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

  • MR JOHN MOORE WITHEROW (affirmed).

  • Sit down and make yourself comfortable. Your full name for us, please?

  • Is John Moore Witherow.

  • Thank you very much. Under tab 2 of the second file, you'll find, I think, your main witness statement dated 13 October 2011, signed by you and with a statement of truth; is that correct?

  • You've also provided us with a second witness statement dealing with a discrete issue in relation to the former Information Commissioner's evidence. It's under tab 3 and dated and signed by you on 29 November; is that right?

  • You are, of course, and have been since 1995, the editor of the Sunday Times, so you're one of the longest-serving editors in Fleet Street; is that so?

  • I think it's only Mr Dacre who might have served longer, but in terms of your journalistic career, you went first to the Times in 1980 and then to the Sunday Times in 1983. Is that so?

  • You tell us that you've covered stories such as the Falklands war and the Iran/Iraq war. I think on both occasions you went into the war zone?

  • I'm going to ask you questions first of all about your first statement, if I may, alighting on a series of discrete points. The rest of your statement we'll take as read.

    Paragraph 6, please, at page 7832. You say your associate editor is someone who you've appointed as ombudsman to take an independent view in relation to complaints, and you explain what his role is: to interview the writer or writers and subeditors and come to a dispassionate conclusion. How is it that the ombudsman can take an independent view, Mr Wit?

  • Technically he's quasi-independent because he works for me, but he's a very senior figure on the newspaper. He's effectively number three, and he has huge experience. He was a former foreign editor. So we use that experience for him to judge, where there is a complaint, how it should be dealt with. He does take a robust, independent view.

  • Does he have a role before stories are printed?

  • Yes. Sometimes we might consult him in advance and say, "We're thinking of doing this. What's your view on it, with your experience?"

  • Of course, with any Sunday newspaper, you tend to have more time than a daily paper, self-evidently; is that right? Things may reach a fever pitch on Saturdays on occasion, I imagine.

  • Can I ask you about paragraph 7, journalists being written to and receiving a warning if they make professional mistakes. About how often has that happened in the last 16 or 17 years whilst you have been editor?

  • That journalists have been written to?

  • I can't give you an exact figure. I would imagine maybe fewer than ten times.

  • Sourcing now, paragraphs 12 and 13. You explain your practice, which chimes with what we've heard from others. Is it your practice to require more than one source or will you proceed on the basis of one source alone?

  • Generally we try and get more than one source on a story. I think that's just good journalistic practice. Occasionally you will only have one source, and in the end you have to judge: where is that source positioned? What access to the information do they have? How good is it? What is their motive for telling you things? And you have to weigh it up. And we will publish stories on the back of one source if we judge it to be reliable, but as I say, generally we will try and get more. Sometimes we'll need more than two or three sources, and we've even held out a story where we have five sources because we're still not content that we have enough, because we think it's a contentious grey area where you need multiple sources.

  • Yes. As you say, it depends to some extent on the nature of the story and also the potential for litigation, because if you look at the examples you've given us under paragraph 17 -- on some of these there may be a litigation risk, others there may not be, but of course, notwithstanding that, you'd always wish to be punctilious and careful.

    The first story you refer to, "Gordon Brown wants Ed Balls as chancellor", 31 May 2009, is this right, you proceeded on this story on the basis of only one reliable source because it was not possible to corroborate it?

  • Yes, and because that source was sufficiently reliable.

  • Yes, and that was a judgment you were able to take and you tell us that of course you were right. That was in the last sentence of paragraph 17.

  • Another example: "SAS seized by rebel Libyans". This, again, is a story where there would be next to no litigation risk, is that fair, but you nonetheless wanted to establish its credentials and you say -- I think on that occasion you were able to substantiate the story, were you not?

  • The next example -- I'm not going to go through all of these -- "Peer in flats scam fined £125,000". This is October 2010. There was possibly a litigation risk here, is that fair, but you were able to get the story double-sourced and that presumably was from another reliable source; is that correct?

  • It was, and it was particularly important because it was a story we'd broken, so to take any development on, we had to be absolutely 100 per cent certain we were right.

  • Thank you. Then the cash for honours story, paragraph 21, you had two sources there, I believe; is that right?

  • Can I ask you, please, about paragraph 25, stretching the rules and use of subterfuge. This is a theme you've taken up in more detail in JMW1, your piece in the paper. I think it was the news review section, but I may be wrong, on 17 July 2011, which I borrowed from for the purposes of my opening submissions, if you don't mind.

    Of course, the rules have to be stretched, but is there a principle which guides you as to how far you can stretch the rules in any given case?

  • Well, it is. I mean, the principle is: is it in the public interest? And it's something that we think about very hard and debate hard, and then look at the methods we can use to -- if we decide a story is in the public interest, then we consider the methods we can deploy to get that story. This is when subterfuge comes into play.

  • Very often when you're looking at a story in advance, the assessment of the public interest is difficult because you don't know what the story is going to amount to. You may have fragments of a picture and you have to make an assessment then as to the degree of intrusion which may be justified to build those fragments up into a complete picture. How do you make that assessment when very often little is known about the nature and strength of the story?

