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

  • MR ANDREW WILLIAM PENMAN (affirmed).

  • Mr Penman, you've provided an eight-page witness statement to the Inquiry. Are the contents of your statement true and correct to the best of your knowledge and belief?

  • Thank you. The topic of your witness statement is the subject of prior notice.

  • You tell us that you write the Penman and Sommerlad Investigate column in the Daily Mirror, which first appeared in January 1997.

  • Under a different name then. We had slightly different personnel at the time.

  • And the purpose of the column broadly is to conduct consumer investigations into wrongs which have been alleged by the readership?

  • You explain that in 2010 the column won the Cudlipp Prize for excellence in tabloid journalism presented at the annual awards ceremony by the Press Gazette. You have been shortlisted four times. You've twice won the Consumer Journalist of the Year award presented by the Trading Standards Institute, an award which is open to journalists in any media.

    Your statement is being taken as read and has been considered by the Inquiry, so I won't go through it all, but in short, you explain to us some of the problems that you had in practice tracking down people who are fraudsters.

  • Yes, certainly. Fraudsters, by their nature, tend to make it hard to be found, not just by journalists like me but possibly by the police or trading standards, and not least by the people they've ripped off, who are likely to be quite unhappy. Some can go to great lengths to hide, others are less successful.

    My concern about prior notification is that if it becomes an obligation to contact someone before you write about them, then the crooks, who are most successful at going to ground, are the ones you won't be able to write about. It also follows, I think, that they are the ones who have been the most successful rip-off artists because they then have the wherewithal to, for example, incorporate their company overseas or set up overseas PO Boxes or even be physically based overseas.

    I was going to give you a quick example of two people running the same scam. One was quite easy to track down, another very hard. There was a more successful one who had made millions of pounds by ripping off the public who had fled overseas with his money.

    Very briefly, the situation was this. It's a fairly modern scam and a rampant one. It's called land-banking. The FSA estimates that the public loss is about £200 million. Late last year, I looked at this issue and I found -- actually I found three people who had been running land-banking scams, which, very briefly, involve selling plots of fields to the public, saying that the value will rocket when the land gets planning permission for, say, housing. This never happens and the poor investors are left with worthless bits of field somewhere in the country.

    I found the directors of -- three directors of two companies that had been put into compulsory liquidation in the High Court in the public interest in various parts of the UK, partly because they were stupid enough to have personal licence plates on their cars, which made them a little bit easier to find than might otherwise have been the case.

    There was a director of a fourth company, and this particular company had ripped off the public for around £20 million. That's not my guess; that's the figure given by the liquidator of the company, and the individual, the sole director, had done a bunk. He'd left to a -- last heard of by the liquidator in Cyprus and even the liquidator had no -- the liquidator had met him in Cyprus but in neutral territory, it was a hotel, and had no further contact details for this person, and I certainly had no way at all of getting in contact with him.

    So if prior notification is going to become the law, the result will be: I could have run a story about those first three directors who I found and contacted, but not about the fourth director, who was the biggest offender and who ripped off the public for the largest sum of money.

  • If we accept the principle, for the purposes of argument, that giving fraudsters advance notification is difficult and sometimes impossible, and the better the fraudster, very often the better hidden he is as well, you raise a concern about compulsory prior notification.

    You then go on to discuss in your statement -- and I'm looking now at paragraph 17 -- the possibility of having some exemption, if there was, against your wishes, compulsory prior notification, and you discuss the sorts of bodies that might need an opt-out: the Advertising Standards Authority, the Office of Fair Trading, district councils, parish councils and so on. We see that it might not be an altogether easy solution.

    Can I suggest this to you for your consideration: one of the things you do say in your statement is you generally do give prior notice, don't you?

  • Would it be right to say that you give notice when you can?

  • Yes. Yes, in the main.

  • And very often, it actually elicits more information for you?

  • Oh, contacting the alleged culprit who we have had complaints about from our readers or even wider members of the public, yes, proves very fruitful on occasions.

  • Very often it seems to be a pattern you find them driving very expensive cars?

  • So if your desire is to give prior notification and that is the normal practice where you can find people, would you object to a system which required prior notification except where that was either impossible or not reasonably practicable or had some similar qualification?

  • The phrase "reasonably practical" fills me with horror. I mean, is this going to be a lawyer's dream, where we can argue in court ad infinitum about what's considered reasonable or practical? I fear it being made compulsory under really any circumstances.

  • If it's not made compulsory, isn't the problem that people whose privacy is invaded wrongly have no opportunity to prevent that invasion of privacy in advance?

  • I should say first of all this is an area of journalism that doesn't so much concern me. I write about crooks and conmen and I would always argue there's a public interest defence for how and when I contact them, if at all.

  • But there may be cases where you contact them and they're able to prove their innocence?

  • In which case we wouldn't run the story.

  • Indeed, but in which case prior notification serves a very valuable purpose.

  • Well, it would have done, but those are circumstances I've not come across.

  • So accepting that in striking a balance between privacy and prior notification and the practical problems that can emerge, particularly in your line of work --

  • -- isn't some qualification such as whether it's possible or practicable, even if that has been decided in a contentious case by some form of tribunal or judge -- isn't that a reasonable compromise?

  • Well, I don't know. We're still left with the difficult position that anyone can attempt to avoid publicity which they don't want simply by making themselves uncontactable. Wouldn't that be the net result?

  • On that test, if the person was uncontactable, and you tried and you can't contact them or you've made reasonable efforts to find them and can't, then you would be able to publish without prior notification.

  • Yes. Again, I'm just concerned by the word "reasonable". I mean, if you take, for example -- this is quite a common situation I come across. Readers complain that they bought something off a business that's web-based only and their money's been taken and they haven't got their goods and can't get a refund and I'll have a look at the website and you click the "Contact us" button and you get no contact details at all. This is fairly common. You've probably seen it yourself. All you get is a blank form to fill out to put in your contact details and press "send" with your comments, and you hope the company will see it and they may or may not get back to you.

    If we're going to argue, does that mean I'm being reasonable in attempting to contact them? They might say, "Look, we get 8,000 emails a day. How can you expect us --"

  • All of them complaining? That's pretty good evidence.

  • Indeed. If mine's just one query amongst lots of other complaints, then they could -- reasonably, a lawyer might argue -- they could argue that I didn't fairly try to contact them.

  • Not argue successfully though, in those circumstances.

  • I don't know. I would never like to say what a court might find.

  • I think we've got the point.

  • Thank you very much. I have no more questions.

  • The critical significance of your evidence, it seems to me, Mr Penman, is that you are engaged in a very worthwhile occupation, namely protecting the consumer rights of readers, and therefore you want to be able to do that as effectively as you can and in as untrammelled a way as you can?

  • Well, that's -- I do, but that's to look at it slightly selfishly. I'm genuinely worried though that there is a public interest right here. We've heard a lot about the right to privacy, quite understandably. I do think there's something about the rights to publicity -- call it free speech, if you like -- which is if someone's been the victim of an injustice, I believe they have the right not just to tell their close families or mates down the pub; they have a right to shout it from the rooftops, and that's where the press can come in. So if the press is stifled, then the public are stifled.

  • I don't actually think that anybody was thinking about stifling the press or the public in relation to disclosing acts of moral obloquy or criminality.

  • Though I do fear that if prior notification becomes compulsory --

  • Well, I've got the point.

  • Sir, the next witness is Mr Embley.