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

  • MR MAX MOSLEY (sworn).

  • Make yourself comfortable, please, Mr Mosley and your full name for the record.

  • Is Max Rufus Mosley.

  • Mr Mosley can I thank you as well for the effort you've put into assisting the Inquiry. You must be heartily sick of lawyers, even if you are one yourself. But I'm very grateful.

  • Mr Mosley, there is a lengthy witness statement which you have signed. I'm going to ask you, please, to turn it up in that large forbidding bundle in front of you under tab 1 and confirm, please, on the 29th page, that that is your signature that bears the date 31 October this year, and that you have signed a statement of truth; is that correct?

  • In relation to yourself, you were born in 1940, you are fluent in French and German, you went to Christchurch, Oxford, to read physics and you then qualified as a barrister?

  • In terms of your professional career, you didn't in fact practice full-time in the Bar, you did something else altogether, Formula 1. Tell us a little bit about that.

  • While I was at the Bar, I used to race in club races as a sort of hobby and that grew and eventually I moved up into Formula 2, which is just the category below Formula 1, and met people I'd been at Oxford with and we decided to start a company making racing cars, so I gave up the Bar after five years and entered the world of motor racing.

  • What happened, to cut a very long story short, because it was a very distinguished career, is that at one point you were president of FISA, which is part of the FIA, but then in 1993, you were elected present of the FIA, which is the Federation Internationale de l'Automobile, the governing body of Formula 1?

  • And you remained in that role until your retirement in 2009. Please give us a thumbnail sketch of what might be said were your achievements in that role.

  • Obviously the FIA is known because of motorsport, because it particularly governs Formula 1, but it is actually the world federation of all the big motoring clubs, and so during the time I was there, we expanded enormously the amount of activity concerning ordinary motoring, and I had a great deal of activity, particularly in Brussels, to do with road safety and the environment, and the main thing I did was I started, with other people, the European new car assessment programme, which was a crash test programme to improve the safety of vehicles, and that led to really what can be called a revolution in the safety of road vehicles, and I think has contributed to saving a very great number of lives, hundreds in this country, thousands in Europe.

    Of course it wasn't just me, it was the organisation which I headed, but it's the side of it that nobody talks about, they talk more about Formula 1 motorsport, but it was actually the road safety plus the environmental things, things like improving the emissions legislation so it was more effective. There was an endless list of things to do.

  • This is road safety across the piece, nothing to do with trying to drive fast, but simply trying to drive safely on the roads of countries throughout Europe?

  • Exactly, sir, yes. It was -- deaths on the roads for example in this country has halved in the last 15 years and about 30 per cent of that, according to Transport Research Laboratory, is due to improved vehicle safety, and I think what we did is probably responsible for most, if not all, of that. So it's significant.

  • The world of Formula 1, of course, is a glamorous world. Would you say that you were someone who courted publicity, Mr Mosley?

  • No, never. I tried to get on and do my job. I felt that if you're running something like Formula 1, it's a bit like running a hotel. If it's done properly, you never see the manager. The people who were the stars and the publicity were the drivers. My job really was to try and run it and make sure first of all that nobody got killed and secondly that it was run as fairly as it possibly could be in a very, very difficult technological environment.

  • We should note that you received a Legion d'honneur in Paris, the only public function, I think, that your wife attended; is that correct?

  • It is correct. That was entirely to do with road safety rather than Formula 1.

  • One might be forgiven for observing on a personal note that this world is a long way removed from the world which your parents inhabited. Is that a fair way of describing it?

  • It is. There was an element of deliberateness about that. The first time that I took part in a club race and got somewhere up the grid, people were standing around talking about the list of people, and somebody said, "Mosley, Max Mosley, he must be some relation of Alf Mosley the coach builder from Leicester", and I thought I'd found a world where things are slightly different.

  • Thank you. I'm going to move straight to paragraph 10 of your witness statement, and the date is 30 March 2008, Mr Mosley. It's an article published in the News of the World. I'm just going to give the heading, we're not going to look at the text, I'm going to paraphrase one matter, and we're certainly not going to look further than that.

  • And there's no question of this article appearing --

  • "Formula 1 boss has sick Nazi orgy with five hookers."

    The article itself links you with your father, doesn't it?

  • The article appeared on the front page and then on pages 4 and 5 of the newspaper, and photographs appear which were the result of I think a covert camera in the lapel of Woman E, as she was called; is that correct?

  • Can you tell us, please, about the timing? The article was not in the first edition of the News of the World, it was in the second edition. Why do you think that was the case?

  • I think that was to avoid any danger of me finding out about the article and asking for an injunction to stop it being published.

  • So it's implicit in what you've said that the first you knew about the article is when it was drawn to your attention, you were given no forewarning by anyone?

  • That is correct. I first learnt of it about 10 o'clock on the Sunday morning.

  • The article had two aspects. There was a personal aspect, it goes without saying, but then overlaid on that there was the Nazi theme aspect.

  • And both must have caused you concern, but the Nazi theme was particularly damaging; is that right?

  • Well, yes. I mean the other theme was a straightforward invasion of privacy, which I thought was outrageous and illegal, but the Nazi allegation was completely untrue and to me, particularly, enormously damaging. And I was outraged by that.

  • Yes. What happened, tell me if I've got this right, on the News of the World website, video footage was placed?

  • Was it put there in a way in which it could be copied by others, to your knowledge, or not?

  • Yes, my understanding is that there is software which prevents videos being copied, but they did not, for whatever reason, employ that software, so the video was then copied all over the world.

  • I think initially the video footage was removed by the News of the World at the request of your lawyers. However they then notified you that they were going to put it back online, and that prompted you to apply for an emergency injunction; have I got that right?

  • I think that's right, from memory. We asked them to take it down, and then we applied for an injunction, but they put it up again I think over the weekend, even.

  • Just moving ahead a little bit, Mr Mosley, the precise chronology is that the application for an emergency injunction was heard by Mr Justice Eady the Friday afternoon, which was 4 April?

  • And his Lordship indicated that he would reserve his judgment over the weekend, and presumably deliver it on Monday morning. Do I have that right?

  • But what happened over the weekend in relation to the footage?

  • As I understand it, they then -- well, they then published a second story on 6 April.

  • Which purported to be an interview with Woman E, the one who had worn the camera, but we found out subsequently at the trial that Mr Thurlbeck who wrote the article had written it beforehand, took it up to her at Milton Keynes and said "I want you to sign this, here's £8,000" and intimated that if she didn't sign it, her picture would be published unpixelated.

  • So let me understand this. The article is the previous weekend.

  • It comes on for an injunction before Mr Justice Eady on the Friday.

  • He reserves without granting relief over the weekend; is that right?

  • And that is when you learned of these other activities?

  • The second article is over that weekend, on 6 April, and you told us the circumstances in which it was published and the evidence, inverted commas, on which it was based. In other words, no evidence at all.

  • No. I mean what happened subsequently is that the woman who was supposed to have given the interview appeared on Sky Television and said that there was no truth in the Nazi allegation at all. I should have said that the main purpose of the story on 6 April was to try and stand up the Nazi allegation, but she actually first of all didn't turn up to give evidence at the trial because she wasn't prepared to perjure herself, and secondly actually went on, as I say, television and said that there was no truth whatever in the story.

  • Hang on, I'm losing the chronology because the trial is much later on.

  • But the Sky News, was that --

  • Sky News -- I'm sorry, I've made a muddle there. The Sky News came after the trial. I'm so sorry.

  • She didn't turn up at the trial and then --

  • The facts are very much in your mind and I have them, I think, but I just want to be clear.

  • Even I'm getting a bit muddled. It's three years ago.

