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

  • One other point whilst I am on my feet. Mr Sherborne, shortly before we broke -- and it's really for you, sir, more than anybody else -- at page 141 of the transcript was talking about Mr Hugh Grant and his recently born daughter and was making some criticism of columnists in the Daily Mail. He then went on to say that last Friday he was making an emergency injunction in relation to some events of harassment in relation to the mother of that child. I just wanted, having spoken to him, because I haven't seen Mr Grant's supplementary statement, but he confirms that that injunction was not against Associated Newspapers. It was to do in fact with some paparazzi photographers and it was a harassment injunction in relation to those photographers.

  • Thank you very much. I'm very happy for clarifications, where appropriate, to be provided and made clear as and when. The advantage of not doing part 2 at this stage is that one is looking at the bigger picture, not the specifics of conduct, although obviously when we move away from phone hacking, we can be rather more particular than we can be in relation to what is the subject of a criminal investigation. Thank you.

    Right, Mr Jay.

  • Sir, the latest intelligence, the statements of Garry Flitcroft together with exhibits, or one exhibit, and the statement of Mr Ian Hurst went onto the system last night. The statements of Mr Coogan, Ms Church, Ms Diamond, Ms Winter and Mr Grant's supplemental statement have gone to Lextranet today with a request for expedition, and therefore their evidence should go on the system, I imagine, by close of play today. That, I believe, covers the exhibits.

    Otherwise, it is according to what I told you yesterday, so certainly by close of play tomorrow, everything that is available will be publicly disseminated. We're still waiting for the statement from Sienna Miller. Oh, that's just arrived.

  • All right. Let's see if we can get that on too.

  • If there is any difficulty at all about affected core participants getting access to statements, is there a mechanism whereby if somebody comes to the team offices they will at least be able to see them?

  • They're going to be provided separately by email to the core participants, I'm told, to expedite that process.

  • So any delay at Lextranet's end will be short-circuited.

  • Good. Hopefully once we get into this system, it will all come much -- we'll get into a rhythm and there won't be the difficulty.

  • It was in part for this reason that I was persuaded, contrary to my own initial desires, to have a three-day week this week rather than a four-day week.

  • Sir, indeed. As I said, the material is not that voluminous, but obviously needs to be considered.

    I think Mr Garnham has an issue he wishes to raise in relation to numbers.

  • Sir, I have two matters to raise, and I will deal with them at the time you think best, but first of all --

  • Then I'll deal with them both now, sir.

    The first one is a misunderstanding that appears to have crept into some of the information supplied by the MPS, at least in the way it's been relayed.

  • Well, let's get it right. Yes?

  • As Mr Jay correctly told you in his opening, there are approximately 28 readable corner names in the Mulcaire notebooks.

  • But it is not correct to suggest that a fair inference can be that they were all News of the World employees.

  • That's what Mr Rhodri Davies suggested. Yes?

  • Some of them probably are. For many others, it's impossible, at least thus far, to say whether they were or were not. It certainly cannot be said that the MPS have established that all the taskings indicated by corner names were made by News of the World employees.

  • That will get some other representatives of the press jumping up and down, but all right.

  • I'll live with that, sir.

  • Secondly, the Mulcaire notebooks indeed run to some 11,000 pages, and Mr Jay correctly told you that they evidence some 2,266 taskings, but the police cannot say, because they do not know, whether every tasking targets a different individual. In fact, that's unlikely, and that's plainly relevant to any estimation of the number of victims and the sport of guessing the number of victims is one that's been playing out in the press and elsewhere.

    All I would say is to counsel caution about trying to estimate the number of victims from these figures.

  • A third suggested clarification, sir, is this, and it's in fact me rather seeking a clarification from Mr Sherborne. He mentioned a little while ago that the diary of Mrs McCann had been obtained in some way or other from the police. That obviously caused us a little concern.

  • I read that as the Portuguese police.

  • I thought I had said it was the Portuguese police but if I didn't make that clear, it was the Portuguese police.

  • I'm grateful for that. That will enable --

  • As I recollect, and I don't know whether I'm giving evidence of this of what I've read or from the statements, or whether Mr Sherborne said it, the diary was seized by the Portuguese police, and just to make it clear, I have an understanding that the Portuguese authorities required it to be returned with no copies kept, but in some way it found its way to --

  • I suspect that comes from the statement of Mr McCann, but it doesn't matter, as long as the position is dealt with.

