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

  • MR MAX MOSLEY (recalled).

  • Mr Mosley, you've previously been sworn in in the Inquiry, some considerable time ago. Rather a lot of water has passed under the bridge. You took up my invitation to consider the criteria for a regulatory solution. I'm very grateful to you for doing so.

  • Thanks for the opportunity.

  • Thank you, Mr Mosley. We're looking now at your proposal for a new system of press regulation, which you submitted on 8 June of this year.

  • Are you content to attest to the truth of this statement?

  • You identify, first of all, four major problems. In other words, could you explain to us about those?

  • Well, the first one I think is absolutely fundamental. It's that at present if you wish to bring proceedings for defamation or breach of privacy, it's extremely expensive, so expensive that probably 1 per cent or thereabouts of the population can afford it, and I think that's completely wrong. It means that the majority of people are deprived of any remedy in those areas.

  • I'm not even sure it would reach 1 per cent.

  • Indeed. I think that's probably right. Because for an injunction, something like £10,000 minimum. For trial, you have to be prepared to put a million pounds at risk, and I think yes, a very small percentage of people who can do that.

  • It's one of the problems about justice generally, but in this area it's particularly expensive.

  • Thank you. Your second, third and fourth major problems may well be self-explanatory. The second one depends, I suppose, on the view the Inquiry forms of the evidence it's received as to the culture, practices and ethics of the press. Then you make criticisms about the PCC, which, again, are in issue before the Inquiry. There's evidence about that. Then you refer to the Internet.

    Your basic proposal involves the creation of a new body, the Press Tribunal, which you're going to tell us about in a moment, but also renaming the PCC, or rather creating perhaps a new regulatory body, which you would want to call the Press Commission. So it's not, as it were, son of PCC, but a fresh body; is that right?

  • That's right. I think the -- I think it very important that the press play a major role in making the rules, and indeed the current Editors' Code Committee -- it's not perfect but it's perfectly usable. It's just that it needs enforcing. I believe that there's a strong argument for, on the one side, having the body that makes the rules, and then, entirely separately, a body that enforces them, which body would never come into contact with most of the press because they'd observe the rules. It's only if they broke the rules they'd come into contact with the enforcement body.

    I think keeping those separate then overcomes any suggestion of state control of the press, because the only thing you'd need a statute for would be the body to enforce the rules. The body that makes the rules could -- it needs, I think, more outside representation than it has at the moment, particularly as it would, in fact, be the successor to the Editors' Code Committee, which is, of course, entirely editors. I think we need the public to be involved in making the rules, but then that can be a non-statutory body, provided there's a statutory body to stop breaches of the rules.

  • Do you have a view upon the extent to which serving editors should remain responsible for creating the rules?

  • I don't think they should create the rules but I completely see that they should play a part in the discussions that lead to the rules. I don't think they should be excluded completely.

    If I may, I have a great deal of sympathy, in a way, for the press when they say, "We don't want outside interference", because I spent 18 years running a body that was responsible for all of international motorsport, not just Formula 1, and what one dreaded was well-meaning people from the outside coming and interfering in something that they didn't fully understand.

    If I could give you one quick example: when Ayrton Senna was killed in 1994, the entire resources of the Italian judicial system focused on the question of why did the car crash. Now, on the roads, that's exactly what you want to know. You want to avoid accidents, so why the car crashed is relevant. But in racing, they're always going to be crash. They're operating at the limit of human ability. So the interesting question was not why did he crash, but why did he get killed and what can we do to make sure that when they crash -- because it's inevitable -- they won't get killed? And there was us focusing on the question that mattered, and ten years of proceedings through the Italian judicial system focusing on the question that didn't matter.

    That is an illustration of something which I think everyone understands, that if you've been in an area for 30-odd years and you have expertise, you really do know what matters and what doesn't matter, but the quid pro quo of being allowed to get on with it is you must succeed in what you're doing. In other words, you have to stop killing people. In our case, you mustn't kill the spectators, you mustn't kill the drivers, or you must do every reasonable precaution to avoid it.

    I think it's the same with the press. I think they should be allowed to get on with making the rules, but with outside help.

  • The parallel may not be perfect, Mr Mosley, because it may be that in your motor racing example, both systems wanted to achieve the same ultimate goal -- namely safer motor racing, or with less risk -- whereas it may be that the public and the press have slightly different objectives in connection with the publication of material.

  • Sir, up to a point, but the thing is that I think the objective of the press is to inform the public about things which they need to know, which are of significance, plus entertain the public, and those are perfectly legitimate aspirations, and equally the public want that.