  • That can be the case. Generally, in my experience, it's fairly clearcut. There's an allegation of serious wrongdoing or criminality or the behaviour of a politician that would seem unethical, and I think for most right-minded people, their definition of public interest is pretty clear. I mean, obviously we have the PCC code, which has a pretty good definition, but most of the time I think -- I can't think -- the cases that are brought to me have already been sifted, in a sense. The ones that aren't clearly, in the view of the senior editors, in the public interest don't even reach me. By the time they do, I think we can establish pretty clearly that it would be in the public interest.

  • Are there situations where you work on a hunch because your instinct points in a certain direction, and therefore a degree of fishing is appropriate to substantiate that hunch because you know from past experience that it often is substantiated if you do go fishing?

  • Or it doesn't work like that?

  • We wouldn't do fishing. In fact, an investigation was proposed to me very recently where I don't think there was sufficient -- I didn't think there was sufficient allegations to justify it, and I concluded it was a fishing expedition --

  • I don't think you mean "allegation". You mean, if the allegation is there, sufficient basis to the allegation to justify it?

  • Well, the journalist had a hunch, and he didn't have the allegations, and that to me seemed like a fishing expedition, so we rejected it. I think you need serious allegations.

  • There are a number of stages, maybe. The hunch and suspicion may be the first page. The allegation, unsubstantiated, may be the second stage. Then the allegation substantiated by some evidence may be the third stage. And the stages, of course, tend to merge a bit into each other.

  • It's on as bit of a spectrum. But in terms of the subterfuge which the Sunday Times has used over the years -- obviously we know about Mr Mazher Mahmood and his methods, and I'll come back to him in a moment, if I may, but it's clear from what you say in paragraph 28 and from other evidence which is available that the Sunday Times has used blagging in the past; is that right?

  • And it has used impersonation?

  • But it draws the line at phone hacking and has never used that?

  • As a matter of principle, why?

  • Well, I didn't know about it, for a start, but it's illegal and it seems quite unethical.

  • Okay. May I ask you now, please, about private investigators and external providers of information, which is paragraph 31. We have to be careful to define our terms and be clear what we mean by "private investigator" and "an external provider of information". An external provider of information may not go out with a grey cap and start snooping, but may or may not confine himself or herself to publicly available data. What steps do you take to satisfy yourself that your external providers of information are keeping to that which is in the public domain rather than potentially committing breaches of Section 55 of the Data Protection Act?

  • We've only used two private investigators in the past, and both are well known to our journalists and there's a clear understanding between the journalists who use them and the investigators that they must abide both by the law and the code.

  • These are private investigators properly so-called. It's more the external provider of information who is sitting in an office, maybe with access to various data sources, some of which may be publicly available, some not. It's the extent to which you can police what they're doing, Mr Wit.

  • Yes. One may be we've used an actor in the past, for example, as part of a deception. That person is not a private investigator but it's part of subterfuge. The point is our journalists make sure that they behave in what we regard as a proper way.

  • In relation to Operation Motorman, if I can take this quite briefly -- it was under your watch, of course, but I think the evidence demonstrates, after the correction was made to the Information Commissioner's table, that there were -- was it four taskings which one or possibly two Sunday Times journalists were involved in?

  • Have you made any further enquiry into the circumstances?

  • We have. Because it's a long time ago and the journalist has left, we've had some difficulty, but we've established in one case that they were trying to trace the phone number of a former Home Office official who we couldn't obviously contact through the Home Office. They acquired the number of this person and telephoned him as part of a story. It was contacting them to respond to a story. So in my view it was just good journalistic practice to contact them.

  • I won't debate the merits of the public interest defence in relation to that, but we hear your answer.

    Can I ask you, please, about external sources of information now, which is paragraph 36 and 37.

  • Just before you do that, would you agree that the editor must remain responsible for the conduct not only of his or her journalists, but also any third party that he or she uses to obtain information?

  • Yes, I think the editor is ultimately responsible.

  • Thank you. Paying fees to external sources of information. This occasionally, on my understanding of paragraphs 36 and 37, may encompass confidential sources. Is that correct, Mr Witherow?

  • But only very occasionally.

  • You refer to it in the context of an exclusive interview, but there will be occasions when a source which wishes to remain anonymous comes to you with a story, is this right, and they'll be paid for that story?

  • Yes, rarely, but we do.

  • You say:

    "Whenever possible, we try to make the payment to charity."

    Why do you do that?

  • Because there's always a suspicion that when you're paying for some information it may colour the nature of the information, and we try and exclude that as much as possible. If the payment is made to a charity, I think in some way it helps to cleanse that.

  • Does the source, out of interest, know that's where the money is going to go? Otherwise it wouldn't affect the integrity of his or her information.

  • Well, it is agreed with the source that it would go to charity.

  • Aside from the -- of course it wasn't your story, was it, the Pakistani cricketing case -- that was the News of the World, not the Sunday Times -- but what sort of sums are we talking about here for these stories on the rare occasions that sources are paid?

  • Oh, very small. I mean, I don't know exactly. 1,000, 2,000, that sort of sum.

  • Paragraph 38, please, Mr Witherow. Just two points. The first point: the code, you rightly say, notes that there is a public interest in freedom of expression itself. Of course, the code is clear, but it's an argument which is in danger of pulling itself up by its own boot straps and justifying any intrusion of privacy. Is that how you interpret it or is it just one factor in the balance?

  • I think it's one factor.

  • How much weight do you give to it?

