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

  • That's fine, because we have to deal with the issues that Mr Sherborne wants to raise. We can deal with that now.

    Right. I'm sure you've been told, Mr Caplan, that in your absence, Mr Garnham raised a concern about the way in which the rebuttal to Mr Grant's evidence was printed by one of the titles for whom you appear. The phrase that he pointed to was "mendacious smears driven by a hatred of the media". What I'm going to do, before I ask Mr Sherborne, who wants to raise some other points, is to ask Mr Garnham just to articulate so that you can hear him, his concerns about that phrase.

  • Sir, as I sought to explain this morning, our concerns are that when a witness comes to give evidence to your Inquiry, whoever it is, and in particular when they give opinion evidence at the invitation of counsel to the Inquiry, they should be able to do so without fear that by the following morning they will be confused by a national newspaper of lying. It seems to us, sir, that the judgment as to whether or not a witness is telling the truth is yours and yours alone, and there is a real danger in the sort of level of press commentary that we've seen this morning having a deleterious effect on the work of your Inquiry because, to put it frankly, witnesses will be very cautious, we fear, about coming and giving opinion evidence, or that matter, factual evidence, if the likelihood is that they will face that sort of onslaught in the press the following morning.

  • Thank you. Mr Sherborne, you want to elaborate that and raise some other issues, so do that now.

  • Sir, I do indeed. There are two matters I wanted to raise. Can I deal with the first, which relates to the evidence given by Mr and Mrs Dowler. You will be aware that following this evidence, Mr Mulcaire has made a public statement saying that it was not him who deleted Milly's voicemails. Obviously if -- and I say "if" -- he didn't, then the finger points firmly at the newspaper's journalists themselves. Obviously, sir, that is a matter that you will want to deal with at least in part 2, if not perhaps in general terms in part.

    Can I then turn to my second point, and that is to refer to the coverage in Associated Newspapers of yesterday's evidence given by Mr Grant, which, as I forewarned in my speech of last week, has been to attack a witness giving evidence not in this room, but outside, through the pages of their own newspaper and in the editorial this morning.

    Sir, you will recall that when Mr Caplan spoke yesterday morning before the evidence started, he said that if there were statements that had been made about the behaviour of Associated journalists, they would seek to file evidence, statements to balance this, and correct anything they perceived as being wrong, and no one demurred.

    Of course, Associated Newspapers has had Mr Grant's statement for a number of days. Unfortunately -- and it is a matter of regret -- none of the public saw it until yesterday evening because it was not up on the system. But certainly Associated Newspapers had it for several, so they were well aware that Mr Grant believed that there was a very strong inference -- and I use the word "inference", not "speculation" -- that the source for the freelancer who wrote that sorry in the Mail on Sunday in 2007 must have listened to his voicemails because how else would he have got this information.

    As I said, you heard Mr Caplan say yesterday morning that they might put in statements in response. You might have been forgiven for thinking, as I did, that this meant statements of evidence to be put before the Inquiry as opposed to a press statement, but be that as it may, what was filed, so to speak, in the pages of the Daily Mail website and the Daily Mail itself was not a denial but a personal attack on Mr Grant as a witness, in which they referred to his inference not as mistaken, not even wrong, but as "a mendacious smear from a man driven by hatred of the media".

    Whilst Associated Newspapers' statement was clearly an attempt, however feeble, to strike out as hard as possible, it is, of course, no substitute for evidence. Mr Grant went on oath yesterday to explain what happened to him and what he believes to be the case --

  • Mr Sherborne, let me cut across you a little bit. As regards evidence, you don't need to be too concerned about that because although I haven't read the newspapers today. I was already of the mind that it may be appropriate for me to require evidence on this issue because of the way in which matters emerged. So you don't need to develop an argument about that at this stage, although I'll hear what Mr Caplan has to say.

    That's one side of it. The other side of it: of course Associated are entitled to deny that which Mr Grant says. That must be entirely fair and appropriate.