  • Let's take it slowly because it's important to keep the chronology in mind and not rush too far ahead to the next bend or chicane --

  • I think we can do without that, Mr Jay.

  • One aspect of the second article which you draw attention to in paragraph 15 of your witness statement at the end -- we don't have the article available even to us -- made it clear that the tape was being sent to Formula 1 chiefs; is that correct?

  • Your feeling was, and you develop this in paragraph 16, that the purpose of the second article was to threaten you; is that correct?

  • The judgment was given by Mr Justice Eady on 9 April, which I think must have been the Wednesday.

  • It doesn't matter, but in terms of summarising its outcome, you were unsuccessful principally because the material was already so far into the public domain that there was no practical purpose, Mr Justice Eady felt, in granting future injunctive relief. Is that a fair summary?

  • He said the dam had burst and in another place he said he didn't want to be King Canute, but he was really saying there was no point giving the injunction, it was everywhere.

  • What he did order was that there should be an expedited trial of your privacy claim; is that correct?

  • And the matter was very considerably expedited because the trial itself --

  • You're going a bit too fast, Mr Jay. Let me just understand it. Mr Justice Eady took the view that there was no point in coping with something that had already happened, and therefore he refused you relief, but he did, as I understand your evidence, observe there was no legitimate interest, element of public interest which would be served by the additional disclosure of the edited footage at this stage?

  • But he didn't grant relief in relation to that, but as I understand what you've said, that didn't stop the News of the World just reposting everything again?

  • Yes. That's exactly correct.

  • That's paragraph 36 of the judgment.

  • On the internal numbering, page 11. On the longer number, 31208. His Lordship made precisely those points.

  • Right. So then he orders an expedited trial.

  • The hearing dates -- it took place over five days, 7 to 10 and 14 July 2008.

  • Judgment itself was handed down on 24 July 2008.

  • We know that from page 14, which is the judgment, to which I will come in a moment. So this was all happening very rapidly in terms of the usual course of litigation, if I can so describe it. Can I deal with one point, though. Was it explained to you that if you decided to take defamation proceedings rather than proceedings in breach of privacy or breach of confidence, that the legal process would be much longer?

  • It was. I was told that would be about 18 months, and that for me would have been really then academic, because what I needed to do was to establish very, very quickly that the Nazi allegation was completely untrue.

  • In terms of the choices which were available to you, on the one hand you were facing expensive litigation, that is obvious.

  • Were you given any idea -- I'm not going to ask you to talk about what you advised in terms of whether you would win or lose, but were you given any idea about how much the litigation might cost before you embarked on it?

  • Yes. I mean, when I had my first meeting with counsel, they explained to me very carefully that first of all there's no such thing as certainty in litigation, which I was already aware of, obviously. That if I lost, it would cost £1 million or more. If I won, it would still cost tens of thousands of pounds. By taking the matter to court, the entire private information which I was complaining about would be rehearsed again in public, with all the press there, with the benefit of absolute privilege for anything that was said, and that at the end of all of that, no judge could remove the private information from the public mind. Indeed, by going to court, I was augmenting the degree to which the public were aware of it.

    But taking all that into account, I thought what they'd done was so outrageous I wanted to get these people into the witness box and demonstrate that they were liars. And the only way to do that was to put up with this extremely risky and unpleasant process, which I then decided to do.

  • The only other choice was to pack up your tent and beat a retreat, presumably?

  • Indeed, and of course first of all I felt that was the wrong thing to do, because even if I went to some obscure village in the Andes, within a week or two people would know about it, thanks to the News of the World putting it on the Internet, but I also felt that this was typical of some of the things they do, and I was somebody who fortunately had the means and a little bit of legal knowledge, and within 18 months would be free to concentrate anyway. I felt if I don't do it, I don't know who's going to, because the number of people they pick on with a really bad case who have the means to fight it is infinitesimally small. It really -- one of the terrible things is that unless you're very fortunate and happen to have a bit of money, you simply can't take this on, as things stand at the moment.

  • I'll deal with a number of contextual points before we come to the proceedings. The first point is the breadth of dissemination around the world with the Internet. Of course it's obvious but you touch on this in paragraph 22 of your witness statement. Indeed, you point out, is that right, in terms of the print media alone, there were 790 separate articles written in various UK newspapers and online between 30 March 2008 and 3 June 2008, so these articles were all commenting on the underlying substratum article in the News of the World, presumably?

  • Indeed. And, of course, on the Internet it was even more extensive. I mean, one example, I have a very good and energetic lawyer in Germany, and I think they've so far shut down 193 different sites which were repeating the News of the World story. Not shut down the sites, but got it removed from the site, I should say.

  • And the matter itself is obviously of interest to the FIA, but they commissioned a report from distinguished leading counsel here, Mr Anthony Scrivener, and his report, as you made clear in your evidence, exonerated you?

  • Yes, he said there was no basis whatever for the Nazi allegation.

  • One matter however I would like to deal with -- this is paragraph 25 -- is that an edited video or copy of it was sent to the president of the FIA senate?

  • By solicitors acting for the News of the World on their instructions; is that correct?

  • It's correct. They sent this and that was a matter for complaint actually in the French courts at a certain point because it was potentially criminal, what they did. But they sent the -- deliberately sent the entire video, inviting the FIA to show it to all the members.

  • And the inference which may be drawn is that they were putting some sort of political or other pressure on the FIA to vote you off, is that what you're saying?

  • Absolutely. I had the impression from the outset that as soon as I challenged the original story, that the entire resources of News International, News Group Newspapers, were then deployed effectively to try and destroy me, and obviously one way of attacking would be to send this thing to the FIA and try and get them all to look at it and hope that they get rid of me.

  • There was a vote of confidence, but you won it?

  • Yes. One of the things I did at the outset was I suggested to the body that deals with these things that we should have an extraordinary general assembly and invite the membership to vote, because it seemed to me they'd voted me into the position and they were the ones who were entitled to tell me I should resign or I shouldn't resign, and so I called a general assembly, everybody who wanted to say something was allowed to do so. At the end of it they voted and I won by a substantial majority.

  • In relation to the evidence adduced at the civil trial --

  • Before you go on to that new topic, Mr Jay, can I just ask a question arising out of something you said two minutes ago, Mr Mosley. You said your energetic lawyers in Germany had shut down 193 different stories on different sites.

  • Is it only in Germany you've taken such action?

  • No, sir, I've done it in a number of different countries. I think we have litigation going on in 22 or 23 countries at the moment, and it's just an ongoing process because -- I mean I'm trying to do everything I can to get this material removed from the web and it's not easy, it's ongoing, it's very expensive, but Germany is actually the number one example. Because of the Nazi thing, it got very much picked up in Germany.

  • How many sites have you been able to close down? If you don't know exactly -- I'm just trying to get a feel for the size of the exercise.

  • It's in the hundreds. My lawyers would probably produce an exact figure. One of the difficulties is that Google have these automatic search machines so if somebody puts something up somewhere, if you Google my name, it will appear. We've been saying to Google, you shouldn't do this, this material is illegal, these pictures have been ruled illegal in the English High Court. They say we're not obliged to police the web and we don't want to police the web, so we have brought proceedings against them in France and Germany where the jurisprudence is favourable. We're also considering bringing proceedings against them in California.

    But the fundamental point is that Google could stop this material appearing, but they don't, or they won't as a matter of principle. My position is that if the search engines -- if somebody were to stop the search engines producing the material, the actual sites don't really matter because without a search engine, nobody will find it, it would be just a few friends of the person who posts it. The really dangerous thing are the search engines.

  • Yes. Well, that's part of the problem.