  • I think when we look at the public interest and the use of subterfuge, it's pretty clear cut that it is things such as criminality and exposing wrongdoing rather than a general freedom of expression argument.

  • Okay. Then you refer to the concept -- and this is one which has been raised with numerous editors sitting in that chair:

    "We're not interested in the private lives of individuals unless it has a bearing on their public role."

    How would you define "bearing on their public role"?

  • That it would influence the way that they conducted their public business, probably in a detrimental way.

  • So it's not sufficient, as I think one of the witnesses I've heard has suggested, that because an MP is an MP, his or her private life is of sufficient public interest to justify publishing details about it?

  • I would be inclined not to do that, unless the MP had become a particular exponent of a policy which exposed him to hypocrisy, which would be a different argument. But generally, I think, we would respect it.

    For example, we have been given private information about ministers involving their financial affairs which we could see no public interest in publishing, so we haven't.

  • Are you looking for some sort of objective factor here in the context of bearing on their public role rather than whether there's a perception that a particular piece of private or confidential information might have a bearing on their public role?

  • I think we veer towards being very cautious about intruding into private life unless we can see a clear cut public interest.

  • You give some examples starting at paragraph 42 of some public interest stories. First is the bribery in relation to the World Cup and Lord Triesman, who'd made some public general allegations about corruption and so you decided to go undercover, and my understanding is two reporters posed as acting for a US company; is that right? And therefore used subterfuge?

  • You say that the justification for it was the very public general allegations which Lord Triesman made and which therefore were the springboard for your investigation. You had an evidence base which justified you proceeding?

  • That and there were other widespread allegations about corruption within Fifa.

  • Then the Baroness Uddin example. Insight, May 2009. This is dealing with a main home point outside London. Again, you say there was a clear public interest in proceeding with that story for the reasons you give and you have the evidence base.

  • Unless you wish to, I'm not going to go into any of the other specific matters there. Can I ask you, please, some general questions before I move on. Your relationships with politicians, particularly high-level politicians: could you give us a thumb name sketch of how often they occur, who you have them with and who accompanies you?

  • We will see the prime minister and the Chancellor of the Exchequer and senior cabinet ministers from time to time, particularly at party conferences, occasionally in Downing Street. Invariably, I go with my deputy or a political editor. It might be a lunch; it might just be a cup of tea.

  • You can obviously speak from your perspective. What is your purpose in attending these meetings?

  • Obviously there's a mutual interest but our purpose is to establish what is on the minds of the politicians. The very fact of what they talk about, what's preoccupying them, gives us some indication of what's important in their minds, in the running of the country, and what they leave out can be almost as interesting as what they talk about. So it steers -- you very rarely get information that you would put in the newspaper, but it gives you background.

  • It may be you're the wrong person to ask, but what do you infer to be their purpose in wanting to meet with you?

  • I think they want to maintain contacts with newspapers. They see it in their interests to do that. They may hope to argue a case about some particular issue of the day and persuade us that they're doing the right thing.

  • The last election, the May 2010 election -- we had evidence about this before lunch -- who did the Sunday Times support?

  • Because we thought they were the right party for the future of the country.

  • You say "we". Who is the "we" embodied in that?

  • The "we" is -- about four or five senior editors on the paper will, in advance, sit down and discuss what we think. In our reporting of politics, we're generally pretty impartial, but our columnists clearly have views, and then we will, in an editorial in advance of the election, generally come down one side or the other.

  • If we can go back a period of time, but not very long, to the previous Labour government, presumably you had similar interactions with the then prime minister; is that right?

  • From your perspective and from his perspective, the purposes of these interactions were more or less the same, were they?

  • You heard what I put to Mr Harding before lunch -- and it may be that it is just a perception issue -- that the important understanding of how public officials work is obviously of significance to you and to other reporters, whether they be politicians, generals, bishops, judges, whoever. It's the question of influence on policy that is at least the perception of difficulty. Do you have any observations to make about that? I mean, you heard me discussing it with Mr Harding.

  • Yes. Generally we're they're not to try and influence in any way. We're there to try and get information, to understand their thinking, to understand their arguments, why they're pursuing certain policies in the way they are, and that's valuable to us because that doesn't always come out. But actually, when you meet them in private, you don't often learn much more than you would from their speeches or when they're giving interviews on television. It's remarkable how little extra information you do gather.

  • Do you ever get the feeling that they are dangling ideas in front of you to see your tutored, your informed reaction in order to assess whether they're palatable ideas?

  • Not really, because most of these ideas will already be in the public domain. We will have commented on them. They'll pretty well know what our position is.

  • Moving off that theme on to others, we've had evidence, Mr Witherow, that the Information Commissioner's office wrote to you on 11 December 2002 asking you to attend for interview under caution under Section 55 of the Data Protection Act. Do you recall that?

  • I think it related to cases involving Lord Levy and Lord Ashcroft; is that right?

  • It was Lord Levy, I believe.

  • Not Lord Ashcroft?

  • Not to the best of my recollection.

  • That invitation was refused through a solicitor's letter. Why?