    I think they only come into conflict, the public and the press, when the press wants to do something that impinges on the rights of the members of the public.

  • But they do impinge then, and there isn't that degree of disconnect in your motor racing example.

  • This is true, sir, but I think that's why one needs then a sort of long stop, a safety net, whatever one likes to call it, of a regulatory -- a statutory body that can actually stop the press going too far.

  • Mr Mosley, in terms of the tribunal that you wish to see set up, you recognise that it will need a statutory underpinning for all sorts of reasons, not least Article 6 of the Convention, because people are going to be forced to use it; is that correct?

  • Can I try to understand one or two characteristics of it, page 00476. This is a tribunal which will also deal with issues of accuracy, where there may or may not be a cause of action at law; is that right?

  • Yes. I think there are a lot of complaints, particularly from groups of people, that they or their activities are misrepresented by the press, and there should be some mechanism for questioning the press when they do that, if they do it.

  • So the remedy if there weren't a cause of action would be correcting the inaccuracy but would not be to award damages, but there may be the possibility of a fine because you refer to fines --

  • Indeed. In that particular case, I would envisage that the journalist and the representative of the group would come in front of an adjudicator and it would almost certainly get settled there and then, because a decent journalist will recognise if he's got it wrong.

  • Do you visualise, as part of your PC system, the Press Commission, that there would be an anterior requirement for complaints first to be dealt with within the newspaper organisation before going to the tribunal?

  • That's ideal, and of course, sometimes in an emergency, if the story's about to be published and you want to stop it, that might not be possible, but generally the first port of call would be the newspaper.

  • In other aspects of your system, there would be a prior notification requirement but it wouldn't be an absolute requirement, in my understanding of the third bullet point on this page. One would have to demonstrate a strong public interest reason for not notifying; is that right?

  • That's right. I think there's been the difficulty which was alluded to when I first gave evidence, about there is a public interest in not notifying but there tends to be a confusion between the public interest in the subject matter and the public interest in the question of notification itself, and I'm concentrating there entirely on notification itself. But there are -- there could be circumstances where it would not be in the public interest to give notice, but they're very rare, and when that arose, or when a newspaper thought it arose, under what I'm suggesting, the newspaper would approach the tribunal ex parte and say, "We're thinking of publishing this story. We think it's not in the public interest to give notice; do you agree?" And I think that would be a safeguard for the newspaper on the one side but also for the member of the public who is the subject of the story on the other side, and would avoid the situation where the entire decision is taken by the editor, and of course somebody's life can be ruined instantly.

  • Wouldn't it be better, though, for the advice to be obtained by and received from the PC rather than the tribunal, since there might be a perception of conflict of interest if the tribunal were then subsequently to adjudicate on the reasonableness of the advice it gave?

  • I think if the tribunal gave the advice that it was in the public interest to withhold, then the newspaper would be in the clear, because it can't do more than that. I think if it approached the PC about that, the Press Commission, then there could be a conflict of interest because they, after all, are the people making the rules and you cross that border between rule-making and rule enforcement.

  • They couldn't be entirely in the clear, because the person affected must be able to challenge the invasion of privacy in some way, and I think Mr Jay's point is that if you've gone to the tribunal and got an order, then it's quite difficult to see how the person affected could challenge an order which had already been made.

  • I think they wouldn't necessarily be challenging the order; they would be challenging the breach of privacy. So I would have throughout the breach of privacy is what they're going to complain about.

  • And then they could say, "Well, the tribunal made a mistake. It should never have said this could be published without notice. I think an adjudicator or even a judge would have given me an injunction." But that would not in any way prejudice a claim for breach of privacy arising out of the story that was published.

  • Do I gather that you're saying that this would be definitive; in other words, the publisher couldn't go ahead then and publish, even if he was damned?

  • I would say no, he has the right to publish, but very much at his own risk, because if then the plaintiff comes along and says, "But you were told by the tribunal not to publish and you did", I think that would be a case where the tribunal would impose, if the case be proven, a substantial fine.

  • Thank you. You're proposing a network of adjudicators who would be provided in the same way as perhaps immigration adjudicators or employment judges in the statutory jurisdiction which apply in those cases. Can I ask you, please, how the Internet would be brought within the scope of this tribunal?

  • I think that's a very, very important part, because there are a lot of cases now where things happen at local level on the Internet, for which there's, for all practical purposes, no remedy.

    For example, if a group of school children are bullying another schoolchild on Facebook, or if on Facebook or Twitter they are abusing one of the teachers, nobody can do anything. Unless the parents of the child happen to be extremely rich or the teacher happens to have a large private fortune, there's nothing they can do. It's very local and it just needs dealing with. With a system of adjudicators, which can operate right down to local level, that could be dealt with.