  • The evidence before Mr Justice Eady -- of course, this is quite complicated and I'm going to just, if I may, identify some highlights, otherwise there's a danger we'll get bogged down in detail which people will not understand because they haven't pre-read your witness statement. There are just a number of points I'd like to bring out. The first point is the hidden pinhead camera, which was on the lapel of Woman E. Had she been given any instructions by the News of the World which you can assist us about, please, Mr Mosley?

  • Well, she was, because they had a rehearsal where Thurlbeck showed her how to fit it and wear it and this rehearsal was recorded on the tape. I don't think they knew this, to be fair to them. The beginning of the tape is Thurlbeck saying to her, "When you get him to do the sieg heil, get him to stand back about 3 metres so you get it in the shot". It was quite clear to me when I saw this that Thurlbeck was trying to set the whole thing up from the beginning as a Nazi episode. She, of course, never mentioned anything to do with Nazi. She knew that had she done so, everyone would have been horrified. Particularly the German girl, because being a modern German person, she would have been horrified. But it's absolutely clearly there, Thurlbeck telling her to try and get me doing a sieg heil.

  • To be clear about it, you obtain a copy of the video footage as part and parcel of the disclosure in the civil proceedings?

  • Then the second point, and you've already dealt with this, Mr Mosley, this is paragraph 33, and this relates to the second article on 6 April, the follow-up article, Woman E was offered some more money, £8,000, you told us. So we understand it in sequence, what is the significance of this point? What are you driving at here?

  • What to me at least is significant is that they wanted a follow-up article because I'd said that this was untrue, they wanted to really, really put the boot in, and so they wrote this article purporting to be by the lady and completely composed by Thurlbeck, got her to sign it, then went back and rewrote parts of it.

    During the trial, he was saying this was the result of numerous telephone conversations with her, which I don't think anybody really believes. The judge asked him if he'd kept a note, which of course he hadn't. It's not surprising, I don't think the conversations ever took place. He simply invented the entire article.

  • In paragraphs 34 and 35, you explain that within the News of the World this story was very tightly kept, in other words to a limited number of people to avoid the possibility of leaks, because the risk of leaks would obviously cause a consequent risk that you might take proceedings for an injunction; is that right?

  • I think that's right. I think they realised that publishing this article was completely illegal, and therefore if I found out about it and went to a judge, it would be stopped. But, therefore, knowing it was illegal, they took elaborate precautions, including the spoof first edition, which you mentioned earlier, to make sure that nobody in my camp, as it were, would find out.

  • The last evidential point I'd like to deal with, and this is quite a detailed point, but it's under the heading "Blackmail", and I'm afraid it does relate to Mr Thurlbeck. Could you tell us about this in your own words? Maybe we can start, I'll read it out, with an email which was sent on 2 April 2008, which is three or four days after the publication of the first article. The email reads:

    "I hope you're well. I'm Neville Thurlbeck, the chief reporter at the News of the World, the journalist who wrote the story about Max Mosley's party with you and your girls on Friday. Please take a breath before you get angry with me! I did ensure that all your faces were blocked out to spare you any grief, and soon the story will become history, as life and the news agenda move on very quickly. There's a substantial sum of money available to you or any of the girls in return for an exclusive interview with us. The interview can be done anonymously and your face can be blacked out too. So it's pretty straightforward. Shall we meet/talk?"

    Will you comment on that? But before you do, can I read out the email which was sent the following day, paragraph 37 of your witness statement:

    "I'm just about to send you a series of pictures which will form the basis of our article this week. We want to reveal the identities of the girls involved in the orgy with Max, as this is the only follow-up we have to our story. Our preferred story, however, would be you speaking to us directly about your dealings with Max and for that we would be extremely grateful. In return for this we would grant you full anonymity, pixelate your faces on all photographs and secure a substantial sum of money for you. This puts you firmly in the driving seat and allows you much greater control as well as preserving your anonymities (your names won't be used or your pictures). Please don't hesitate to call me or email me with any thoughts."

    And then finally there was an email with an offer of money.

    Anybody reading that, indeed, this was Mr Justice Eady's conclusion, might think this was close to being blackmail. Is that fair, Mr Mosley?

  • I think so. What he was saying to them, particularly in the last email, was: if you don't co-operate, we will publish your pictures unpixelated. If you do, we'll give you £8,000 and pixelate them.

    For these women, that was terrifying, because they would all dread the idea of any of their family finding out, or their work. Three of them had really significant positions. One was a very serious scientist, another one had a major position in healthcare, another one ran an office. Very significant. Only one of them was what you might call fairly anonymous, and they were all terribly at risk. And the thought of this being published in the News of the World was terrifying for them.

    But the really admirable thing is that they did not succumb to it.

  • Thank you, Mr Mosley. I'm not going to deal with what happened at the trial itself. What I am going to deal with is the judgment of Mr Justice Eady and navigate my way through it so that one can understand his findings and his reasoning, because his reasoning is important in terms of Article 8.

    In our bundle, the judgment starts at the internal numbering at page 14. It is a lengthy judgment.

  • It's certainly a judgment that repays reading in full.

  • Mr Justice Eady first of all, having set the scene, and I'm at paragraph 44 on the little internal numbers page 24, considers the factual question: was there a Nazi theme? And his conclusion was that there was not, although his conclusion comes at a slightly later point in the judgment.

    At paragraph 79, this is page 31, Mr Justice Eady deals with the blackmail allegation and he's absolutely clear about it, Mr Mosley. At paragraph 82 at page 32, Mr Justice Eady says:

    "This would appear to contain a clear threat to the women involved that unless they co-operated with Mr Thurlbeck, their identities would be revealed."

    There was then some cross-examination of Mr Myler on this issue at paragraph 85, and Mr Myler accepted that these emails could be interpreted as a threat. Mr Justice Eady's observation in relation to Mr Myler at the very end of paragraph 85:

    "This seemed to fall short of a wholesale endorsement of his chief report's behaviour."

  • He has a wonderful way of understatement.

  • Yes, it's a nice flight of myosis, I suppose.

  • It's the witness, Mr Myler works out that the cross-examiner is talking about blackmail and he said, "I'm not so sure it is", and he's asked:

    "Do you think there's a justification about threats?

    "I've already accepted that clearly looking at this it could be interpreted as a threat and I accept that."

    I would love to know how else it could be interpreted.

  • Yes. Mr Justice Eady then asked his own questions at paragraph 86. His questions were directed to the obvious point: well, why wasn't this raised with Mr Thurlbeck? Because here was Mr Thurlbeck possibly blackmailing people. Why didn't Mr Myler raise that with him? The answer was not, in Mr Justice Eady's view, or perhaps the view of any objective reader, satisfactory. What Mr Justice Eady says at the bottom of page 33:

    "That is effectively a non-answer, from which it would appear that Mr Myler did not consider that there was anything at all objectionable about Mr Thurlbeck's approach to the two women, as he didn't query it at any stage. This discloses a remarkable state of affairs."

    So it's a matter for others to judge, but arguably quite a strong judicial criticism there.

  • Well, I mean coming from a High Court judge, I think that's quite impressive, but almost sort of more impressive is that a few months later they applied for the title of newspaper of the year based on their groundbreaking year, they said, the Mosley legal:

    "We believe the impact of our experience and our way forward, following the Max Mosley legal ruling, have helped define the nature of modern tabloid reporting in Britain. The Mosley case itself ... [et cetera] was among the most fiercely debated stories of 2008."

    They go on to say what a wonderful job they've done, when a High Court judge has practically told them that they should have done something about this reporter. But I think that's -- it's completely symptomatic of their entire attitude.

  • In paragraph 87, his Lordship records the sequence of cross-examination of Mr Thurlbeck on this point. I'm not going to go through it with you, but the upshot was at the end of paragraph 87 that Mr Thurlbeck either didn't understand the point that was being put to him in cross-examination or possibly pretended not to understand the point that was put to him in cross-examination. We're not sure exactly which.

