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

  • MR JOHN GERRARD STEVEN BATTLE (sworn).

  • Mr Battle, good afternoon.

  • Could you give the Inquiry your full name, please?

  • My full name is John Gerrard Steven Battle.

  • Are the contents of your witness statement true and correct to the best of your knowledge and belief?

  • I understand, though, that in relation to some of the exhibits, the procedures exhibit, you wanted to say something about the update that was mentioned briefly in the last witness's evidence. The document we have includes a compliance manual which dates from 2004, I think. Is that the document that's been the subject of review?

  • Correct. The original document, the ITN compliance manual, was published in July 2004. It has been reviewed and there is a new edition, November 2011. That is a document which is the updated edition of our compliance manual. I've written it, it's been worked on for about two years, and it is the standard now within ITN.

  • As Lord Justice Leveson invited the last witness, we can expect a copy of the latest version?

  • Yes. I'd certainly like to help the Inquiry, if I can.

  • Thank you very much.

    Could I just ask: have changes been incorporated as a consequence of the events of the last nine months?

  • It's fair to say that as a grown-up and professional organisation, we'd have to have on board the Inquiry and what's been discussed here and within the news. There have been some tightening up procedures, tilting, as you said this morning, sir, towards better regulation. I don't think there's been substantive changes as a result of this Inquiry but it also includes a lot of updates on other issues, such as Twittering in court or online posting, so it's an update. Every news organisation has to ensure that its procedures and manuals keep up to the changing times.

  • No doubt. But the one that I have, although Mr Barr is correct that it has an introduction that's dated July 2004 -- do I gather it's actually an updated version that has been altered over the years?

  • It's fair to say over the years we've had new policies but the second edition is the one in November 2011. So it's not updated by month. I'd like to think our standards are constant, but from time to time they'd need to be updated.

  • Yes, all right, thank you.

  • So you tell us in your witness statement that you are an employed barrister and you were called to the bar in 1985. Since 001, you've been a lawyer in the broadcast industry and have worked for over ten years as a head of compliance at ITN. Prior to that, you worked as a lawyer in the newspaper industry and the main newspapers you worked for were the Daily Mail, the Mail on Sunday, where you were between 1995 and 2001, as the group legal adviser, and Today newspaper, where you were a legal manager from 1990 to 1995; is that right?

  • That's correct. I have experience both in the newspaper industry and in the broadcast sector.

  • I'm not going to pass over the opportunity, therefore, to ask you to compare the two to some extent. Is there a discernible difference in the ethical culture in the newspapers you worked for and at ITN?

  • Well, you won't be surprised to learn that that was a question that I thought I'd be asked, because I do have quite unique experience in both broadcast and the television sector.

    The first thing I'd like to say is this: the difference between the broadcast sector and the news and the newspaper sector are not as large as you might think. The journalists, from my experience on both side of the industry, do try to report the truth and do try to act in an ethical way. That's my experience from my time in newspapers and in the broadcast sector.

    Where I think the main differences come are in what you might call the architecture of the organisations. Within the broadcast sector, we have quite a clear corporate governance in terms of our compliance manual, in terms of training, in terms of the lawyer, myself, attending the main editorial meeting in the morning. In addition, I think the role of the lawyer in slightly different in the television sector to the newspapers.

    For example, I am the head of compliance. In the newspapers, I was a legal adviser. So as the head of compliance, I think that certain things follow from that. Firstly, that I am there to advise, to ensure that on the day the correct advice is given to lawyers -- is given to journalists and editors, but also an over-arching duty, I think, to ensure that there is some guidance given to the journalists and to the organisations to ensure it complies with the law. So it's advice plus compliance.

  • The compliance limb suggests that you are not merely advising; you can direct. Is that right or not?

  • I would say guide and advise. It's not for me, in the end, to make the decision. I am a lawyer, in the end, not an editor, not the chief executive.

  • I understand. But if you're responsible for compliance, presumably that carries with it some -- I don't say "teeth"; that's not the right word, but rather more bite -- I am saying "teeth" -- than if you're a legal adviser alone, who might say, "Well, if you do this, then this has certain consequences." Presumably as head of compliance, aren't you rather more in a position to say not merely: "If you do this, this might have certain consequences", but: "Given my role as responsibility for compliance, you can't do this" or: "You shouldn't do this"?