    The second matter I raise is this. By letter dated 10 November, those instructing me asked the solicitor to the Inquiry whether the Inquiry would grant the MPS permission to disclose the documents placed on the Lextranet to the senior investigating officer for Operation Weeting. We've not had a response to that. I make no criticism of that, I know how busy the Inquiry staff are, but I raised it with Mr Jay last night and he suggested that I raised it with you orally today.

  • I think you're right to raise it and it raises some very interesting issues, which I will ask for some help about.

    Is this material that you've now seen material that has been obtained by the Inquiry under compulsion or voluntarily? Do you know?

  • I don't know. I suspect -- the classic example is a particular witness statement. I suspect that was volunteered, but it might have been in response to a rule 9 or Section 21 request. I don't know.

  • Are you trying to decide, as you read these statements, whether in each case you want to disclose it to the police or is this blanket?

  • It's for two purposes, sir. First of all, it's because, as we read it, we're seeing things that would be material to the present investigation and we would therefore like the police to have it.

    The second purpose is that I would like to take instructions from the officers involved in Operation Weeting about that in order to ground a request to you to make a Section 19 ruling in respect of it.

    I can't do either of those things because of the terms of the confidentiality order as things stand at the moment, which is why I'm asking you, sir, for permission.

    I'm quite happy to deal with it if the Inquiry prefers it on a document-by-document basis, although we would inevitably prefer to be able to show the senior investigating officer all the material that goes onto Lextranet.

  • One has to be a bit careful about that because what's been obtained by me pursuant to a requirement under the 2005 Act, in other words under compulsion, might carry with it certain consequential effects if it were put into the police system. I'm not saying it would, but I'm saying, putting a criminal law hat on, I'm a bit concerned about some aspects of that.

    Is not the first thing to do, in relation to any statement that you particularly want the police to have because it advances their inquiry, to identify that statement and then, through the Inquiry or through the relevant core participant, seek permission?

    For example, if one of Mr Sherborne's clients has made a statement which you think would assist the police inquiry, we can ask or I can ask -- it probably won't be me -- Mr Sherborne whether his client would have an objection to that statement being released under the police. Then it's not being provided under compulsion and you have it. That's the first thing.

    For the rest of it, the need to take instructions I do see as slightly different, and I'll just need to hear what people think about that.

  • Sir, I should say that with the agreement of the Inquiry, News International are providing all their documentation to us and to the Inquiry, so there's a complete duplication in that regard and that's proving helpful. We don't have the same arrangement with each and every core participant.

  • No, I can understand that. I have the point. Right, thank you.

  • Sir, I would only say about that that some of that is urgent simply because the witnesses will be here next week.

  • All right. Let's deal with the first point first. Mr Jay, I know, because it was discussed with me, that the information which came in your opening essentially came from -- well, obviously came from the police and there was an opportunity for some checking to be done, but would it be fair to say, in the light of what Mr Garnham has said, howsoever it's arisen, that your opening should be read with that caveat that he's identified in mind?

  • Yes. But we can revisit the question of inferences, indeed we can explore it further, as and when DAC Akers gives evidence because it's one of the matters we will probably ask her about, further clarity on the approximately 19 other corner names.

  • All right. Thank you very much indeed. Let me deal with this point first because the other person who has an interest in saying something about that is Mr Davies. Mr Davies, you flagged this point up immediately.

  • Is it sufficient if we have obtained the correction to the way in which Mr Jay put it, or the elaboration on what Mr Jay said, that we have received which of course is now available for all to see?

  • Yes. As I explained to the Tribunal, we haven't seen the whole of the notebook, so we are in no position to make any comment as to the accuracy of what the police say, but I am content if Mr Jay's opening is treated as amended, as Mr Garnham said, and as Mr Jay says when DAC Akers gives evidence, if it's necessary, some further clarification may be obtained then, but the position for the moment will be as Mr Garnham has put it just now.

  • That's fine, thank you. Thank you very much and I'm grateful to Mr Garnham for picking that up so speedily. It is inevitable that seeking to summarise, one might not do the very fullest of justice to every detail and inferences which may be thought appropriate may not be right, so we have to be careful.