  • Yes. His line was: but I was giving them a choice. But of course that's what blackmailers always do. They give you a choice between doing what they're blackmailing you into doing ...

  • Those are all the facts we need, and to be absolutely clear, the judge makes a finding there was no Nazi theme.

  • Just before you leave that, there is a point here, because I go back to the words that ring in my ears all the time: culture, practice and ethics. Mr Justice Eady said, when it was being put to him that it's blackmailing, he said:

    "No, I'm offering to give them something, I'm offering to pay them money for an anonymous interview. I'm offering to pay them, not to take anything from them, so in that sense I'm not blackmailing them at all. That thought never crossed my mind. I'm offering the choice."

    And the judge goes on:

    "It seems that Mr Thurlbeck genuinely did not see the point yet it is elementary that blackmail can be committed by the threat to do something which would not in itself be unlawful."

    So the question that's obviously going to have to be asked, quite apart from any questions to Mr Thurlbeck about it, is whether that state of mind was limited to one reporter or one newspaper or is actually the state of mind of others.

  • It's precisely a line which we have in mind, and Mr Thurlbeck has been asked to deal with that.

  • Yes. But my point is that it's not just Mr Thurlbeck, because one can reach conclusions about an individual which are all fine and dandy and don't go very far. The question is: is this a pervasive perception? If it isn't, then I want to know it. If it is, then equally.

  • Yes.

    Mr Justice Eady's route to his conclusion as a matter of law, can we see whether we can chart a path through that. Move forward to page 40 on the internal numbering, paragraph 110. He's dealing here with the public interest issue. Was there a public interest to justify the intrusion? He deals first with a point which I'm sure didn't feature in the News of the World's thinking, but whether there was underlying criminality, and he soundly rejected that point. It's not something we need go into, Mr Mosley.

    He then deals at paragraph 112 with the Nazi theme point. There are two aspects to this. The first aspect is paragraph 123, if I can take them slightly out of sequence, where he finds that there wasn't a Nazi theme and therefore self-evidently if there wasn't a Nazi theme, it could not even classify as a possible public interest.

    Then in paragraph 112, he considers, well, if I had come to the conclusion there was a Nazi theme, what then? Maybe his conclusion was somewhat equivocal, he didn't have to decide the point, but you may or may not have -- or the case may or may not have followed a certain path had he made a finding of fact which he didn't.

    The third public interest issue, and this I think is an important one, is under the heading "Depravity and adultery". It starts at paragraph 124. The argument which Mr Justice Eady was addressing was whether there was a public interest in revealing immoral, depraved or even to an extent adulterous behaviour.

    His Lordship found that there wasn't, really as a matter of law, in particular at paragraph 127. But his analysis of the Strasbourg cases and a case in the House of Lords called Campbell was that given that there was a human right in play here, namely a right to privacy, and I quote:

    "It's not for journalists to undermine human rights or for judges to refuse to enforce them merely on grounds of taste or moral disapproval. Everyone is naturally entitled to espouse moral or religious beliefs to the effect that certain types of sexual behaviour are wrong or demeaning to those participating. That does not mean that they're entitled to hound those who practice them or to detract them from their right to live life as they choose."

    The real point he's making is that, given that we are in the domain of privacy, the law does not concern itself with making a moral judgment as to what occurs within the domain of privacy; my understanding of what Mr Justice Eady is saying. Do you follow that, Mr Mosley?

  • I do. I think that it's entirely reasonable because the problem is that if you could breach privacy merely because you disapproved of what someone was doing or it was not to your taste, well, we would be all over the place because sexual behaviour covers a huge variety of things, and when you start analysing it, what I might like, somebody else might hate, and vice versa, so where would it stop? And the rational thing is to say that provided it's adults and provided it's in private and provided everybody consents, genuinely consents, then it is nobody else's business.

    I think Mr Justice Eady, if I've understood him rightly, was stating the law to be precisely that. In other words, it's the sort of John Stuart Mill attitude rather than the rather disapproving moralist attitude, and I think the law recognised the John Stuart Mill, that if you're not doing any harm to anybody, you should be allowed to do whatever you like. I think that view is the modern view, but of course once upon a time, people felt completely able to pillory people because they did something of which they disproved or their tastes were different, but we've moved on from that, and the idea that it's in some way the function of the tabloid journalists to pillory people whose tastes may be unusual is completely outdated. If that had not disappeared, we would still be persecuting homosexuals, the gay community would be at risk, or anybody else.

    So I think he's absolutely right, and I think it's extraordinary that the tabloid press don't recognise that, and of course the truth of it is that they do recognise it, but it doesn't suit them to admit that that is actually how things should be.

  • Thank you, Mr Mosley. I think one has to be careful to distinguish between a philosophical position, which of course you're quite entitled to give us, and we can agree or disagree with that, and a legal analysis. Mr Justice Eady may or may not share that philosophical view, but all he was doing was saying, analysing Article 8 of the Convention, the concept of privacy means, and this is how the courts have interpreted it, that you do not conduct a moral judgment of what is occurring in the domain of privacy. It is just off limits. Do you see that?

  • I see that completely, and it makes absolute sense.

  • I know of no case in Strasbourg or domestically which contradicts that part of Mr Justice Eady's reasoning. It is core to one of the key issues involving this Inquiry.

  • I think it is, and if I may say so, had he got that wrong, that would have been a matter for the Court of Appeal. The fact that it didn't go to the Court of Appeal I think strongly suggests that he got it right.

  • That's certainly a fair point, since we know the case wasn't appealed.

    The only other point of principle which we gather from this judgment is -- and this is paragraph 135 -- the point: who decides the public interest? His Lordship is making it clear, and again this must be right as a matter of basic law, that it's for the court to decide ultimately, if the case comes before the court, and journalists' perception doesn't assist.

  • I think, yes, that must be right as well.

  • Well, except that the court has to have regard to editorial judgment and the discretion so far as tastes and modes of expression are concerned. I'm merely just reading on.

  • At the end of the day, the Nazi theme allegation having fallen to the ground and the immorality point being a point which could be taken, there was no public interest justification which could be prayed in aid and you won.

  • Is that right? But you weren't successful in obtaining exemplary damages. It probably isn't necessary to explore why, but he made findings of fact which meant that whatever the law was on Cassell v Broome and the second head of exemplary damages law, you weren't going to obtain them in these circumstances. In a nutshell, it was that?

  • In terms of damages, the award was £60,000, which was, perhaps still is, the highest award of damages in a privacy case. Do you happen to know whether it still is the highest?

  • I believe it still is.

  • I might perhaps add that I think I'm right in saying that since my case there's only been one full privacy trial, and that was the recent Rio Ferdinand case, which he actually lost, but of course people don't sue for the reasons I explained earlier, that you have to be quite eccentric or very determined before you bring a privacy action, because it's lose, lose, lose.

  • We don't know how many settled. We don't know how many have settled.

  • No, I don't know, but I think what happens is if somebody find out there's an application for an injunction, which then usually will be granted, if there's a good case, and that's the end of the case. Then, of course, if there's an application for an injunction that fails, then the information will be published and that's the end of the matter, so to speak.

    So I think somebody being awarded damages, I don't think there has been -- and certainly none of the settlements that I've heard of, except of course the famous Taylor and Clifford settlements, but that's another matter, and I think there are other reasons there, I've not heard of large sums of money changing hands.

  • Mr Justice Eady at the end of his judgment recognises two obvious things. The first is, and this always applies, that no amount of damages can fully compensate you for the damage done. That will always apply, whatever the context.

    Secondly, he says, in relation to you:

    "He is hardly exaggerating when he says that his life was ruined."