  • Of course, but what they didn't do was simply deny it. What they suggested with as that he was deliberately lying. "Mendacious" appears to be a favourite word on the Daily Mail website, if you search it.

    Sir, if you need a picture of how the tabloid press works, this top of the table tabloid, one only needs to look --

  • No, Mr Sherborne, let's not make a speech about it. I understand the concern that you're raising and I'm equally conscious of the balance between, on the one hand, legitimate reporting of the proceedings and comment upon them, and going beyond the line that I identified at the very beginning of this hearing, where it might have an impact on the witnesses.

  • Sir, this was not comment. This was, as us libel lawyers refer to it, an allegation of fact. This was a press statement put out by the Daily Mail stating in terms that these were "mendacious smears". It was not comment. And as if to reinforce this point, we have this morning in the editorial from the Daily Mail, a repeat of these allegations and they are headed with the words:

    "Mr Grant: the facts."

    This is not a comment, sir, with the greatest respect.

  • You'd better let me see it.

  • The press statement went out yesterday afternoon and was repeated in the newspaper, and that is the comment in the editorial. As I say, it is headlined with the words "the facts".

  • Sir, it's not just that they stepped beyond the bounds of comment but it's the intimidating nature of what has been published.

  • I understand that, but the editorial to which you've referred doesn't repeat the word "mendacious". It asserts that he's a man consumed by hatred for the media, but then it asserts that they don't hack phones --

  • "Do not", using the present tense, rather than "did not".

  • "Do not", yes, and they did not receive information about the recent birth of the child from a hospital source.

  • This is a repetition of what was in their press statement yesterday, in which the words "mendacious smears" were in, as well as "driven by hatred of the media".

  • As I say, and I repeat, this is not a comment on Mr Grant's evidence. These are allegations of fact which go beyond merely saying, as Mr Caplan said that his clients might, that the inference that was drawn by Mr Grant was wrong or mistaken. It was said to be a lie, and I don't need to point out that in the context of somebody giving evidence to this Inquiry, that is an allegation of the most serious kind. It is the intimidatory nature of it which, in my submission, is something, sir, that this Inquiry needs to take very seriously.

    As I said in my submissions last week, this was foreshadowed by the Daily Mail, and Ms Platell in particular, in her article on 20 September when she described the Leveson Inquiry and the line-up of witnesses in the way that I read out last week, including reference to "S&M spanker Max Mosley, prostitute procurer Hugh Grant, gold-digger Sheryl Gascoigne" and so on, and followed that with:

    "Gerry and Kate McCann are also expected to appear ... What sleazy, degrading company for those who truly suffered."

    If one needs a reminder, given that it is said that Mr Grant -- and everyone heard his evidence yesterday -- hates all the media, which is said to be his motivation -- if one needs a gentle steer as to who hates who here, Mr Jay did not read out Ms Platell's article that was written about Mr Grant after the birth of his daughter, but can I simply refer to a very few passages to give you a flavour of what was said. Ms Platell said this:

    "Once a loved actor, the truth is that Grant has become a lonely, bitter man, consumed with hatred of the media ..."

    Sounds something like a party line.

    "... consumed with hatred of the media who helped make him a star. One can only imagine how scarred his abandoned daughter is going to feel. It remains to be seen if the self-obsessed Mr Grant will be able to give any long-term commitment. Pity his poor daughter. In truth, this great moral crusader is just another hypocritical celebrity who enjoys the money and fame that media exposure gives him but refuses to accept the accompanying responsibilities. This week's news that he secretly fathered a child certainly puts into telling perspective his efforts to silence the press by demanding privacy laws."

    Mr Caplan made his little speech yesterday morning. I made a rather bigger one last Wednesday. This is not, as you say, a time for speeches. This is the time for evidence. Mr Grant has given his. If Associated Newspapers wants to put evidence in on oath, then they should do so. It's important to say, of course, as was said very publicly yesterday by Ms Khan herself, that she, the first time she ever knew about this story was when it appeared in the Daily Mail, contrary to what was said yesterday by Associated Newspapers that somehow it was a source that had spoken to her that had provided it.