  • Yes. I wouldn't always be quite so blunt at that. There's a process of doing it --

  • No, no, I'm trying to phrase it quite brightly.

  • Yes, but I think fundamentally you're correct, that there is more bite to the role as a compliance lawyer in the television sector than there is in newspapers, but that's not really just about the lawyer. There are other things as well. For example, we have tighter external regulation through Ofcom, and also, as an organisation, ITN, we're the programme maker, not the actual broadcaster, and part of the equation is what the broadcaster says -- you know, ITV or Channel 4, and their role in the programme as well. So it's greater external regulation but also internal regulation.

    But I go back to my fundamental point: what the journalists do and what they're trying to do, there's not as much difference as you would think.

  • Can I ask you to compare attitudes to legal risks. Were the newspapers prepared to take greater legal risks when publishing stories than television news has been in your experience?

  • I think it's fair to say different organisations have different levels of risk, and my experience is that the broadcasters -- we would probably take a risk level akin to a broadsheet, something like a broadsheet newspaper, but a tabloid newspaper may, in some circumstances, take a higher risk than a broadcaster. But that is the nature of the plurality of the media.

  • In terms of methods, did you sense, comparing your experience of the two branches of the media, any difference in the types of methods that the present media journalists were prepared to use? Were they prepared to use riskier methods?

  • It was quite a long time ago I was in newspapers -- it was 12 years ago -- so in terms of the actual details of methods, I can't really recall, you know, details of methods from my time in newspapers. My experience in the last 12 years is in broadcast and the methods there are quite rigorous. You can see through the ITN compliance manual and the BBC producers guidelines that there is a contrast in what you might call the slightly prescriptive way that broadcasters carry out their journalistic methods compared to what you've seen through others giving evidence on the newspaper side.

  • When you were working for the newspapers, were there any rumours of phone hacking circulating?

  • Did you ever come across phone hacking?

  • Did you ever come across the payment of public officials by journalists, whether by those on the papers that you were working for or others?

  • Can I return now to your witness statement? You tell us about your responsibilities as head of compliance. You start by explaining your advisory duties, then your compliance duties, your obligation being to manage the compliance function. You liaise internally and brief ITN personnel. You draft responses to legal complaints and manage litigation. You draft responses to complaints from the regulator. You provide internal training and you manage the system of duty lawyers. Over the page, you liaise externally on compliance and legal issues and complaints, you write the ITN compliance manual, you draft and put into practice new compliance policies, you provide a monthly update of legal and Ofcom complaints to the director, you attend relevant meetings, you're a representative of the ITN on industry committees. You deal with requests from the police or solicitors for disclosure and you advise non-editorial departments, such as ITN Source, on legal issues.

    From that portfolio of legal activities, can I ask you first of all about litigation. What volume of defamation and privacy litigation does ITN face?

  • We do not have a large amount of defamation and privacy legislation, it's fair to say. I think the key with ITN is to try to ensure that problems are stopped before broadcast, and we work very hard through our systems and high journalistic standards to ensure that what is broadcast is in compliance with the law and industry codes, and I think that that culture ensures that we actually have a low level of litigation and a low level of complaints.

  • In terms of successful litigation, whether it's settled or you lose at trial, can you give us some indication -- not precise statistics but what sort of level of successful legal complaints are we talking about?

  • Not many. In my time, I've been at ITN now for, as I said, over ten years, and we have not fought a libel case all the way through the courts and lost. We have been -- that's fair to say. In terms of complaints, if we get a libel complaint, we try to ensure we do a fair and reasonable assessment of what the complaint is, and if we believe we've got it wrong, we will try to put it right, ie. we'll reach some form of compromise to resolve the matter. We don't want to fight for the sake of it but as I said, my real point is we do not have a high level of litigation within ITN.

  • What sort of volume of settlements are we talking about?

  • Well, one thing I would say here, Mr Barr, is a simple point, really. I am a lawyer and it's a matter of sort of professional privilege as well. I think if I was to give out details of numbers to do with the company, it's a matter maybe I'd need to speak to the company about, because it is the company's privilege that I have, not my own.

  • If you're concerned about privilege, I won't press you. Perhaps you can take instructions and, if necessary, the figures can be provided.

  • Yes. I'm happy to, if the company authorise me to do so. It's not something I'm concerned about but it's a matter of --

  • Yes. I'm not sure that the extent of litigation is encompassed by the concept of advice given in the course of that litigation. Therefore, in other words, I'm not sure that your company's privilege does arise, but I am certainly content to receive a broad indication later.