    And this is the "genie out of the bottle" point, isn't it?

  • It is because you work all your life to try and achieve something or do something useful, and I'd got to the point -- when this came out, I'd got to the age of 68 and I had achieved things that I was proud of, anyway, to do with the work I'd been doing with road safety and so on, and suddenly something like this happens and that's what you're remembered for, and however long I live now, that is the number one thing that people think of when they hear my name, and of course it really matters --

    And sometimes, if I could just make this point, it's sometimes said, yes, but it's the same with personal injuries. If you have an injury, if you lose your arm, the courts can do nothing, they can only compensate you financially, and of course that's true. But the difference, and the fundamental difference, is this: that if you could go to a High Court judge and say, "I'm about to have an accident, I'm going to lose my arm, will you please stop the accident, because this is all you have to do, make an order", it's inconceivable that he'd refuse the order. The problem with accidents is that every possible precaution is taken to try and stop them happening, health and safety and so on, but in the end they happen, whereas any revelation of privacy can be stopped by a judge. The only thing that's absolutely essential is that you should know so that you can go to a judge. As soon as you know about it, it goes to an independent right of assessment where the judge will weigh your right to privacy against somebody's right to free speech, or whatever, and he will make a decision. But if they ambush you and they publish and it's out there, no judge on earth can save you. That's really what it comes to.

  • The judgment was handed down, there was not an appeal, we know that as a matter of record. There was a public statement or prepared statement delivered by Mr Myler on the outside here accusing the courts of introducing a privacy law via the back door. That's paragraph 50 of your witness statement. But to be fair to Mr Myler, that's his right, isn't it, to comment to the judgment? Would you agree?

  • I think he's absolutely got a right to comment on the judgment.

  • Whether he should have commented without appealing may be for others to judge, but there was some fairly -- certainly bad taste, if I may be forgiven for describing it in that way, reporting. Paragraph 52 of your judgment.

  • Of your statement, pardon me. Some newspaper couldn't resist the rather feeble crack:

    "The day freedom got spanked."

  • Yes. I mean, this is sort of typical of -- there's a steady stream of that sort of thing coming from the gutter press, and, you know, I think one just has to put up with that. Once it was out, they were going to do this, but -- and it's not just the Sun.

  • But again, they had the right to comment, and whether they do so in a high-minded way or some different way is a matter for their house style?

  • Indeed. I think it reflects more on them than on me.

  • It's 1 o'clock.

  • I think that's a convenient moment, but before we finish, you quoted, Mr Mosley, from a document which you described as the News of the World either putting themselves forward for or otherwise being put forward for an award. Is that in the bundle of documents?

  • I'm really sorry, sir, it's not, but I have a copy and we can make copies available. I forgot to put it in.

  • No, that's fair enough, but I would like to see it. Just so that I make it clear why I want to see it, because it goes back to whether this is one reporter or, indeed, one journal, but what is happening in the industry as a whole.

  • Sir, as you will see, this makes it clear that they were very proud of what they'd done.

  • All right. That's the point. I'd be very grateful if you could make that available. Thank you very much. 2 o'clock.

  • (The luncheon adjournment)

  • Mr Mosley, I believe I was about to take you to paragraph 53 of your witness statement, please. You suggest there that Mr Dacre and Ms Brooks agreed to launch a campaign against Mr Justice Eady.

  • Yes, that's correct.

  • Was that a joint campaign or a several campaign?

  • As my understanding is that it was several in effect, but joint in agreement. My understanding is that they got together, but then decided that Mr Justice Eady was to be attacked.

  • I am asked to put to you this, and it probably is no surprise, that Associated's position is that whatever stance Mr Dacre took, and he was quite entitled to take it, it certainly wasn't in any collusion with Ms Brooks, he did it entirely off his own bat. Do you have any comment?

  • I would not find that surprising, but I must say in general about these people, and by that I mean Rebekah Brooks as well as Mr Dacre, that certainly in Rebekah Brooks' case she could deny for England because they denied the "for Neville" email, they denied that they'd ever had more than one journalist involved in hacking, they denied it again until it became absolutely obvious and Mr Edmondson then was fired. They kept denying it. Then in April of I think this year, they admitted that it could have happened between (inaudible) and us. I could go on and on and on.

  • Fair enough, we get the picture. You are providing us the commentary.

  • I get the picture of your view, or you're entitled to your view as other people are entitled to their view, but the question is: does the basis of your understanding have an evidential foundation?

  • It does. I was told this by a senior -- former senior employee of News International. It would be wrong for me to announce his name, because obviously this was confidential, but I'd be very happy to write it down for you, sir, if that would be helpful.

  • All right. So you've got it from a source and you can't go beyond it?

  • Correct. But I'm very confident that I was told the truth.

  • Before I deal with a very serious issue, Mr Mosley, paragraph 54, you refer to another piece in the Daily Mail, which has a bit of a shivering title:

    "As cold as a frozen haddock, Mr Justice Eady hands down his views shorn of moral balance."

    Another example though of comment, rightly or wrongly, on a decision, isn't it?

  • One could say that. I would say this is calculated to intimidate a judge. If I put myself in the position of Mr Justice Eady, somebody who is a distinguished judge and jurist, who is not used to being attacked in the public domain, like for example I have been to do with motor racing, I would find that offensive, I would find it worrying.

    If you think those sort of articles are going to appear, it must influence you to some degree. You must realise just the way that the so-called celebrities realise that they're going to be attacked. It's highly unpleasant. And I cannot believe this is done for any purpose other than to intimidate.

  • Let me assure you, Mr Mosley, that although we don't hit the headlines quite so frequently, we're well used to being criticised and to saying nothing about it. And that may require biting one's tongue occasionally, but we recognise that goes with the territory and it doesn't alter anything we do.

  • I'm sure it has no effect, sir, no.

  • I must deal with the issue of impact, Mr Mosley.

  • And this is the serious issue I was touching on. Paragraph 57. I appreciate a personal matter, but could you tell us in your own words about that, please?

  • Yes. My son was a drug addict, and he was one of these people, extremely intelligent, had a mathematics PhD, he'd co-authored a paper on economics with Lord Desai, he'd written open source software with Linux and got prizes, intelligent. But like a lot of intelligent people, he suffered from depression and his way of dealing with this, the only effective way he found, despite endless doctors, was drugs.

    He was getting to the age where he knew that if he didn't get off -- he made several attempts to get off -- if he didn't get off his drugs, probably this would end badly. He was struggling with it. He had overcome his problem and the News of the World story had the most devastating effect on him. He really couldn't bear it. It was just so awful. And one can imagine that. I mean it's bad for me, but for my sons to see pictures of your father in that sort of situation all over the newspapers, all over the web, all your friends seeing it, also for my wife, and he really couldn't bear it. He went back on the drugs and he didn't -- it would be wrong to say he committed suicide. He didn't. That was fairly clear from all the circumstances. But like many people on hard drugs, it's extremely dangerous and you make a small mistake and you die, and that's what happened.

  • That was in May of 2009?

  • You deal with some of the other effects of that in paragraph 58. You went to your late son's house to sort out his personal effects. There was one journalist on the doorstep and then frankly a whole mob arrived within a short space of time?

  • This is correct. What was to me -- I don't want to overdo it, but what to me was so horrifying was there was no sense of this matters, these are human beings, these people actually mind, that is a terrible situation for somebody to be in. It's oh, maybe we can write a story, so let's be there, and they had these photographers there, and I called my solicitor, he arrived on the scene and gave them all a letter, and they left, because I think they knew very -- they all called their -- obviously they're all on their mobile phones, I suspect to headquarters, and I think they were probably told that we'd have a rerun of I think it was called Hanover versus Germany in the court, we would have had a rerun of that. I would have sued them because I thought it was absolutely outrageous to come and try and take pictures of somebody in that sort of situation. We were in a desperate situation. They have no human feeling at all.