    Right, the second point. First of all, it's quite clear that it does in fact, because of the urgency, concern your clients. Your clients, I think, all gave statements not pursuant to legislation, not because I required it, but I think I invited them all, because I felt that it was appropriate to draw that distinction.

  • Do you have any objection, and if you want to take a couple of minutes to take instructions of course you may, to them being shared with the Metropolitan Police?

  • Can I say this without having had the benefit, which I will take in a moment, of seeking instructions? I suspect that there won't be an objection. We haven't received any request from the Metropolitan Police so we haven't had any time to think about this, but I can see the sense of it and I am aware that one or two of those whom I represent have already been assisting the police in the investigation. Can I take a few moments just to --

  • Of course you can, of course you can. I won't require you to do it with me sitting here looking on. I will rise for a couple of minutes because it's always much easier to do that --

  • I think, with the benefit of that time, Mr Crossley, who sits to my left, will speak to the Metropolitan Police and perhaps we can come up with a mechanism, because of course there are a number of different individuals, at least 20 of whom are giving evidence next week, who may well need to be consulted about their individual circumstances, and that's not something --

  • You won't be able to do that in two minutes.

  • As regards the broader pictures, that won't affect you, Mr Sherborne. It really affects others who might have been required to make statements who aren't necessarily represented.

    Mr Jay, what's the position about this?

  • Sir, I am troubled by the possible Article 6 reasons. Most of the evidence the Inquiry has received, but not all of it, was obtained pursuant to coercive powers under Section 21 of the Inquiries Act, and the purpose of obtaining that evidence is self-evidently to assist this public Inquiry, not directly to aid the police in its investigation.

  • Yes. I wouldn't release any statement that had been made by somebody who is presently suspected of crime.

  • Certainly not without them specifically giving authority because they could say anything they liked to the police.

  • Sir, I respectfully endorse that.

    The two other sort of categories of evidence, however, there are the possibility of witnesses who provided material to the Inquiry under these coercive powers, who are not currently the subject of a police investigation but who might be if that material were provided to the police. And then there is material which, as it were, would not be self-incriminating but which might incriminate other people.

    Whether it's necessary in both those cases -- maybe it is -- to ask for the individuals' consent before the material is released to the police is something which I believe is worthy of further consideration.

  • Yes. Maybe I'll have to investigate this a bit more with Mr Garnham, but I'll be very, very disturbed, I think, if a statement that had been made to the Inquiry pursuant to a legislative requirement was then used as the basis for identifying the writer of the statement as a suspect.

  • Because once that's happened, anybody who has anything useful to say about a large number of topics simply won't say it, and the benefit that I have of the widest possible picture will be entirely lost. I say nothing about Saunders and the European Convention.

  • Yes. Of course, anybody who receives a Section 21 notice will understand the immunities under Section 22 of the Inquiries Act, and those immunities include a privilege against self-incrimination.

    It might be said that embedded within that is some sort of assurance that the Inquiry will not be providing that information on to the police, let alone the difficulties you advert to in Saunders v The United Kingdom where the European Court held that it was a breach of Article 6 of the Convention for the prosecution to rely on evidence which had been obtained by the then DTI pursuant to statutory coercive powers.

  • I certainly won't give that direction without rather more detailed argument.

  • The subquestion is slightly different, and is to this effect: is it appropriate for Mr Garnham to be able to take instructions from a police officer simply for the purposes of this Inquiry and, if so, should that police officer be required to sign a similar confidentiality undertaking so as to provide, if you like, a Chinese wall between what is within the knowledge of the police for this Inquiry and their investigation, or is that unrealistic?

  • Putting aside the possible artificiality of the Chinese wall, but that may be capable of being surmounted by the giving of an undertaking, on my understanding what Mr Garnham wishes to do is in relation to a particular piece of evidence seek instructions from an officer who has given the undertaking as to whether in those circumstances an application should be made to you for some sort of restriction order under Section 19 of the Act.

  • Oh, I see, and only for that purpose?

  • On my understanding, that's the basis of his request.

    Of course, lest there be any misunderstanding about this, and as everybody knows, there are two separate sections of the Lextranet system. There is a section which is only available to the Inquiry team, which at the moment contains just over 2,000 separate documents. Many of those documents could not be released into the public domain, given Section 19 of the Act and the ongoing police investigation. Of course, we have seen those documents, we have read virtually all of them, and where they are, as it were, confidential documents, we will maintain their confidentiality. That goes without saying.