    If and when Associated Newspapers do file their evidence, perhaps they can deal with why there is a specific reference to what this supposed LA executive's voice sounded like, and how anyone knew that this woman had a "plummy voice". Maybe that's just me speculating.

    But what is also important to remember is that Associated Newspapers were forced to apologise and pay damages to Mr Grant, damages which were given to a cancer charity, following the publication of the article, an article which they did not defend at all.

    And if I can leave the last word --

  • The article in 2007.

  • And if I can leave the last word to Mr Grant, who after that victory made a public statement, he said this:

    "I took this action because I was tired of the Daily Mail and Mail on Sunday newspapers publishing almost entirely fictional articles about my private life for their own financial gain and also hoping [he said] that this statement in court might remind people that the so-called close friends or close sources [once again, this is what Associated referred to yesterday] on which these stories claim to be based almost never exist."

    I didn't hear Associated Newspapers complain that this criticism of the so-called sources was a mendacious smear at the time of the statement in open court in 2007, but maybe now they might want to complain to the PCC, sir.

  • May I begin by saying that I agree with Mr Sherborne that this is not the time for speeches, although he seems to have made another one. Can I be constructive, please, and just say one or two things about yesterday and what happened?

    First of all, sir, you will have seen, I'm sure, the coverage that followed Mr Grant's evidence yesterday afternoon, and by that I mean the coverage last night and the coverage in the national newspapers -- in the afternoon, last night and in the national newspapers this morning, and it in effect was to this order: it was that the Mail on Sunday has been implicated in the phone hacking scandal.

    We should not underestimate that the coverage from these proceedings goes worldwide. There was a tremendous amount of enquiries to Associated Newspapers about their position in relation to being implicated, and there was pressure on them from the Press Association and others to comment.

    Mr Grant is entitled to comment as he wishes, but we sought to make the point that that comment was based on the flimsiest of material and his allegations that the journalists of Associated Newspapers had been involved in phone hacking was utterly refuted.

    Sir, that allegation is extremely serious. It is an allegation of criminal conduct.

  • As is the allegation, it would appear, that has been made against Mr Grant.

  • Well, I -- do you mean in relation to the --

  • That was a response to the fact that he was commenting freely when there was not a substratum of evidence to support that comment.

    The issue, I think, here is about the limits of the rights to reply and comment. I think that's where we are.

  • Yes, absolutely, and as I made clear, I have absolutely no difficulty at all with the press reporting and dealing with allegations that are made against them. That's entirely fair.

  • Can I then just come -- it is an issue I foreshadowed, I think, yesterday morning -- to the position in which we were yesterday afternoon. A very serious criminal allegation had been made about Associated Newspapers and its staff. Under the Inquiry procedure, there was no right for me to put questions directly to Mr Grant on behalf of Associated Newspapers to cross-examine him, I obviously put those questions through Mr Jay, Inquiry counsel, and there was no right for me to make any contemporaneous reply at the conclusion of his evidence to rebut or to deny the allegation that had been made.

    Sir, could I suggest two possible solutions? The first is this, that when Mr Jay puts questions to a witness, it would be perhaps clear to everybody if, in putting a denial or a refutation to a witness about an allegation that he makes, if he says that this is denied by a particular core participant and he's putting these questions on their behalf.

  • Yes, I think that's a good idea. I agree with that.

  • Because yesterday, I'm not sure people were clear, and I mean members of the press as well, that Associated Newspapers was expressly denying in these proceedings the allegation that had been made.

    Secondly, sir, the other possibility, if I may say so, and you referred yesterday to a right of reply, or I might have been, you suggested, referring to a possible right of reply, is that if a serious allegation is made by a witness, it might be possible for a core participant at the end of that evidence simply to say to the Inquiry that that allegation is refuted and a very brief word or two responding to it.

    Sir, that again would be a mechanism for dealing with serious allegations as they are made in these televised proceedings.