  • Thank you. We've already touched on some of the other consequences of Internet publication, and the next section of your witness statement deals with that in some detail, Internet use in the United Kingdom through the News of the World until you win your case, and then there were all the knock-on effects throughout the world, really, with the World Wide Web. You've already told us that you have instructed, as you've had to have done, firms of lawyers in 20 different jurisdictions in order to try and close this down.

  • That is correct. We haven't succeeded. All we can really do is mitigate, but we have reduced it, that must be said.

  • Yes. You've told us how much that has cost you.

  • I've never really added it up, I dread doing it, but it's well over £500,000, well over, and it's ongoing.

  • I'd like to deal with a related issue, namely the economics of litigation, the particular case which you've won in front of Mr Justice Eady. Slightly out of sequence, it's paragraph 76 of your witness statement.

  • This is something any civil lawyer will understand immediately, but the public at large would be forgiven for not understanding why, if you win a case, you're, as it were, not left out of pocket, but you are left out of pocket because you get your £60,000 damages awarded by Mr Justice Eady, your legal costs are your obligation to pay your lawyers whatever they reasonably charge you, and that's a matter of contract between you and them. You then get an order for assessment of your costs from the judge, which you got in your case, and then another judge, the costs judge, assesses the costs and at the end of that exercise, all by agreement, you ended up with in fact a very good result. 82 per cent of all your costs were then paid by the losing party, News International. Is that a fair summary of what happened?

  • That's an exact summary. Because I think the difficulty is this, that you never, except in the most exceptional circumstances, get all your costs. This is trivial for the lawyers, but you don't. And that means there is a difference between the costs the court gives you and the costs that you actually have to pay. They come out of your damages. In this case, they exceeded the damages, and in virtually any privacy case they would exceed the damages.

  • We actually learnt about this yesterday because Mr Lewis was making the point in connection with the settlement of one of his actions that he received every single penny piece of his costs. That I think was the Taylor litigation. Yes.

  • That may or may not have one or two unusual features, but in your case where you had a good result, there was a shortfall of 18 per cent, and in pounds, shillings and pence, that's £30,000 out of pocket, isn't it?

  • Exactly, exactly. I think that Mr Lewis in the Taylor case was absolutely astonished at the level --

  • I'd like to come back to a point which I know you regard as extremely important, the argument for prior notification. In your own words, as succinctly as you can, give us the nutshell of the point which you wish to impress on this Inquiry, please, Mr Mosley.

  • In a nutshell, the point is that in a privacy matter, once the information has been made public, it can never ever be made private again. Therefore, the only effective remedy is to stop it becoming public. What is needed is a mechanism to get an order to stop it becoming public. That is completely doable if you know that the information is about to be published. The only gap in the law, and it is a gap in the law, is if the newspaper manages to keep secret their intention to publish the information, then out it comes and it's too late, and there's nothing more to be done. What follows from that is there should be prior notification.

    One quick point on that is that Mr Dacre, in evidence to the Select Committee, said that in 99 cases out of 100, the individual has notice, because the newspaper would normally approach somebody and ask them for a comment. He may have been slightly exaggerating, but I can't believe he would not tell the truth to a Select Committee, so it's a minority of cases, but of course they're the very cases where the newspaper knows that if you did find out, you'd get an injunction. So they keep it secret, knowing that they can -- once they've published it, no one in their right mind, I say that of myself, no one in their right mind would sue, because it will cost you money, you'll get the information published all over again and you don't solve the problem because the information can't be made private.

    So it's those 1 per cent that are really dangerous, but without notification, a newspaper at the moment, if they have outrageous information or pictures, if they can only publish them before the person finds out, there's no remedy, unless one says, well, £30,000, repetition and so on is a remedy, but really repetition in court is rather like suing because you have a broken leg, going to court and then they break the other leg, with absolute privilege, as well, because it just makes it worse.

    Sorry, that wasn't much of a nutshell, but in a nutshell, it is the very cases where there's an egregious breach of privacy that are the ones where they don't tell you and where prior notification is essential.

  • There's another argument which one might throw into the melting pot and it's this, that the prior notification, if it's a legal requirement, will then lead to a fairly rapid hearing before a judge, and so the legal costs will be kept within reasonable bounds. The second point is that you'll only get the injunction as a claimant unless you show on balance that your privacy has been violated and there's no public interest justification.

    So in practical terms, if you win the prior notification injunction, you in effect will win the case, but it works the other way around. If you lose it, the newspaper will publish with impunity, perhaps rightly, because they know they're in the right, so it's all self-contained in a more rapid and cheaper process. Do you agree or disagree with that?

  • I agree completely. My information is that to seek an injunction, the costs are something less than 5 per cent of the costs of a full trial. Of course, that also applies to the newspaper.

    If I may, as you say, under I think it's section 12(3) of the Act, you have to show that you're more likely than not to win the case and you have to satisfy the judge you're more likely than not. Well, what can be wrong with that? Because if an independent judge thinks you're more likely than not to win, then you should have injunction, because if you don't have -- if it's out, although you win the case, you win nothing because the information is in the public domain.

  • That answer is not wholly going to satisfy the Inquiry to this extent, that although privacy proceedings, £500,000 each side is really only for the very wealthy, even these proceedings, injunction proceedings, are for the wealthy and the bold. Pre-notification doesn't deal with, if I may say so, the ordinary person with limited means. Would you agree with that?

  • Completely. I very much believe that there should be an alternative mechanism. There should be some form of tribunal, some form of enhanced regulatory body, but it's a very big question, but to which you could go. I think it's absolutely essential that such a body should be free of charge, because otherwise, however cheap it is, even if you went to the county courts, as some of the academics have suggested, that is beyond the means of a great many people, and there is no reason why it shouldn't be free.

    If I may say this, invasion of privacy is worse than burglary because if somebody burgles your house, unless it's heirlooms, you can replace the things that have been taken, repair the damage. But if someone breaches your privacy, you can never repair the damage, never put it right again. So it matters. But with burglary, if you find a burglar in your house and call the police, they don't say, "Are you rich? Because if you're not rich, we're not going to come". They come and arrest him. There should be a similar mechanism to stop people breaching the privacy of an ordinary person who is not in a position to find the money to ask for an injunction.

  • Of course, to say it should be free of charge begs the question as to who is going to pay for it.

  • Indeed, sir. But if you had a body that was similar to the Press Complaints Commission, which is free, but was independent both of the press and the government and everybody else, and made the central division, which is often not talked about, the division between making the rules and enforcing the rules, and the only thing -- at the moment, the rules themselves are not that bad. What's missing with the PCC is the ability to enforce them. If you had a body that could enforce the rules, it almost -- you don't necessarily have to have superqualified people. I'd prefer to have anyone deciding whether my privacy should be breached or not more than an editor.

  • The other argument is that it would smack of censorship, wouldn't it?

  • No more than the existing procedure. The only difference between that, sir, and the existing procedure would be that it would be available free of charge. I mean, people don't say that if I go -- if I had been to Mr Justice Eady with the knowledge and asked for an injunction, I suppose the News of the World might have said it was censorship, but I don't think any reasonable person would have.