    I don't believe that Mr Garnham is asking to look at those documents. What his request relates to are the documents which migrate from that very private section of the Lextranet system to the core participants' section of the system. At the moment, there are not, of course, 2,000 documents on that side of the wall, there are far fewer documents.

  • So all those documents are actually due to enter the public domain because they're statements or exhibits --

  • Well, some of them will, some of them won't. Can I give you a concrete example? The exhibits to Mr Mosley's witness statement have been provided to the core participants on the basis that they are confidential to the core participants.

  • The reason being is that although many of the exhibits are quite innocuous, they relate to the public pronouncements of the European Court of Human Rights or Mr Justice Eady, there are the two offending News of the World articles --

  • There's no question of --

  • Those are not going to enter the public domain.

  • There's no question of them entering the public domain for reasons that I've given several times, and secondly, they're not the sort of document that would remotely fall within the group that Mr Garnham is concerned about.

  • What Mr Garnham is seeking, on my understanding, although I haven't discussed this with him, but he can clarify my understanding if it's incorrect, is that as and when a document migrates from the private part of the site, which only we see, to the core participant part of the site, that document may be of interest in Mr Garnham's view to the officers of Operation Weeting.

    However, the Metropolitan Police have signed up to an undertaking whereby at the moment they only use the documents for the purposes of Inquiry --

  • Yes, but we're actually at cross-purposes here because are we saying it is of interest to the Inquiry, the police investigation --

  • -- or are we saying actually we want it redacted for whatever reason, not necessarily because we don't know about it, but because it might impact adversely on the police investigation?

  • It may be that Mr Garnham's concern is that once he sees -- once the relevant officer in Operation Weeting sees an unredacted witness statement, which is now on the core participants' part of the intranet system, he may wish to have the opportunity to make representations that further redactions be made under Section 19 to protect the integrity of the police investigation. That may be his concern.

  • I'm just teasing out, really --

  • That's why we have to do it -- I'm happy to do it in this way, not only so that everybody hears it but also so that everybody, whether or not they're involved, can feel it appropriate to make recommendations if they wish to.

    Mr Garnham, you can say which it is. Is it because there is a statement that you've seen that actually you think will further the police investigation, or is it because there is a statement you've seen some details of which you think the police may want redacted under Section 19?

  • The immediate prompt for this application is the second.

  • I'm not keen to ventilate what it is in which statement in open forum for obvious reasons, but it's the second that prompts the application.

  • Once you've done that, as Mr Sherborne would say, the cat is out of the bag and it's gone, and I understand that.

  • Sir, that's the immediate prompt. Mr Jay is right to apprehend that in respect of the material on the public side of the divide he describes, I was also seeking permission for that to be shown to a police officer in Operation Weeting for the benefit of the police investigation, and we had offered in correspondence, the correspondence to which I referred, that that officer would be somebody who would sign the confidentiality --

  • Subject to anything that anybody else may say, I have no problem at all about an officer who's fully cognisant with the police inquiry but who signs an undertaking seeing the statements so as to advise you as to what if anything ought to be redacted. I have no problem about that at all, but I'll hear everybody else.

    As regards the further step, in relation to those for the next two weeks who are, of course, Mr Sherborne's clients, I'll rise for Mr Sherborne to consider the matter and possibly discuss with you what the appropriate way forward is and you can identify the statements you're concerned with, because that will make the task of Collyer Bristow rather less intense if they have to speak to three people as opposed to 53 people. You can do that privately and then I'll come back to hear what you have to say.

  • Right, thank you. Does anybody have anything to say about the first situation? That is, obtaining of the confidentiality undertaking that you've all signed from a police officer who is familiar with Operation Weeting, and therefore what might particularly cause prejudice, being able to give Mr Garnham instructions as to redacting some part of the statement for public purposes -- I mean, I'll have seen it and it will be in, but it will be redacted from public purposes if I make an order under Section 19(2).

    Mr Davies?

  • Does anybody else have any observations to make about that?

    Right. So that's a given. Nominate an officer --

  • -- and he can sign a confidentiality undertaking and give you instructions accordingly.