  • Thank you very much. I appreciate that.

  • Now, if we move to the question of Ofcom complaints, can you give us an indication of the sort of volume of Ofcom complaints that ITN faces?

  • We don't have many complaints from Ofcom. I think it's fair to say within a year we would have -- I would say about ten complaints that we have to deal with, although within that number not all of them would be substantial complaints. There would be some which would be querying practices or asking us questions, and about four, I think, would be substantial, significant complaints.

  • You heard Mr Gray's answer to my questions about the operation of Ofcom regulation from the Channel 4 News editor's position. Do you, from your position as head of compliance at ITN, agree with those answers or is there anything you would like to add or take issue with?

  • No, I agree with Jim Gray's answers. We are regulated by Ofcom. We respect the regulator, we abide by their code, and we have no issues with the regulation of ITV and ITV news and Channel 4 News by Ofcom.

  • I'd just like to explore the ambit of the regulatory system. Obviously news which is broadcast on the television falls within the Ofcom regime, but I'm right, aren't I, that ITN also provides news content for mobile phone providers to make available on 3G phones?

  • We make content for mobile phones. We making a lot of content for the Internet generally as well.

  • Is that the subject of any regulation?

  • All the content that is produced by ITN is subject to ITN compliance manual, which I believe sets a higher standard than the Ofcom broadcasting code. So it's not really dependent on the individual method by which the content is delivered.

  • Imagine the quite-impossible-to-imagine circumstance in which there was a concern about something you put on the Internet. Would Ofcom deal with that or would actually that be Press Complaints Commission or nobody?

  • Well, if it was -- if it was Internet alone, Ofcom would not necessarily deal with it, if it's written text in the actual -- our Internet site. If it was a video on demand, like 4OD or ITV player, Ofcom can regulate that through ATVOD, the relatively recent new regulator, the co-regulator with Ofcom. But it doesn't -- Ofcom, as far as I'm aware, does not have the brief over written text within the Internet.

  • I'm not suggesting there's any reason why it should, but does that mean nobody looks at that?

  • No. There's no external body? I'm sure ITN have its compliance --

  • I'm not -- exactly right, yes.

  • -- and I'm not attacking its compliance regime or its procedures but I'm looking to see whether something external is there or not.

  • I'm not aware of there being a general Internet body that regulates material on the interpret. The Press Complaints Commission does have a role to regulate newspapers that are produced on the Internet, but Ofcom, as far as I'm aware, doesn't, and other regulatory bodies on the Internet, I'm not aware of them.

  • Does the same apply to the 3G mobile phone content? That's not regulated either?

  • I think you'll find that the -- if it's a mobile phone content, if it's a video on demand, then it may fall under the ATVOD brief, but again --

  • Oh, if it's text? I think it's unlikely. If it's video on demand, that's the way into the regulation. I think when the individuals from Ofcom come to give evidence, they will be better to advise, to actually say what the parameters of their brief is, but --

  • Yes, well, certainly, but you're not members of the PCC.

  • Moving to the paper systems, I think you drafted the compliance manual. You tell us not only about the manual but also internal editorial policies which include one for online posting and one for tweeting in court.

  • Does it follow that it was thought to be such an important issue that there should be separate policies for those activities?

  • Yes. Last -- in December 2010, the Lord Chief Justice issued some guidance about tweeting in court. Then there was a consultation. In the interim, ITN produced a protocol about how to carry out this new form of reporting the courts, emphasising the importance of contempt of court and not to prejudice the trial.

  • Yes, I've read it. Because I had some part in relation to the advice, I was quite interested to see how you put all that.

  • And then in terms of online postings, again with blogging, tweeting and everything else, it's important that it's re-emphasised to our journalists that our standards are constant. It's not dependent on the way content is delivered. We are a high profile company and whatever is broadcast or published in our name must be able to stand up to our standards.

  • Can I move now to the compliance manual. There's a section on privacy which summarises the law. I'm looking at tab 3, page 24.

    Over the page, on page 25 at the top, when dealing with what "private" means, the first bullet point is:

    "Reporting in places where there is an expectation of privacy. For example: churches, restaurants, offices and private residences."

    Do you find in practice that interpreting what is a situation which gives rise to a reasonable expectation of privacy is something that you have to give advice on frequently?