  • Let me now put another situation to you. Forgive me if I take your example because it actually allows the point to be made. Mr Justice Eady was unsure whether, if he'd been satisfied about the underlying allegation, whether that would have been in the public interest or not. Now, what concerns me, just thinking through the points as I was reading your statement and Mr Justice Eady's judgment, was how you are going to resolve that issue. You will go along to the judge -- and for those who don't understand, these are comparatively short hearings -- and say, "My privacy's being infringed. This is what they want to say about me and it's outrageously untrue". They will come along and say, "Oh no, it isn't, it's absolutely true." Then suddenly you have to have a trial because the balance of whether you grant an injunction may depend upon whether you think the allegation of truth of falsity is the more accurate, which is the more accurate.

  • Indeed. Of course, that situation already exists, and as far as number one, prior notification, and number two, a very inexpensive if not free of charge tribunal, is perhaps a separate issue, but on the fundamental issue that you've just raised, it will always be difficult. Of course, in ordinary injunctions, again, forgive me, in ordinary injunctions is the American Cyanamid test, which is a balance of convenience, but they deliberately -- from lobbying from the press -- made the standard higher in privacy.

    But I think those very difficult questions are exactly what judges are for and what they do, and what's dangerous is to allow the editor of a tabloid to weigh this up, when really all he wants to do is sell newspapers.

    In the particular case you've mentioned, I think probably what Mr Justice Eady would have done is said that he could see no public interest in this. He did actually say that in his judgment --

  • Yes, maybe I have to change your facts a little bit, but I want to get to a situation where there is a real argument about public interest, which requires a proper investigation.

  • My submission there would be that then the judge should lean slightly against, if I may put it like that, article 12(3) -- section 12(3), because it's a little bit like the situation where I have a tree at the bottom of my garden and Mr Jay says he's entitled to cut it down. The court will normally say, "You may well be right, Mr Jay, but once you've cut it down, you can't put it up again so we'll leave it there pending trial". I think what the judge could do in a difficult case is say, "This is a difficult case, it needs a trial, I'm going to grant the injunction, but I'm going to give an expedited trial."

  • Mr Jay might pursue this.

  • There will be submissions of law on it but I think it's fair to say Mr Mosley, in your case, the combined effect of paragraphs 22 and 36 of Mr Justice Eady's judgment of 9 April 2008 is that if it weren't for the dam bursting point, you would have got your injunction. That's certainly my reading of it, you don't have to comment whether you agree or not.

  • I'm giving you that assurance. The wider point, what happens in a case where the public interest is more debatable, that can be dealt with by legal submission in due course.

    I would like, however, to dwell just very briefly on the reasons that the European Court of Human Rights, the Fourth Chamber, gave for rejecting your prior notification argument. In this very fat bundle I'm going to go straight to the discussion or conclusion of the European Court. It's page 410 on the small numbering. This document, of course, is in the public domain. I'm not going to ask for it to be put up.

  • For those who don't understand, in relation to prior notification, you took a case to the European Court of Human Rights and it went to the Grand Chamber, all the way along the line.

  • It went, sir, to one of the small chambers and then we tried to go to the Grand Chamber --

  • It was the fourth division.

  • I am going to summarise this as succinctly as I can without, I hope, losing the nuance. At paragraph 120, they said that the general rule is that damages after the event will satisfy Article 8. Do you follow me? And then they considered at paragraph 121 whether, notwithstanding that, there were good reasons for requiring pre-notification as an adjunct to Article 8.

    They addressed that on two levels, Mr Mosley. First of all, paragraph 122, the traditional margin of appreciation arguments, which mean in essence, well, the European Court leaves it to the domestic court, a wide margin of discretion as to how to organise its procedures.

    But then there is an interesting section of the judgment which I do draw to your attention, because it arguably contains a solecism which has been perpetrated by others. Page 412 at the bottom, paragraph 126:

    "However, the court is persuaded that concerns regarding the effectiveness of a pre-notification duty and practice are not unjustified. Two considerations arise. First, it's generally accepted that any pre-notification obligation would require some form of public interest exception, thus a newspaper could opt not to notify a subject if it believed that it could subsequently defend its decision on the basis of the public interest. The court considers that in order to prevent a serious chilling effect on freedom of expression, a reasonable belief that there was a public interest at stake would have to be sufficient to justify non-notification, even if it was subsequently held that no such public interest arose."

    May I respectfully suggest, not to you but to those who wrote it, that it's arguable, at least, that two matters have been conflated. First, there is the public interest in not notifying you, because you might be a criminal, you might destroy evidence or whatever, and then there is the public interest in justifying the publication in due course. What arguably the court have done here is to use arguments which pertain to the second consideration to the first, and they therefore have entered into error, the same error which you would say, perhaps, infiltrates the reasoning of the Select Committee when they come to address the self-same issue. Is that a fair summary of your position?

  • That's a precise summary. I think that the issue that matters is: is there a prior notification argument in relation to the notification itself?

  • When it gets to the subject matter, the judge will look at that.

  • The other point which they make strikes me, with great respect, again as a thunderingly bad or surprising point. They say if there were an injunction, the newspaper might break it because they would be happy to pay the punitive fine, which seems to me to involve a bit of a misunderstanding about what the rule of law entails. If you got your injunction, you would be in contempt of court to break it and it would be unthinkable that a newspaper would ever take that risk. So that may be the complete answer to the European Court's second point, or it may not.

  • I think that's a very strange reasoning. Apart from anything else, if the fine is big enough, they won't ignore it. It might be an argument for upping the fine but it will never be an argument for saying it was okay to breach somebody's privacy.

  • Well, whatever, one respects the judgment, it is the law coming out of Europe. The Grand Chamber were invited by you to reconsider this and they have not granted you the privilege to do so. The matter rests now with this decision.

  • That doesn't mean, of course, you would say, that domestic law could not move further than European law and provide you the protections which you say should apply, namely prior notification, because it's certainly within the gift of Parliament to provide for that if so advised?

  • Indeed. The only reason that I went to Strasbourg was that I thought there was no chance of convincing a UK government to bring in the necessary legislation, because, to put it bluntly, they were completely in the thrall of Mr Murdoch and other big newspaper people who would have objected. That spell has now been broken, I think fairly conclusively, and I don't see any reason why such a law should not be brought in.

    The case for prior notification, to my way of thinking, is unanswerable. I think it's just so absolutely clear that you need it and it's the right way to do it. The only outstanding issue is how you would arrange your tribunal that could do this without it being ruinously costly, but that's the only issue. That you need prior notification, that you need an independent person to decide in a difficult case whether it be published or not seems to me unanswerable.

  • Thank you. Towards the end of your statement, you deal with the wider picture and your views about press regulation, and we're going to come to that, but there are some specific points I would like to raise with you.

    The first point in relation to Mr Dacre, you are well aware that he has stated publicly that Mr Justice Eady's decision is incorrect. I think he referred in a lecture in 2008 to the subjective and relativistic view of Mr Justice Eady, and then in evidence to the Select Committee, which we have available, he expressed a similar view.

    I don't interpret your evidence as saying other than that he's quite entitled to express that opinion?

  • Yes, I think that's fair.

  • In a nutshell what he may be saying -- of course he will say it much better than me and I should not be understood as paraphrasing him -- is to say, "Look, this is immoral conduct, many people would judge it thus; surely, therefore, there is a right as part of the newspaper's right of fair comment under Article 10 or whatever for these matters to come to light because of the nature of the subject matter". I have expressed in a way I'm sure Mr Dacre would not, but the general sentiment I've sought to get across. May I have your comment on it, please?

  • The thing is that what Dacre said I think in his speech to the Society of Editors and in an editorial, he said that I was guilty of unimaginable depravity. Well, first of all, it reflects badly on his imagination, but apart from that, it's not a sensible comment because I wouldn't -- I have no idea what Mr Dacre's sex life is. All I know is that he has this sort of preoccupation with schoolboy smut in his website, with Ms X in her bikini, Ms Y showing off her suntan, et cetera. So he may have some sort of strange sex life, but the point is it's not up to me to go into his bedroom, film him and then write about it. It's his business. And equally, if somebody has a slightly unusual sex life, exactly the same thing applies.