  • Well, this related to a story we did about the tax affairs of Lord Levy and we had discovered that -- first of all, Lord Levy was an immensely influential figure in the country at that time. He was the chief fundraiser for the Labour Party and was a close friend of the prime minister, Tony Blair. We had discovered that he was paying far less tax in one year than in previous years. So we wrote a story saying that he was paying in that year I think only £6,000 tax. We put it to him and he sought an injunction, and that injunction was heard by Mr Justice Toulson and he rejected it, and we used the basis of Mr Toulson's judgment to say to the Information Commissioner that we didn't think it was justified. There was a public interest defence in running the story and they seem to have accepted that.

  • They didn't have power to compel you to intend for interview, of course, but you heard nothing further following the solicitor's letter written on your behalf?

  • There was a story some time ago now, obviously, in your paper in which it was said that Mr Michael Foot, who of course became the leader of the option but he wasn't at the time, was a KGB agent; is that correct?

  • That story was incorrect, was it?

  • Yes, it was -- thank you for reminding me. It was very early in my editorship and -- it was 1994, I think.

  • It all comes out here, Mr Witherow.

  • It came from a very senior KGB defector, Oleg Gordievsky, in a book, and I think it's fair to say I overcooked it and cocked it up.

  • That's not an expression which I've heard often.

  • It may be one could turn that around in your favour and say that lessons were learned from that. I don't know.

  • They were. Mr Foot successfully sued us, and I believe built another wing to his house on the proceeds.

  • Can I ask you, please, some questions now about your second exhibit, JMW2, which is under tab 2B, I hope, in that bundle. Unfortunately, you're going to need quite good eyesight to scrutinise these. I'm going to take the second piece first, if that's okay, Mr Witherow. The second piece, towards the bottom of the page, concerns what happened in 2000, I think, when you carried out an investigation into one property deal which Mr Brown carried out; is that right?

  • Could you, in a nutshell, tell us what that was about. I'll ask further questions, but just give us the background.

  • The background to this was that Insight, our investigative team, were studying a number of financial arrangements of senior politicians and discovered that Gordon Brown, when he was shadow chancellor, had purchased a flat which came from the estate of Robert Maxwell and in which Geoffrey Robinson had played a part as a director. This followed -- came soon after Peter Mandelson had resigned as a cabinet minister because of a loan to Geoffrey Robinson, so we considered it worthy of investigation. In the process of doing that, we believed Mr Brown had purchased the flat at a cheaper price than valuers had put on it at the time.

  • Well, that was essentially the story, that it appeared, on the face of it, that he'd purchased a flat more cheaply than the market value would put.

  • As this piece records in the third column -- it isn't that easy to read but I was able to do so yesterday evening, so I can do it again now. You say at the bottom of the third column:

    "At that time, the purchase price of the flat was publicly available information, [presumably because it was on the Land Registry but I think the position now with the Land Registry may have changed] but it was a long-winded process to get it, involving applications to the Land Registry. To speed up the process, a reporter asked Barry Beardall, a real businessman who sometimes acted as an entirely legal front for the newspaper, to check the purchase price by calling Allen & Overy, who are Arthur Andersen's lawyers. Beardall, using his own name, discovered that Brown had paid £130,000, at least 30,000 less than the typical price of flats in the area."

    So it's right to point out that the information was obtained without deception by Mr Beardall because he used his own name. Is that the inference one draws?

  • Partially. I think there was some subterfuge there because he didn't declare he was working for the Sunday Times.

  • No. Allen & Overy gave out the information to him in any event; is that right?

  • Can we just deal with the public interest justification for the slight degree of subterfuge which was involved, because you say: "Well, we could have done it by a long-winded process, and possibly one involving some expense." Given that you could have obtained this information lawfully, why use any subterfuge at all?

  • I can't answer that exactly. I assume they were just seeking to corroborate but I don't know the absolute answer.

  • What happened later is that Mr Beardall acquired a criminal record for smuggling alcohol into this country, I think it is right to say, and I think he was convicted of that in either 2001 or 2002, but the Sunday Times didn't know that until after he was charged, and it was at that point that the Sunday Times dropped him?

  • As a separate matter -- can we understand this -- the Abbey National, which held Mr Brown's mortgage for the flat, wrote to you alleging that someone had called its Bradford call centre six times pretending to be Mr Brown and was given information. There was never any conclusive evidence to substantiate that matter; is that right?

  • But from your own knowledge or your own enquiries, did someone on your behalf pretend to be Mr Brown to blag that information?

  • Okay. The letter only emerged the week before this article, which I think was some time last year and then was made available, and you say in the penultimate column:

    "The Sunday Times is still trying to establish whether any journalist then on the paper sought to access Brown's authority information. Even if they had, such activities would have been legal, as the story was clearly in the public interest."

    So is this right: since this article was written, you've been able to ascertain that someone acting on your behalf blagged the information?

  • We're pretty certain, yes.

  • But this has nothing to do with Mr Beardall; is that correct? It's someone else?

  • Okay, so that deals with one example of blagging in two different respects, really.

    The article on the top of the page is dealing with something else altogether. It's dealing with the Sun and Mr Brown and -- or Sarah Brown's child, Fraser, who was born in 2006, and it covers those matters and that is something entirely different.

    Could we just look at this, though, a little bit. This is really reportage on the activities of someone else, not, of course, the Sunday Times.

  • But can we be clear, though, what the allegation was. If you look at the third column --

  • Sorry, it's this piece here. It's still the same exhibit.

  • "So bitter and so wrong".

  • This is all to do with medical details, isn't it, Mr Jay?

