, as I said right at the beginning, I don't want to make more of it than it is.

  • I just wouldn't want the concept behind the thought to have gained currency.

  • There will be plenty of scope for us to adopt and we will adopt and make the submission that a regulatory system different to the one we have at the moment could -- that's the key word, "could" -- depending on its features, impact adversely on freedom of expression or have a chilling effect on responsible journalism. We will make our arguments to that end when the appropriate time comes but we don't want to suggest that that was a view that you'd formed. When one reads the judgment in context, it's quite clear that that wasn't a view that you --

  • I'm quite clear that it's easy to conceive of many regulatory systems that would undeniably adversely affect freedom of expression and provide a chilling effect on responsible journalism. I have no wish to go down that route. The trick is to find the right balance that does not have those adverse effects, but does provide the necessary protection that certainly it appears is required. It's the trick.

  • Yes. That's a sentiment with which my clients would not disagree.

  • Thank you very much indeed.

    Mr Jay, who is supposed to be speaking now?

  • I think on the programme we now have a little gap until Mr Dingemans arrives at 3.15.

  • Oh, is nobody else willing to step up to the plate?

  • Apparently not, no. But tomorrow morning we have a relatively full programme.

    I don't know whether anybody has any point they wish to raise now, legal or other nature, which we could deal with on the hoof, or whether we just break now and come back at 3.15.

  • I'm wondering when we're going to get the full set of statements for the first week of evidence, because we haven't had them yet.

  • That's a good question. There's a fastball for you, Mr Jay.

  • Some of them have been made available. I will make enquiry and give a timescale by 3.15 or at 3.15 for the remainder.

  • Very good. Do we have a batting order?

  • Yes, and that has been provided. That is for five working days commencing 21 November. The core participants have seen that.

  • All right. Have you seen none of the statements, Mr Millar?

  • I've seen a few of them, but I think for the majority of the listed witnesses for the first week we still haven't seen the statements.

  • All right. We will check on that now.

    Is there anything else that anybody usefully can raise at this stage? I would not want it to be thought that once we get into hearing evidence I will be taking a relaxed line to the time that we sit, because we really do have to press on, but I do understand the particular problems this week and I won't press them. I know Mr Dingemans has a particular commitment which he could not avoid.

    All right. There it is. We'll resume at 3.15 pm, when Mr Dingemans will provide opening submissions on behalf of Northern & Shell, and then we'll deal with the other opening submissions tomorrow.

    Thank you very much.

  • (The luncheon adjournment)