  • I'll rise now for Mr Sherborne to take some instructions and so you can be a little bit less coded with him than you've necessarily had to be with me, and let me know when you're ready.

  • (A short break)

  • Mr Garnham.

  • Sir, thank you for the time. The result of my conversation with Mr Sherborne is that we can arrange this. Provided the Inquiry has no objection, and I anticipate that it will not, we will do it between ourselves by his voluntarily letting me see these statements then we can make whatever submissions we want to you in the light of them.

  • That deals with those statements.

  • You'd better do that quite quickly.

  • It will happen quickly.

  • The second thing is the undertaking. The original letter which began this process from my instructing solicitor of 10 November proposed a willingness to sign a confidentiality undertaking, so that will follow suit and that provides no difficulty either.

    The third point I would raise simply in case it ever arises again, although it won't do this afternoon, Mr Jay suggested that there might be some difficulty about documents obtained under compulsion being passed to the police. I interpolate to say I'm not seeking that this afternoon. And he said there might be a difficulty because of the sort of Saunders line of authority. I would only say this in relation to that: Section 21 is qualified by Section 22. You cannot require somebody to provide a statement to the Inquiry that is incriminating of themselves.

  • Therefore that might be the answer.

  • That may be the answer. I say that just in case it needs to arise on other occasions. It need not today.

  • If necessary and we're short of legal things to do --

  • We can spend an afternoon on that.

  • -- then we can think about that. All right, thank you very much.

    Mr Sherborne, that's all right, is it?

  • Good. I have a request of you, and it's not of the highest urgency but it is moderately significant. I don't think it will cause you too much work. But you have pointed to a number of particularly critical articles -- particularly important, I'm using the word critical -- articles in relation to a number of your clients and have made the point forcefully that there could be no public interest in this particular story and the consequences of harm were very real. And you said, I think more than once, that similar bylines were visible on the stories, in other words written by the same people covering different stories.

  • Yes, in relation to the Jefferies case and the McCann case.

  • Yes. If you could pick out a number of specific examples, and it may be that your clients will have them very much in mind, and maybe they're collected somewhere, if it's difficult, say so, it may be that I will think about asking the specific journalists to deal with the very points you've raised. I'm not saying I will, but I think it's a potentially fruitful line of inquiry.

  • Sir, I'm very grateful for that. In terms of that specific point, namely the overlap between journalists who covered the McCann case and the Jefferies case, that is work which will take very little time to do, I can reassure you. I can certainly provide that within the next day or so to the Inquiry.

  • Yes. I'm not asking you to give me 100 names, because the timeframe within which I'm operating will bite throughout, but you've presented one side of a picture very graphically, and I would just like to make sure that I understand whether there is another side and, if so, what it is, in the context of ethical decision-making at journalist level and at other levels.

    I can always pick these up with editors, most of whom I think are already likely to be giving evidence, but I just wonder whether in relation to some of them it may not be sensible to go a bit further. I'm not saying I will, but I'm saying that I think it's worth thinking about.

  • Sir, yes. We say of course the articles speak for themselves, but I can understand why the Inquiry might want to hear from the individual journalists as opposed to the editors as to why those stories were written.

  • As I say, I will provide those names --

  • And the considerations that went into them.

  • Because that's the other side of the coin. There may be no other side, and I take your point that the articles speak for themselves.

  • It is, and I'm sure that the particular core participants that this refers to would be interested to understand it, if there is another side to their story.

  • Yes. All right. That's food for thought.

  • Sir, may I raise one issue? I haven't seen the text of the proposed undertaking the officer from Operation Weeting would be giving, that is to say solely for the purpose of indicating whether there are any Section 19 redaction issues, but it should be made clear that that is the sole purpose for which the officer can consider the witness statements at this stage and would override any other duty the officer might have to embark on a line of inquiry which might otherwise assist Operation Weeting in general.

  • Yes, I think Mr Garnham understands that.

  • And doubtless it can be drafted and you'll agree something and it will be signed and all that will be done very quickly too.

  • Yes, it will have to be done very quickly.

  • It can be subject to an undertaking at this stage while it's sorted out.

    Anything else? We've managed to conduct a full day. I think it is the first of many.

    Thank you very much. We'll resume at 10 o'clock on Monday morning.

  • (The hearing adjourned until 10 o'clock on Monday, 21 November 2011)