  • It is, which we're not going to go into, although they all are in the public domain. It's what you say about what the then prime minister was saying. If you look at the third column, which is quite short, perhaps beginning:

    "However, by summer 2009, Brown's leadership was unravelling."

    Do you have that?

  • "Behind the scenes, the prime minister raged at the coverage he was getting in News International titles, particularly over the war in Afghanistan. Eventually, he could contain himself no longer and rang Murdoch to remonstrate with him. Murdoch is said to have distanced himself from the coverage, pointing out that it was up to his editors how material was presented."

    What was your source for that information, can you recall, Mr Witherow?

  • It's separate, I think, from something which allegedly happened later, or did not happen later at all, which is the Sun switching allegiance to David Cameron, which was at the Labour Party conference in 2009, which you refer to in the penultimate column, don't you?

  • I don't think it's suggested there that there was another conversation between Mr Brown and Mr Murdoch; is that correct?

  • Okay, well, that may tie up or not with some evidence we've heard recently.

    What influence, if any, does Mr Rupert Murdoch have over what goes in your paper, particularly when it comes to matters such as political allegiance? Would you help us with that?

  • He doesn't have any. You heard from Rupert Pennant-Rea. He will talk to me periodically, but I think you'll discover that the Sunday Times has taken a robustly independent line on political allegiance and we didn't support Tony Blair's government when other News International titles did.

  • Yes, okay. How frequent, if at all, are your conversations with him?

  • Well, it will vary. Sometimes I won't hear from him for several weeks, and then sometimes I'll hear once a week he'll call.

  • Is the picture fairly similar to the evidence we've received from Mr Harding, that a particular issue will interest him and that will prompt his call?

  • Yes. I mean, in the case of the Sunday Times, he is often interested to know what we're doing, what sort of stories we're covering, but then the conversations will often be very general about economics, the eurozone, American politics, that kind of thing.

  • In relation to the eurozone, I think we know the position Mr Rupert Murdoch takes, but for those who don't know, what is it?

  • I think he shares our position, which is highly sceptical of the euro and the whole concept of uniting Europe.

  • But that is, as it were, a coincidence? There's no causal connection between the two, his having that position and you having that position?

  • May I move on to another subject, if I may. Mr Mazher Mahmood. Is it right that he was originally employed by the Sunday Times but before you were editor?

  • Do you know the circumstances in which he and the Sunday Times parted company?

  • Right. Maybe we should wait until others tell us more about that, if it's relevant, but the circumstances in which he was, as it were, taken back following the demise of the News of the World, 10 July 2011 -- we know that Mr Mahmood is now writing for the Sunday Times. Why?

  • Because I think Mr Mahmood is an exceptional journalist. He's proved himself over many years in exposing criminality and the stories already he's done for us have been excellent.

    He only really uses subterfuge. That is his methodology. Through that subterfuge, already for us he's exposed how people can enter this country illegally using false ID. He's exposed insurance scams where insurance companies are being ripped off quite cynically. So all the sort of journalism he does I think is absolutely justified.

  • Did you receive any assurances from him as to the methods he used and whether they were constrained within the bounds of legality?

  • Yes. Obviously I asked him before he joined us was he in any way involved with phone hacking. He assured me he wasn't. I made independent enquiries about that and got assurances there was no suspicion relating to him over it.

  • Your independent enquiries, were they of former journalists at the News of the World or wider?

  • Both, and we made enquiries of the MSC, which has been investigating this.

  • Just before you go on, were you concerned about what you've now read?

  • I didn't know that -- I knew the broad allegation in the past. I didn't know the detail until now. I think what happened -- I mean, when -- this is going back to the 1980s. I think reading the detail now, it seems incredibly trivial and I don't know why he did what he did, but I think it was -- he was a young journalist who panicked and did a silly thing, and I think that's what he would say, but I wouldn't let it influence me now because he has such a good track record since then.

  • One isolated example -- it's for others to decide really what significance to accord to this -- of a successful complaint. Under tab 44, which is the third bundle, this is a complaint to the PCC brought by Ms Clare Balding, who is a well-known broadcaster. We can see the circumstances. It was a piece by Mr AA Gill, reviewing her television programme, "Britain by Bike", and we can see the very pejorative term that was used. Did you seek to defend this one, Mr Witherow?

  • Can you explain why?

  • Well, it was brought to my attention in advance. I mean, this, first of all, is a comment piece, a television critique by Adrian Gill, who is a well-known, acerbic and quite controversial writer. In the context of the piece -- it was about cycling around Britain and in the context of the piece he was very flattering about her and praised her, and the issue came up: "Should we include it?" It wasn't as if he was outing her. She was openly gay and that was fine but -- and we thought it was a matter of freedom of speech, that Adrian should be able to make a comment like that because we didn't regard it as pejorative in the context. There are, for example, several websites that use this term by gays.

  • Is that really a good argument? Websites, unregulated, can use all sorts of terms, some flattering, some extremely pejorative. You wouldn't want to set them up as yardstick or litmus paper test, would you?

  • These are not pejorative websites. They are gay websites that use that term in a positive way.

  • It's the meaning of "pejorative", whether, I suppose, a right-thinking person -- but I, of course, accept that that has an element of circularity in it -- would say that the term "dyke" is pejorative in this context. You say it isn't, but the PCC clearly thought that it was, didn't they?