    That's an immediate problem that could be dealt with immediately. More broadly on the Internet, when somebody's in America and they're blogging offensively about somebody in England, that is something that must wait for the evolution of, I would say, international conventions, which are bound to come, but that doesn't stop us putting in place a mechanism to deal with what is actually the main problem at the moment from a pure fairness and justice point of view, which is these local abuses, where there have, I believe, been suicides.

  • Thank you. In terms of the procedures, you're contemplating an informal system, that lawyers will rarely be there. It will be free of charge to both parties, but the adjudicator would have power to -- you call it wasted costs. That presumably is designed to cover frivolous or vexatious cases; is that right?

  • In terms of the powers of the tribunal, most of what you say is self-explanatory, but there may be two significant issues. The first is: how would cases be sent to the High Court, or rather on what basis? Would it be the tribunal taking the view that it's simply too big a case, too important a case, to be dealt with at tribunal level?

  • Exactly. I think that if it was simply too big to be dealt with in this way, and too difficult, then it might have to go to the High Court, but I believe those cases would be rare. I think that -- I probably shouldn't say this in this forum, but I think there is a tendency, particularly in defamation, to overcomplicate things, to make things very sophisticated, very intellectual, very complicated, where actually the essential issues are relatively simple. I believe if you have the two people, the journalist and the subject, sitting there, in the overwhelming majority of cases it will get sorted out.

  • Did you see or have you read the evidence of Sir Charles Gray?

  • Because that's the impact of the Early Resolution scheme to which he referred.

  • I think there's a great deal to be said -- I think if you get people together early on and they meet as human beings with somebody there mediating -- the adjudicator in this case -- there is a great tendency to reach agreement.

    I can think of a little case I had with one newspaper where the journalist wrote something -- he shouldn't have written it. It took weeks. It cost the newspaper a five-figure sum, and it is a journalist I know, a sports journalist. It could have been sorted out in ten minutes. I could have explained to him why it was wrong, he would have seen the point immediately and that would have been that. I think there are a lot of cases like that, but once it gets, dare I say it, into the hands of the lawyers, it tends to get very complicated.

  • Thank you. The other possibly significant point is that there's power in the tribunal to prevent publication of a story.

  • In other words, to issue an injunction. A very few other people have argued for that sort of power, on the basis that injunctive relief, almost as a matter of principle, really, should only be ordered by the High Court. Why do you feel that a tribunal of this sort should have that range of power?

  • Because if it doesn't, we would be back to a situation where the only people with a proper remedy for breach of privacy will be the rich, because only the rich could afford to go to the High Court, and I think we absolutely have to have a procedure where if somebody who has no money knows that a story's coming out that is a clear breach of privacy, that they should be able to go somewhere and get someone to tell the newspaper not to print it. The obvious place is our tribunal, and if you weigh the sort of principle that these injunctions should only be issued by the High Court, which I can understand, against the fact that if you insist on that principle, nobody's going to be able to afford to do it, or hardly anybody, it seems to me justice requires that the tribunal have that power.

  • There may be an issue as to whether it's a contempt of -- well, it would be a contempt of the tribunal to disobey an order of the tribunal, but whether statute could confer express powers on the tribunal to treat it akin to a contempt of court. Maybe we'd have to think through that.

  • I would have thought that with something like the tribunal, all it could do is impose a fine, but as we're talking about fines which are potentially quite big -- because I think the fines should be expressed in a percentage of group turnover rather than actual figures -- then I think the disincentive to breach the order would be significant.

  • Yes, so the power to award a substantial fine if you disobeyed the order of the tribunal, that would cater for -- or might cater for my concern, since only a brazen newspaper would wish to run the risk of such a significant fine.

  • Would there be power in your tribunal, if it detected prima facie evidence of generic or systemic breach of the rules, to refer the matter to the PC for consideration?

  • I don't think so, because I think once the PC's made the rules, then the tribunal would enforce them, and one of the rules obviously would be that where you had harassment or systemic breaches, the tribunal would take action, and if you take -- let's take an extreme case. The pursuit of the McCanns in the Daily Express. That would be -- at a certain point, the tribunal, had it existed then, would have said to the Express: "This is not acceptable", and imposed a significant fine. If it had continued, the fine would have been very significant indeed, and undoubtedly Mr Desmond would have given orders to stop.

  • So the function of the PC then is only as a rule-making body. It's not there generally to set standards, to enforce standards outside the sort of activity which the tribunal would be undertaking? Have I correctly understood your position?