  • All right. But actually it goes on a bit from that, doesn't it, because, Mr Caplan, if all Associated had said was, "This is what Grant said, this was the basis upon which he said it, this is our case, this is our view, A, B, C, D, facts, therefore we reject it", then that's absolutely, seems to me, subject to hearing anybody else, that's fine, because that's reporting and that's reporting on the day's proceedings and dealing with what I understand is the legitimate interests and the reputation interests of your clients. But the real issue is the extent to which it's appropriate to go from the defensive onto the offensive in that way.

    I hope that you will feel it appropriate, and if not, I might ask you for the names so that I feel it appropriate, to serve some evidence, not because, not because at the end of the day I'm going to have to make a decision about whether your clients did unlawfully obtain information from Mr Grant, because that, if it's ever going to happen, will be later, and I'm not going to do it because, if I'm going to do it for one, then I have to do it for all, and the situation becomes utterly untenable, but I do recognise that if it becomes graphic, as it did yesterday, then the reputation and interests of the relevant core participant do require it to be able, equally graphically, to be able to answer it.

  • Yes. So could I grapple with that? As you know, any allegation of phone tapping is absolutely refuted on behalf of my clients and the journalists. I cannot be clearer than that. And if this kind of serious allegation is being made in these proceedings, I do ask for an effective mechanism for a right of reply, if possible, within this Inquiry.

  • And I'm happy to certainly suggest -- I have suggested two, but I do respectfully suggest it's something that's --

  • In relation to the first, I have no -- I'll hear Mr Jay, but I have no difficulty about that. In relation to the second, I'm not sure about. But what do you say about my possible requirement that the relevant journalists make statements and come give evidence?

  • Yes, I'm very happy to do that. This is in relation to the allegations Mr Grant made?

  • I'm very happy to do that. I think we already said, I'm being reminded, that that's something that we would do.

  • The trouble is, by the time that happens, it may well be January --

  • -- and the allegations may have gone around the world (overspeaking) phone hacking.

  • No, no, it may not, because if you get them in -- you know, I'm a master of the procedure in this Inquiry and I can move people around, subject to their convenience, rather like chess pieces, and I am perfectly happy to do that, recognising the point that is made.

    But I do want you to make a comment, please, or to deal with the underlying allegation or concern expressed by Mr Garnham and Mr Sherborne that the comment went rather further than was appropriate, given the circumstances.

  • Can I say here I hear everything that you've said.

  • Right. All right. Mr Sherborne, you're very keen to add something?

  • I am, sir, because it gives no reassurance to those of my clients who are coming to give evidence to hear Mr Caplan's plea in mitigation which nowhere deals with the fact that those words "mendacious smears" were used. "Mendacious" means lies, and for Mr Caplan's benefit and for the benefit of the Daily Mail and the Mail on Sunday, when there is a real distinction between someone who makes a statement which he or she knows to be untrue, and, to quote Mr Caplan's words, someone who says something that doesn't have a "sufficient substratum of truth" to make it. I shouldn't need to point that out. And I shouldn't need to point out, sir, that there is another critical distinction between a right of reply and a right of attack, and that is what has happened here, and if those who have been brave enough to come and give evidence to this Inquiry about what they suffered at the hands of the press hear that kind of plea in mitigation, then as Mr Garnham himself warned, we may well face people who are unwilling to be that brave any longer.

  • I understand the point entirely, and given the way in which Mr Caplan has just dealt with the proposition that I put to him in that regard, I expect there to be some conversation over the next hour as to how we're going to cope with it. I'm not taking it other than extremely seriously. I am very concerned to reflect and recognise the concern that has been expressed by those who have come and given evidence, and I think I've said it to every witness or almost every witness, and I will continue to do so.

    So I'm alert to the position. I think it would probably be sensible if some thought be given, and I'll ask the Inquiry team also to do so, as to how we're going to cope.

    There are two specific problems. There's first of all the issue in relation to Mr Grant, and secondly is the issue for the future.

    I have the point firmly in mind.