  • That's right. They interpreted the code and concluded that it was. We wanted a debate about this. We thought it was worth the question of free speech. They decided against it, so we have taken that into account.

  • What happened to the adjudication? It was naturally enough published in your newspaper, no doubt. Can you remember where?

  • Was it the subject of agreement or negotiation with Ms Balding and the PCC, can you recall?

  • Invariably the publication is agreed with the PCC.

  • And you accept their advice, do you, as a matter of policy?

  • It may be an unfair question because you haven't been given notice of this, but how many successful complaints have there been against the Sunday Times, say, over the last five years? Could you give us some steer, some feel for that?

  • A very small number. I couldn't give you an exact figure. And many unsuccessful ones.

  • Yes. Okay. I'm in tab 47. This is a very recent piece by Mr John Simpson, the extremely well-known broadcaster. There are many matters of opinion here which it's not necessary to go into. Naturally enough we've read it, but it's the two -- well, one personal example he gives and then one piece of comment at the end about Watergate. The personal example is on page 2 of 3, level with the upper hole punch. Do you see that?

  • When, to cut a long story short, half a dozen freelance journalists and photographers descended on his ex-wife's house to get her version of a story. Then, according to Mr Simpson:

    "She refused, and from Thursday afternoon to the following Monday morning, they besieged her, taping down her bell so it rang for hours on end, phoning her in the middle of the night. The police refused to intervene. The entire, unpleasant exercise was mounted against an uninvolved woman, solely to score points against a couple of viable newspapers on a matter of no conceivable public interest."

    We don't know anything about the newspapers involved, but is this a familiar story to you or not? Familiar account of the sort of things which have gone on?

  • Well, it's familiar in the sense that pieces like this have been written, but I'm not personally familiar with it.

  • I don't think it was necessarily this story, but this approach, this way of dealing with people.

  • Personally, I think it's unacceptable.

  • Yes, I accept that answer but I think the question is: is this a type of behaviour which is more than just once in a blue moon? Or was more. I'm not talking about since last July.

  • I don't know the answer to that. I mean, our journalists are instructed if they go to a house, they will ring the doorbell. If the person asks them to leave, they will leave and that's the end of the matter. Sometimes they will put a letter through the letter box. But we wouldn't do this. I have no idea how much this goes on.

  • But the mere fact that you've had to give that instruction to your journalists suggests that there is an underlying concern that other editors might take a slightly different view.

  • It's possible. I don't know how much of this goes on at the moment.

  • Okay. Just one or two short points on Flat Earth News, under tab 49. I hope we've had it copied for you. Is it in that version of the bundle? It may not be.

  • We'll provide it to you. (Handed)

    According to this, page 274, the Sunday Times hired a former actor from Somerset called John Ford to work as a blagger; is that right?

  • How often was he used, do you know?

  • I don't know precisely, but he was used by Insight on various investigations. I think he was used on the Fifa one, for example.

  • I think it's pretty obvious from his skills, but he was employed because of his skills for impersonation; is that right?

  • Then Mr Davies covers David Connet, who was hired on a freelance basis as part of the Insight team but the employment tribunal felt that that wasn't right, he wasn't a casual employee, and awarded him compensation; is that correct?

  • The Insight team was closed in July 2005; is that right?

  • It wasn't closed; it was incorporated into the newsroom. It was a separate entity with a separate office and it just became part of the newsroom.

  • Why did that happen?

  • Because we thought they should be better integrated with the news-gathering operation.

  • It wasn't for reasons of finance, was it?

  • Because this was the famous team, I think, who were central to the thalidomide stories in the late 1960s and early 1970s, wasn't it?

  • Yes, and then their successors have done stories such as Fifa. The name continues.

  • I know you wanted to tell us something about the Internet and the competitive disadvantage that places you in and also issues surrounding regulation. What assistance can you give us? What are your views on the unregulated Internet?

  • Well, clearly any kind of regulation that comes out of this process I think has to take into account what goes on on the Internet, and as we transit to digital platforms, we are bound by self-regulation at the moment and will continue to be so. But the great threat to us, I think, is that there will be out there unregulated media who can base themselves offshore and can avoid regulation, and I think this is a great dilemma facing us: how do we go ahead with a responsible press or digital media in this country while there are those rogue elements out there?

  • There are two types of Internet that one would have to think about. First of all, there's the individual person who tweets, who has a personal blog which might be followed by a few people, or it may be followed by many, but who isn't in the course of a trade or business of publishing news, even if it's only recycled news. Then there are those who do offer a wider service, so-called, by publishing a lot of material and who also seek to obtain advertising revenue to make it commercial. Do you think there should be a distinction between the two?

  • I'm not sure there should. What we can't foresee is what will evolve from the Internet. You may have serious publications that begin to appear that have -- can afford investigative journalism, can break stories and can behave maybe in a reprehensible way. There'd be no particular control over them if they were based offshore.

  • Well, I don't know. They must be in the course of a trade or business then. They're doing it for money, because otherwise -- I mean, they have to pay their reporters.

  • You would assume they would be doing it, whether it's by advertising or by some means like that, yes.

  • So the question then arises whether there's any mechanism to bring them into a club, if they are based offshore, whether consensually or otherwise.

  • It may be the more responsible ones might wish to be part of self-regulation, because they could see advantages to it, but I think there's always the danger you're going to have rogue elements there that wouldn't want to be part of it and would actually extol the virtues of not being censored, so to speak.