  • Privacy is one of the areas -- I would be advising on privacy, it's fair to say. But there are many others as well, whether it be libel, contempt and so. Privacy is one of the areas and it is a part of the role I conduct within ITN.

  • Then paragraph 5.4 on the same page, the concept of proportionality is dealt with and the procedure says:

    "Any action that amounts to a breach of privacy must always be proportionate to the subject matter under investigation. For example, to justify secret filming in a private place, the actual subject matter and/or wrongdoing being investigated must be serious. Not every investigation will warrant employing such methods."

    That follows a section on the public interest. Am I understanding correctly that at ITN, before you will invade privacy, you expect there to be a public interest and a test of prohibitionality, both of which must be passed before you proceed?

  • Is that test applied at the research stage, ie investigating the story, and at the publication or broadcasting stage, or is it applied only once?

  • It's applied twice. We have within ITN -- essentially when it comes to secret filming, if we were to do secret filming where there's a high level of privacy issues engaged, there are two stages that would have to be passed. Firstly, there would have to be a stage one form, where the editor signs off and you have to say why it was proportionate, why it was in the public interest, and once the footage has been gained, before broadcast, there would be a second step to ensure that what is broadcast again meets those standards.

    So it's quite a rigorous process.

  • Looking over the page at paragraph 5.6, there's further guidance about public figures. It says:

    "Everyone is entitled to some measure of privacy, even celebrities who put their private life into the public domain. However, whether an individual is a public figure, such as a politician or celebrity, who has placed their private life firmly in the public domain, or an ordinary member of the public who has not sought publicity may be relevant but not necessarily conclusive in considering a privacy issue."

    Am I to take it from that that ITN's position is that just because somebody has put aspects of their private life into the public domain, they're not necessarily open season for reporting?

  • Exactly right. It depends on the facts of the case. We would look at the specifics. It's fact-sensitive, and if the breach was warranted, taking into account the public interest and our definition of the public interest, then it may be allowed to go forward. But we do provide and -- you know, guidelines to our journalists to ensure that these tests are properly met. It's not a question of, you know, having no guidelines in place.

  • This has been an area of developing jurisprudence since the document was drafted in 2004. Is the position of ITN on this particular issue changing at all in the revised guidance?

  • Not significantly. Within 2004, I think within -- there are two sides to this. There's both the regulatory position but also the law as well, and within the manual in 2004, I did refer to the major case, the Naomi Campbell case. So the position hasn't changed substantially.

  • There are also sections on data protection and surveillance law, and I read the surveillance law section when questioning Mr Gray. It's on page 34. But I saved some questions about this for you as the draftsman.

  • It sets out a number of techniques -- telephone tapping, radio receivers, listening device or intercepting emails -- and goes on to say they "can amount to a criminal offence and should be avoided". Is that really strong enough, given that these techniques are all plainly illegal?

  • Perhaps you're right. I think within the revised manual it may be slightly stronger, but we're talking there generally about surveillance techniques, and if you had secret filming that was surveillance, in itself that may not be illegal. It may not be a criminal offence. So it was giving the basic point that telephone tapping and everything else, that can amount to a criminal offence and should be avoided. Really, that's a clear warning to any journalist to stay clear of it unless you're very certain and taking proper advice.

  • Plainly there was a warning. I don't want to detract from that. I was simply wishing to investigate whether you thought it was really strong enough, given how --

  • It will be interesting to see what paragraph 5.25 or its equivalent now says.

  • Can you recall --

  • Don't ask him to remember.

  • I can't remember off the top of my head but I think it does refer to the specific statutes as well.

  • Can I ask you now to think a little bit about the contact you might have had with the police first and then politicians. Have you had any contact with senior police figures in your role as head of compliance?

  • Looking towards the future, you have some experience of both sides of the industry and a lot of experience of dealing with Ofcom. Do you have any difficulties with the possibility of a future regulatory system which has a statutory backstop?

  • Expressing a personal view, I have a very strong view that the ecology and the way Ofcom is regulated is different to the way the press is regulated and I wouldn't recommend -- and I'm not suggesting -- that they should be regulated together, for a number of reasons. I think firstly it's not necessarily healthy to have such an enormous regulator regulating all organs of the media, and secondly, they have different backgrounds, the press and the broadcast media. The broadcast media is already very heavily regulated through the law, whether it be the Television Without Frontiers directive or the Audiovisual Service Media directive. Within the Human Rights Act, Article 10, it gives the states the rights to license broadcasters.