  • Sir, I'm very grateful.

  • Right. Mr Jay, is there anything that you want to say at this stage about this?

  • Sir, I would respectfully endorse Mr Garnham's concern, which was expressed with his usual moderation, that language such as "mendacious smears", should, if at all possible, be avoided.

  • It's not merely possible; it's, I would have thought, necessary.

  • I'm putting the point with excessive moderation. What I really mean is exactly what you've said.

  • Yes, well, there's time for moderation, Mr Jay, and indeed Mr Caplan has got the point, which is why I didn't seek to go further.

  • But, therefore, we need to know how we're going to cope with that and we're going to need to know how we're going to cope in the future for those witnesses who are to come.

  • I think it's possibly sensible that there can be a discussion other than in the full glare of televised reporting, but we shall return to the topic at 2 o'clock.

  • Yes. May I just deal with the two practical solutions which Mr Caplan came up with?

  • We took the view that if a line of questioning was put to us by a core participant, unless they agreed, we would not attribute that line expressly to the core participant, because after all, during the course of this Inquiry, we may be receiving lines of a confidential nature where the core participant might not want it to be known who the ultimate source is.

    However, if a core participant does not mind that we make it clear who the source is, then of course we will make it clear, and that may apply in relation to witnesses we're hearing in the very near future, but I will obtain confirmation of that.

  • Yes, but in relation to the questions that you asked Mr Grant, it was, I am sure, obvious to all that you were dealing with a particular article which could only -- the information for which could only have come from the Daily Mail.

  • Yes. Not merely is that right, but the lines of questioning were put to Mr Grant through his legal team in advance, in general terms, and it must have been entirely obvious --

  • It did not require any powers of inference or deduction. Indeed, that was clear when Mr Grant gave his evidence.

    As for an immediate right of reply, in my submission, I doubt whether that's going to work. What would be preferable is that evidence in rebuttal be obtained as soon as possible and we hear it as soon as possible. As you've indicated, the chess pieces can be moved around quite quickly to accommodate urgent evidence in the interests of justice, and we will do our best to achieve that. But if there's going to be a series of speeches at various moments of this Inquiry, the system, in my submission, is not going to work and the temperature is simply going to rise further.

  • Yes. I don't know how often this is going to arise. I think this might be one of a very, very limited number of examples. But what do you say to the proposition that, having put the questions that emanate from the relevant core participant, which he'll deal with, or he or she will deal with, as they feel appropriate --

  • -- where you have been told in terms that that allegation is denied, you can put the final follow-up question: for the avoidance of all doubt, you understand that that allegation is denied entirely.

  • Yes. I have absolutely no difficulty in doing that. To be absolutely clear, when a question is put of any witness, there is not a viewpoint in the question which is behind the question. It is merely testing a proposition.

  • And that is what happened yesterday. Insofar as I have opinions, I keep them private and I did not intend, and I hope it did not appear as such, to express any opinion yesterday.

  • Yes, I got concerned, as you will remember, during the course of the afternoon that Mr Grant might not have been understanding why some of the questions you were asking, you were asking, which is why I raised the concern again this morning.

  • It may be that he did, and there it is.

    All right. I've got the point. I want to know how we are going to solve the position in relation to the concern which Mr Garnham raised, and Mr Sherborne has developed, and which Mr Caplan has recognised, so that we retrieve the balance that I think is absolutely critical for the consideration of these witnesses' evidence.

  • And then also consider the way forward.

  • We will resume at 2 o'clock with that, I think, solution first, if Mr Coogan doesn't mind waiting a little bit longer. Thank you.

  • (The luncheon adjournment)

  • Right, where are we in relation to the issue that we left at 1 o'clock?

  • We don't, I'm afraid, have an agreed form of words. If you'd like there to be further discussions this week, we can --

  • I'm quite keen to address this --

  • Rather more speedily than that, because over the short adjournment I have had the opportunity of reviewing the transcript of yesterday afternoon and reading the statement put out by Associated Newspapers.