  • I understand that, but that's not just an Internet problem.

  • People not wanting to be part of the so-called club.

  • So that's the Internet. There was some other matter that you wanted to --

  • I think we're moving on now, Mr Witherow, to your ideas for future regulation. May I take it in stages. Is the answer you've given me today the same or a different answer than the answer you might have given me on 14 November 2011 when this Inquiry started?

  • No, I think we have learnt a lot from in Inquiry already. Some of the practices -- we've already begun to adopt certain methods which I think have emerged from this. For example, we always had a rigorous process over subterfuge: why should we do it? How do we justify it? Are we sure it's not a fishing expedition? But what we do now is we have a paper trail to ensure that if we need to go back on this, we have records. So whenever we discuss this, we keep minutes and we track it through as the process goes on, so we have a contemporaneous record of it and that's something, I think, that's come out of this.

    And I think in future if we use -- if we ever use private investigators, we would need a formal agreement with them rather than an understanding.

  • Mr Harding was concerned -- and I understand that concern -- that it could become bureaucratic and take up too much time. Obviously it depends upon the selection of those stories or investigations that fit into the category that you do that for.

  • Have you found that a problem?

  • Not a problem, because we don't do that that often, so there's not much bureaucracy. It's maybe one meeting a month you're minuting and then any follow-ups. So no, it's not a problem. I think it's just good practice.

  • Looking at the bigger picture rather than the particular practices you have adopted as a newspaper since the Inquiry started -- turning to the bigger picture of regulation and the future of the regulation, what are your views, please? Can you share those with us?

  • As you've heard from James Harding, I would have very serious doubts about some sort of statutory body that's been set up by Parliament for some of the reasons he said, but also, I think -- and I do think that in future politicians would be tempted to intervene. If you just think back on the BBC and the dodgy dossier, the huge furore that burst out over that and the resignation of the Director General. I think it was because Number 10 thought they had some stake and some control in the BBC, and if you had, in future, a row -- and the press is far more partisan and polemical than the BBC can be -- I think they would be sorely tempted in a similar sort of row to take some action because they already had a beachhead, in a sense, and a stepping stone towards amending it. So I broadly agree with that.

    I also think that Britain, when it -- as a kind of beacon for liberty and freedom of the press, has to consider its position. We already know our reputation because of -- our libel laws have created quite a lot of controversy around the world, the fact that scientists can be sued here. I think if Britain were to move towards some sort of statutory body, it would send a message worldwide that we were -- however much well-intentioned it was, that we were prepared to take a tougher line with the media.

    When you look at freedom of expression -- there's a body called Reporters Without Borders that track freedom of expression. Of the top 25 countries that are most free, 21 of them have self-regulation and two have the equivalent of the first amendment: the United States and Jamaica, I think it is. I think only one has a proper statutory control, Hungary, and I'm not sure if that's the sort of message Britain wants to send out to the world.

  • I'm not sure that I'm thinking of statutory control. You've heard the discussion this morning. You've doubtless read the Times leader. The fact is that it seems to me to be a concern -- and I've said this to a number of people, including this morning -- that over the last 40 years there have been a number of instances of great concern. Reports are set up, people earnestly strive to produce something, the press say, "Actually, we've learnt a tremendous lesson from all this and it will be much better", and so the last-chance saloon came into our lexicon, and then a few years later there's something else and a few years later there's something else. I just ask whether there doesn't have to be something else that prevents the need for this sort of Inquiry again and again.

  • I think it's possible to come up with a tougher self-regulatory system that will prevent this. I'm not sure it would always prevent it. I think there is always going to be controversy in the press and the coverage of the freedom of speech in this country and I'm not sure that's a terribly bad thing. I think there should be controversial debate.

  • I'm content about controversial debate but I'm equally concerned that we should look forward with any equanimity to the sort of Inquiry that I've been charged with conducting at great public expense and expense, of course, to all those who are participating, particularly if there isn't an understanding from everybody that they all have to be involved, because if some people are out, for whatever reason, then the whole thing becomes extremely difficult, doesn't it?

  • It does, but I would have thought there are methods one can use to encourage, indeed coerce people to participate. Financial penalties.

  • Well, now, tell me about that.

  • Well, if you didn't --

  • I'm not trying to sound too enthusiastic. I'm just trying to learn what I can learn.

  • I wonder if you were not part of a self-regulatory body and you end up in court, that the courts could take a particularly tough line on you for not being part of regulation --

  • But that would have to be statutory. Whether one likes it or not, courts are governed by the operation of law, and if I sat in a -- the story that it's all the length of the chancellor's foot, I'm afraid is long since gone. If I sat in a court and said, "Right, well, because you don't take part in the regulatory system, I'm going to award exemplary damages or aggravated damages", then somebody would challenge me and say, "On what principle of law does that operate?" and unless I can point to a statute that permits me to do it -- and that might be the answer. I think there is great force in the point. But unless I can point to a statute that allows me to do it, then it's going to be very difficult.

    If I can point to a statute that allows me to do it, I have to have set up that statute. So to some extent, the answer becomes self-defeating of your ultimate aim.

  • I'm not trying to catch you out, Mr Witherow.

  • I know. We're trying to think of ways too. VAT we've explored. I would have thought there would be some financial penalties for not being involved.