  • The position -- my suggestion is that it would make the rules and it would set the standards, but the enforcement of the standards and the rules would be a matter for the tribunal. So clearly there would be some -- there's always an element of judgment in these things: have the rules been broken? Have the standards been observed? But those judgments, in my submission, would be taken by the tribunal.

  • I think, if I may say, the essence of it is the separation of powers, and I think if you're going to have a proper system of functions, you have to separate the legislature from the judiciary.

  • Might it not be appropriate to have a lesser form of sanction? I think the only sanction is fine, but in less serious breaches of the rules, why not have a power to admonish or publish an adverse adjudication, which, although if that were the sole sanction would not be sufficient -- I think we can agree about that -- might be appropriate for first-time offenders, if I can put it in that way, and the less serious cases. What do you think about that?

  • I think that's entirely reasonable, and obviously there would be a power under this system to order a correction and order something to be printed that needed to be printed, and there could be no fine, a nominal fine or, in appropriate cases, a large fine. It's just important, in my opinion, that the power exists, because unless the tribunal has these powers, it won't be able to enforce the rules.

  • What interaction, if any, will there be between the PC and the tribunal? Are you envisaging a strict separation of powers between the two?

  • Strictly speaking, yes, but inevitably there would be, if only informally, discussions, because the tribunal might well say to the Press Commission at some point: "The way you framed that rule would be difficult to enforce, this is difficult, that's a problem," rather like on a national level there is a certain sort of intercourse between the judiciary and the legislature and the government here, and I think that would be entirely reasonable. But generally speaking, the two would be separate.

  • In terms of financing the tribunal, you're proposing a small levy on publications with circulations above a certain level. Is this just financing the tribunal? What about the PC? How is that going to be financed?

  • I don't think the PC would really require, other than very modestly, for a secretariat, any substantial sum, so I didn't give that really any thought at all, but yes, the tribunal would be funded by -- partly by a levy, partly by the fines, but of course, because the -- almost all the adjudicators would be part-time, if the number of offences decreased, the costs would decrease. If they increased, the fines would cover some of it. So I think it would be partly self-financing. The actual Press Commission I think would require very, very modest financing --

  • But it still has to perform the complaints-handling function, doesn't it?

  • I wouldn't have thought so, sir, no.

  • Well, the complaints handling would all be done by the tribunal. So, for example, if there's a mass of photographers outside the house, you would call up the tribunal and say, "Can you please get this stopped?" It would take care of all that that was outside.

  • Sorry, outside rule-making, I should say.

  • It sounds as if the tribunal might be quite an expensive body to maintain year in and year out, because you would need -- I wouldn't say an army of adjudicators, but you'd need a fair number of those. Indeed, the range of functions we're referring to here is significant, and the volume of business, in the early stages certainly, may be quite high. Have you costed it, Mr Mosley?

  • Well, crudely, very crudely. I have said that I believe the maximum levy would be one penny per copy sold or distributed. That, on the basis of the published figures, would produce about £47 million a year, and I think that's greatly in excess of what this would cost.

    If you go for a tenth of a penny per copy, that's 4.7 million, between 4 and 5 million. That ought to cover it, because if there is a lot of activity, then there are going to be some fines, and if you have serious cases with big newspapers, you might get serious fines, and it's difficult to predict what the level of activity would be because what one hopes is that you would have all these part-time adjudicators, which would cost a certain amount to train and to instruct, but they would actually have a day job. They would only be doing this occasionally, and if there was not too much activity, then the cost would come right down.

  • Two issues, really, about the adjudicators. If you look at analogous tribunals, whether it be employment tribunals or immigration tribunals, they're appointed as if they were -- indeed, they are -- judges. So the state appoints them, the state pays for them, the state pays their pensions and everything else, and insofar as there are disciplinary issues, which of course happen very rarely, the state administers that.

    Your regime sounds more like a private regime where the newspapers are solely responsible for funding, but are we looking at adjudicators who will only be working for the newspapers or are we looking at adjudicators who might, for part of their time, be doing immigration cases but occasionally be doing press cases? How do you see it working?

  • I saw that slightly differently. I thought that the adjudicators would normally be, for example, a solicitor, and he would have his normal practice, and he would be a little bit like senior members of the bar who are part-time judges, or -- there are deputy High Court judges and there are Crown Court judges.

  • They do it on a part-time basis. So they would be paid when they were active but only when they were active.

  • Yes, but paid by the state. A recorder or deputy High Court judge is paid by the state.