    The transcript makes it clear that Mr Grant's attitude was this: he tells the story of how he spoke with this English girl in Los Angeles who worked for a production company associated with Warner Brothers, whose voice he described as "plummy", which was the nature of the story that had been published in February 2007. And he said:

    "So I cannot for the life of me think of any conceivable source for this story in the Mail on Sunday except those voice messages on my mobile telephone."

    "Question: You haven't alleged that before, have you, in the public domain?

    "Answer: No, but when I was preparing this statement and going through all my old trials and tribulations with the press, I looked at that one again and thought that is weird, and then the penny dropped.

    "Question: I think the highest it can be put, frankly, it's a piece of speculation on your part, isn't it, in relation to this?

    "Answer: Yes, you could -- yes, speculation, okay, but I would love to know -- I mean, I think Mr Caplan, who represents Associated, was saying earlier today that he'd like to put in a supplementary statement and -- you know, referring to the things I say today. Well, I'd love to hear what the Daily Mail's or the Sunday Mail's explanation for that article is, what that source was, if it wasn't phone hacking."

    Now, if one goes to the statement -- and there was a later reference to the incident, but only when he was being pressed about the Daily Mail -- he referred to this answer and something McMullen had said.

    The statement from Associated, according, I must admit, to the BBC website:

    "The Mail on Sunday utterly refutes Hugh Grant's claim that they got any stories as a result of phone hacking. In fact, in the case of the story Mr Grant refers to, the information came from a freelance journalist who had been told by a source who was regularly speaking to Jemima Khan."

    Pause there. That's a perfectly legitimate observation to make in relation to the story. There then is added:

    "Mr Grant's allegations are mendacious smears driven by his hatred of the media."

    Well, it seems to me that there is considerable force in that which Mr Garnham submitted and Mr Sherborne embellished and you acknowledged and from which Mr Caplan did not demur, about the last sentence. I'd like to know what the present position is.

    Maybe I'll ask Mr Caplan.

  • I'm not quite sure what, if I may say so, is meant. I spoke to Mr Jay over the luncheon adjournment. I'd very much like to know what, sir, you are asking the present position to be --

  • In relation to the last sentence of the press release.

  • Yes. Well, if you would -- I simply cannot do this over a luncheon adjournment. If you are inviting me to go away and provide a document to you in relation to that, I'm happy to do it, but I'm not sure I can advance the matter, so to speak, at 2.10 pm.

  • But can I just say this? I just wonder whether you really wish me to do that. I have explained that there was a serious allegation made yesterday, that there was a response outside of the Inquiry because there was not, it seemed to us, a mechanism -- and still, with respect, there's not a clear mechanism -- for responding inside the Inquiry, and there was pressure for Associated to comment and the question is: to what extent was that comment or did it go too far?

    If you wish me to develop that and provide a letter to the Inquiry, I certainly can do so, but --

  • Yes, I'm more concerned -- first of all, I have absolutely no wish to generate satellite arguments outside what this Inquiry is seeking to address.

    Secondly, I am concerned that this comment, which may be driven from material outside the words that Mr Grant uses, I don't know, and doubtless I'll hear, but is not justifiable by reference to the transcript to which I have just referred.

    I understand the concern, and in the event of something like this, then it's always open to you, at the end of the witness, to say something to me expressing concern. That's fair enough. I'm not going to allow a speech to be made, but just to alert me to the point.

  • But I am extremely concerned about ensuring that the arguments relating to this Inquiry are conducted here, not elsewhere.

  • I quite understand that.

  • All right. Consideration ought to be given to that sentence, and I will wait to see.

    Mr Sherborne, I'm alert to the point.

  • I have the transcripts. That's why I've just read them again.

  • So you'll understand our concerns.

  • I understand it, and it's not irrelevant that it was raised also by Mr Garnham. I'm anxious not to reach any inappropriate conclusions, but I would be unhappy if it was felt that the best form of defence was always attack.

  • May we proceed with the final witness today, who is Mr Steve Coogan, please.