  • Well, if all those who are working on it have any ideas, I'll be very pleased to receive them.

  • You've given us some emerging ideas. Any further thought you could share with us?

  • I think your ideas on arbitration are very interesting. Or mediation. We used mediation in some defamation cases.

  • I think they're interesting too, but more significant than that, again, if you're going to require people to go down that route, there has to be a framework that requires it. You'd have to set up an arbitral system --

  • -- which allows it to happen very quickly, but that would be law again.

  • Yes, and it would replicate the courts, in a sense, wouldn't it?

  • In one sense, I don't mind that. What bothers me is that if it is purely consensual, those who have the greatest financial muscle to take on the press may say, "Well, I don't want to bother with that. I'd rather use my financial muscle to bludgeon the paper that I want to sue into submission, because I can overwhelm it", and that was a point that got Mr Barber thinking and I'll doubtless hear from him at some stage when he's come up with a solution.

  • But again, the courts can take into account if somebody chose not to go to arbitration.

  • Absolutely. But it would all require some basis in law which permitted the judge to take that course. That's my point, I think.

  • Are you likewise in favour, Mr Witherow, as is Mr Harding, of harmonising the public interest defence across all areas of the criminal law, including the offence of hacking, to use the vernacular, under RIPA 2000?

  • I think we have an extraordinary anomaly now where only the Data Protection Act gives us that protection. Other Acts don't. So in a sense, you're challenging the press periodically to break the law because they think it's in the public interest. Is that a good thing? Well, then the DPP would turn a blind eye because it was in the public interest. Wouldn't it be better to put it into the Act that there was a public interest?

  • You might do it on the basis that you invite the director to identify his policy on public interest. So then there are lots of levels. I think I've said this before. First of all, there's a decision for the director to make: can I prove the offence? What do I think of the public interest point? Then there are potential arguments on abuse of process. Then there's -- well, on the basis the judge has rejected that, then there's the jury, and one doesn't have to go far back in the past to see what juries have sometimes made of these cases. Then actually there's another protection. It's called the judge, who can decide that however much this was a crime, and even though it isn't quite in the public interest, because the jury obviously can't say that, there is a great force in the argument and therefore impose a nominal penalty. There are lots of routes.

  • But if you had a public interest, you could probably avoid some of that. I mean, we are constantly presented with the dilemma: should we break the law because we believe it's in the public interest? The Bribery Act, for example. If we could expose criminality by a bribe, I think we'd do it and I think the point is to say we'd be open about it.

  • I understand. Was there any debate at the time of the Bribery Act about the problems that it would throw up?

  • Yes, there was. I think several newspapers made representations asking for a public interest --

  • And Parliament rejected the idea?

  • The Secretary of State did, I think.

  • Well, and then Parliament.

  • Do you think the climate is rather better now or rather worse? You don't need to answer that, Mr Witherow.

  • May I conclude, Mr Witherow, with two final general questions: first of all, what is your vision for the paper and in what way will you realise that in the way you lead your organisation?

  • Newspapers are caught up in an absolute revolution at the moment. We've never had a challenge like this in more than 200 years, far greater than radio or television, because we're being challenged by the printed word online, digitally, and the vision for any newspaper is: how do you continue to publish in print and digitally and seek to try and make enough money to fund good journalism? Going forward is -- that transit is: how long will print survive? How do we make digital tablets and the Internet profitable? And it's one of the biggest challenges facing publishing since we first started.

  • Finally, in what respects does your organisation, in particular the culture of your organisation, reflect your leadership?

  • You have to remember the Sunday Times is a very big newspaper with multiple sections. The culture might vary from one to another because they're aimed at different readerships, if you take style or the business section, for example. The overriding culture must be that we strive to produce excellent journalism with integrity, accurately, and that both informs and entertains people.

  • Those are all the questions I have for you, Mr Witherow. Thank you very much.

  • Mr Witherow, unless there's anything you wish to add, thank you very much indeed.

  • Sir, in relation to today's witnesses, there are two statements to be read. Pia Sarma and Darren Singer. They will be formally incorporated into the Inquiry's record and placed on the website. There may be one more, but we're looking into it.

  • All right. I ought to make it clear that you've said several times over the last few days that we'll take this part of the statement as read or you've identified the names of witnesses. I wouldn't want anybody to think that by not going into evidence orally, it is of less significance. It's merely a consequence of the amount of material which the Inquiry has to ingest and the time available within which to ingest it. Thank you.

  • Sir, amazingly we have overrun by only two and a half minutes. May we pause now before moving seamlessly or otherwise to another newspaper altogether?

  • Certainly, we'll have a break now.

  • (A short break)

  • Good afternoon, sir. The rest of this afternoon will be taken up by two witnesses from the Guardian newspaper, Mr Elliott and Mr Rusbridger.

  • In advance of that, there are a number of statements which need to be read in which have been prepared either by the Guardian or the Observer. They are witness statements from Dame Elizabeth Forgan, Mr Andrew Miller, Mr Darren Singer, who was mentioned by Mr Jay but is in fact a Guardian witness, Mr Phil Boardman, Ms Gillian Phillips, Mr James Robinson and Mr John Mulholland.

  • Thank you very much indeed. I have read all those statements.

  • Thank you. First of all, I'm going to call Mr Chris Elliott.