  • Paid by the tribunal. The tribunal's funds would come from the levy. So they're indirectly paid by the newspapers, but of course the levy and the fact that it went into an independent body which then paid these people would make it quite independent of the newspapers.

  • So the state could still, as it were, appoint and directly pay for these adjudicators, but the state will then receive the levy from the newspapers, which will, in effect, cover the costs? Is that the system?

  • That would work perfectly well.

  • The other issue is the expertise of the adjudicators. Are we looking for people with no media expertise? Are we looking for people who will sit on panels, in which you would include someone with media expertise? How do you see that panning out?

  • I was thinking of -- there are different approaches to this, but I was thinking of senior solicitors who had been on a special course about the sort of issues they're going to have to deal with, and would have that level of expertise, but they wouldn't be like a full-time -- some of our leading solicitors who do nothing else. They would have a good knowledge -- well, they would have a knowledge of the law anyway, and they would have a good knowledge of the sort of issues that would come up, and then they would be kept up to date with regular retraining and of course probably a monthly newsletter, just to keep them on top of the thing.

  • There may be problems there. I mean, one sort of problem -- if your adjudicators are appointed from those who are media lawyers, someone might say, "Well, he or she acts for claimants, will come to the job with a certain perspective; he or she who acts for defendants..."

    So there's that sort of problem, but if you go the other way and say, "We're going to choose solicitors or barrister of a certain level of seniority who are not media lawyers", then they'll come to this perhaps from a position of a level of ignorance, frankly. You can give them some training, but they won't be well familiar with the quite complicated issues they'll be asked to adjudicate on. Do you see that difficulty?

  • I completely see that difficulty. The thing is that the system -- and one has to say that right at the beginning -- would not be perfect. Even what we have at the moment that's beyond the reach of all but a tiny minority of the population is not perfect.

    So the first thing to say is it has to be free of charge. You then have to reduce the level of expenditure to the point where the state, society, whatever one likes to call it, can afford it. It's then a question of finding the most efficient way of deploying the very limited resources which are available, but it seems to me one must not allow oneself to be diverted from the starting point, which is that it must be free, and it must be free both to the claimant and to the press.

    You would certainly get -- some solicitors and barrister who were not experts would probably make mistakes, but that is inevitable if you reduce the costs, and I would argue that there are even mistakes when you have the enormous expensive procedures. But the mistakes would be very few and far between.

    Fundamentally, a lot of these issues are not that complicated. It would be quite rare that it was complicated. I mean, the really difficult cases, you could send it to the High Court, to an expert judge.

  • I'm not sure you don't underestimate the difficulties here, particularly if there aren't going to be lawyers representing the parties. You'll have adjudicators who may be excellent lawyers generally, who may know very little or nothing about media law, trained up to a certain point, which will not be, frankly, a very high point at the start, and then they're thrust in to potentially difficult cases without a lawyer acting for the parties to help them out. That could lead to a fairly rough level of justice, some might argue.

  • It would sometimes -- sometimes inevitably lead to a rough level of justice, but of course, you would have the safety net of the High Court and things like that. But in the end, the fundamental question is: should it be free or not? If it has to be free, then I'm not saying for one moment that the system I put forward is the ultimate or the best. All I'm saying is it absolutely has to be free, if you're going to have justice and the rule of law applying to the entire population, and then do the best you can.

    I set out my suggestion for six requirements. The first is that it's free, the second is that it should not involve the courts or lawyers, and then also that there should be the powers similar to the court, that it should be quick, efficient and so on. I think those requirements are absolutely right, and I would say that -- what I was tempted to do was to say: well, in my submission, we need to satisfy these six conditions. Then I thought: if I do that, somebody will say, "Well, that's fine. Your condition is it has to be free, it has to replace the courts and so on; how are you going to do that?"

    So I thought: I'll try and set out, to the best of my ability, a scheme -- a regulatory scheme which works but without claiming that it's the ultimate. I'm sure it can be improved. All I do claim is that whatever we do should be available to the entire population.

  • What's important about what you've done, Mr Mosley, is not the detail; it's the fundamental principles which you believe ought to underpin whatever it is we're doing.

  • Exactly that, sir, and it would be very presumptuous of me to say I can sit down and produce the blueprint. The only reason I've done that is so that I couldn't be accused of putting forward something that couldn't be done.

  • No, it's not at all presumptuous. You're doing exactly what I invited you and a large number of other people to do, to help me try to find a way through that works for everybody.

  • Thank you, Mr Mosley. Those were all the questions I had.

  • Thank you very much.

  • Mr Mosley, thank you very much indeed.

  • May we move on directly to the next witness, who is Dr Tambini, please.