    So broadcasters are very heavily regulated within the law, but there has always been within this jurisdiction a strong traditional of the freedom of the press, going back 400 years, and I think that the traditions need to be respected. Adopting the points made by Lord Patten earlier, I would hope that there would be a system that could be viewed or considered by the press first, before there would be some form of statutory regulation.

  • I think you have, I think you have done that. I think you are going through that process.

  • No, no, no, no, we've done it in '92, after Princess Diana died, after the McCanns' story. Each time everybody says, "This is terrible, we must do something about it", and everybody says, "Of course we must, this is terrible", and everybody behaves and then some other big story drops out of the ether and it all reverts. That's a question, not a comment.

  • I think that's a fair point, and I think you're right, there has been evidence given in this Inquiry and over a number of months about allegations of wrongdoing, and it is a difficult and dark period for the press. But I do -- personally, I'm very interested in the history of freedom of expression. I'm also interested in freedom of expression being protected, and I believe, in terms of going forward, there would be a case for actually seeing whether there could be some stronger regulation of the press without a statutory intervention.

    As I said, that's my personal view.

  • How? Perhaps you could do it in two stages. Ie, you could see what the press actually propose in terms of a beefed-up regulation, greater powers, greater independence. Then that could be reviewed and seen how it would work and see who actually has joined up to it. Then, if it was not seen to be working, a second review or stage two, where we say, "This is not working", and as you said this morning, sir, Parliament would intervene.

  • That's actually what happened in Calcutt one and Calcutt two. Calcutt one said, "We'll try it"; Calcutt two said, "We tried it, it failed", and then the government of the day were persuaded not to do anything further about it.

  • Yes, but there will always be problems. There will be problems in the future as well and I think it's important that the traditional historic principles that underlie our unwritten constitution --

  • Help me why. Help me why any form of structure, not in relation to product, but only in relation to process, any form of process that is underpinned in any way impacts on the freedom of the press.

  • Well, I think it goes back -- again, it is -- I go back to the basic principle here of separation of powers. That is, if you are putting forward the regulation of the press through statute, then the regulator itself, if it has to regulate on matters to do with politicians or political issues, it will get -- it may be left open to being viewed as not necessarily independent or impartial.

  • But why? Because you could set up a structure -- and I'm not saying I'm going to do it, but you could set up a structure or recommend it -- I won't do anything -- you can set up a structure which made every single person on this body entirely independent of government, of politicians, so there's no invasion of a separation of powers at all. The judiciary are legislated in all sorts of ways, but even before the fourth estate, I think everybody would agree that an independent judiciary is a vital compenent of our society.

  • Yes, I totally agree. I support the independence of the judiciary enormously.

  • Yes. That wasn't my point. My point was that there are all sorts of statutes that affect us without affecting our independence.

  • Yes, but I think also you have to take into account perception, how it is viewed, and the perception is important to ensure that it is not perceived as a regulator that is in some way governed by politicians. It's quite a big leap from self-regulation by a number of newspaper editors to independent statutory regulators. I would suggest that there may be stages between those two, which could and should be considered. With humble respect, I was asked the question by Mr Barr, so I'm giving my personal view.

  • Oh no, no, don't get me wrong, I'm not -- you're entitled to your view. This is absolute right, and I'm interested in your opinion because you're obviously concerned in this area and have been for a very long time. I am simply concerned to understand why the existence of a process, which is staffed entirely independently, should be seen as impacting adversely on the freedom of the press or freedom of expression. I have difficulty with that. You say it's a perception thing, and I think that's what Mr Harding said, "If they could change that, they could change anything." Well, they can change anything now.

  • Exactly right. So the point is, before we get to that stage, my opinion is that other options should be explored and tested before we actually make that significant step of statutory regulation, but that is a personal view, I have to say.

  • Well, it depends what you mean by "statutory regulation", but I understand.

  • Can I ask whether you agree with Lord Patten's evidence that the regulatory system which Ofcom has provided has had the effect of regulating but not of censoring broadcasters?

  • That's fair to say. I agree with that.

  • Thank you. I have no more questions for you.

  • Thank you very much indeed.

  • Thank you very much, sir.

  • Sir, that's it for today.

  • Thank you very much. 10 o'clock tomorrow morning. Thank you.

  • (The hearing adjourned until 10 o'clock the following day)