    I think the law is very clear, and I think it's quite right, that if it's private, it's adult and it's consensual, then it concerns nobody else. The moment you go into the area where you say, "I don't really like what that person's doing", lots of people do things I don't like, it's not up to me to tell them not to. All I can object to, I can say please don't do it in front of me, please make sure everybody consents, and that's an end of the matter.

    I think I said this before, I'm sorry to repeat myself, it's a completely old-fashioned idea. It dates from the days when, for example, I was young, where it was illegal to be gay, and all sorts of sexual activities which some people find quite normal, I might not, but some do, were actually criminal offences, even between a man and a woman, and all that's been changed. The world has moved on. The only person who hasn't moved on is Mr Dacre.

  • What he said to the Select Committee, and this is on 23 April 2009, he said this:

    "With the greatest respect to you [by which he means the committee], I think a lot of us were very surprised at the soft time you gave him [the 'him' in that sentence is you, Mr Mosley]. For Max Mosley to present him as a knight in shining armour proclaiming sanctimoniousness and aggrieved self-righteousness in his crusade to clean up the press is an almost surreal conversion of the moral values of normal civilised society. Indeed for Mr Mosley to crusade against the media is a bit like being the Yorkshire Ripper campaigning against men who batter women."

  • It's really quite sad, actually, that he should say things like that to the committee, because what he's really saying is he doesn't like or didn't like something that I did sexually, in private, with consenting adults, and that that -- the fact that he didn't like it should prevent me from saying the press should not invade people's privacy. It's an absolutely ludicrous argument. It's a very sad thing for Mr Dacre that every time I get invited to a university to debate, I'll say I'll come to the other end of England if you can get Dacre on the other side. No chance.

  • He crystallised his point a little bit later on:

    "My main objection was the way he exploited and humiliated and degraded women in this way. Paid women, yes."

  • It just shows again he's completely naive obviously about sex. That's not a criticism, but it's a fact. The women in my -- my little party, I like to call it, they are total complete enthusiasts for what they do. They love what they do. They're more into it than I've ever been. The idea that you're exploiting them is ludicrously naive and in fact offensive to them. They all do these sort of things in their private lives, with their partners. That's how they are. Mr Dacre may not approve of it, but the fact is we live in a civilised society where grown-ups in private should be allowed to do what they please. It's not up to him to decide who can do what between consenting adults.

  • Two further points, so the position is clear. First of all, Mr Dacre's evidence to the Select Committee is categorical to this extent, that the article that the News of the World published was certainly not an article that the Daily Mail would publish, because of its nature, for reasons of good taste. You probably recall that part of his evidence, do you?

  • The thing is that he's in the position -- he's like the crocodile's killed the animal and then the hyenas come along and scavenge and he's the scavenger.

  • The second matter, which I'm sure you accept as well, is that Mr Dacre's agenda is that (a) this is a matter of his human rights which he is entitled to pursue, and it's certainly not part of his objective, he would say, in any way to undermine Mr Justice Eady. What he is doing is exercising his democratic rights. Would you accept that much?

  • I can't really accept that because what he said was that this is an amoral judgment, I think those were the words, from an amoral man. Well it isn't. It's a judgment that recognises that consenting adults are allowed to do by the law of this country what they wish in private. He may criticise the law, that's absolutely possible. What he should not do is criticise a judge for imposing the law or applying the law.

    What's deeply hypocritical about the thing is that if this were not the law, they could appeal -- we've had this point before -- and they did not appeal. He should recognise that the reason that News International did not appeal was not because they agreed with the judgment, it was because they knew they would lose. So what he's doing is he's attacking the man, the judge, he's playing the man rather than the ball. The ball is the law. If he doesn't like the law, he could campaign to change it. Meanwhile, all the judge can do is apply it, and this Mr Justice Eady did.

  • I think I've taken that point as far as I need to. Can I look at the wider picture through your evidence and this is the part of your witness statement which starts at paragraph 100. First of all, you deal with the PCC. What you say about the PCC is perhaps not unfamiliar to this Inquiry, because it chimes with other evidence or other opinion which the Inquiry has received. You make the various points there's no power to sanction, Northern & Shell have opted out, PCC wouldn't, couldn't or didn't prevent the most scandalous abuses you refer to, and you name them.

    You mention some positive aspects in paragraphs 105, 106. For reasons of balance, could you tell us a little bit about those matters perhaps so far as they bear on you?

  • Absolutely. The Press Complaints Commission in my case were helpful when it came to trying to stop press harassment or harassment after the death of my son. They did co-operate there. And I believe, but I have no personal experience, that they've had some success in preventing the publication of stories which shouldn't be published. I think that people who know a story is coming out can call them up, and I think they've done, I believe, a lot in that way quite successfully, but that brings us back to the fundamental point that if you don't know the story's coming out, you can't ring the PCC for help. That's why prior notification, once again, is vital.

  • Thank you. Then you make the "no teeth" point which others of course have made and the conflict of interest point which again others have made, but I would ask you, please, to develop your point about a suggested alternative to the PCC. I know you've touched on this a little bit but could you in your own words help the Inquiry with the contours of your suggested alternative?

  • It's a subject which I could talk about for hours, but briefly, I think a tribunal or body of some kind is needed, and the basic principle of the PCC that it is free I think is right. That it is paid for by the press I think is right. But I would give the new body -- I would make it slightly different, that I would first of all divide it into two sections, one which would make the rules and the other which would enforce them, and the rule-making, I think, doesn't need a great deal of work. There are certain things like prior notification, but fundamentally the rules are not that bad.

    But what is needed is a body that can enforce them, so a body that would have the power to order a story not to come out, if it were justified under the law as it stands, would have the power to find -- would have various powers effectively rather like a judge would have, and I would add to that the power to stop the press harassing somebody, not ask them as the PCC does, but tell them. Those points could be worked out and I would be very, very happy to submit to the Inquiry a detailed proposal of that.

    But fundamentally, you should be able to go very simply and say, "I think my privacy's about to be invaded", and I would add to that even defamatory statements. I know about the rule in Bonnard v Perryman, obviously, but I think there is a case for trying to mediate these things at the beginning. I think if somebody went with their complaint, either defamation or breach of privacy, and the other side were made to turn up as well and you have a mediator sitting there, a large proportion of these things would disappear before they even started.

    Most cases are quite simple. You would have to have some mechanism for the complicated cases to go to the High Court and you would have to have some mechanism for paying for them, but there are various ways in which that could be approached. But the overwhelming majority of cases could be dealt with simply with a single adjudicator, the two parties sitting there, the issue explained briefly, no big expensive lawyers, pleadings and all the rest of it. Most of these issues are really quite simple. It's just that the capacity, with the greatest respect to the legal profession, the capacity for the legal profession to make things complicated, of course, is great, and that's very expensive.

  • Thank you, Mr Mosley. Journalistic practices now, paragraph 120. This is to some extent, if I can be forgiven for saying so, a commentary on evidence which the Inquiry has received and will receive in due course, particularly when it comes to Operation Motorman, do you understand --

  • -- we're dealing with in a lot of detail next week and the Inquiry will be able to reach its own conclusions about that.

    But you do make one point in the context of blackmail, paragraph 124. I'm sure you'd like to bring this point out, that after Mr Justice Eady delivered judgment on 24 July 2008, with his criticisms of Mr Thurlbeck, you wrote to Mr Rupert Murdoch in New York drawing your concerns to his attention. Did you receive a reply to that letter?

  • No, I didn't. That letter was written on 10 March this year and I sent it by recorded delivery and I have evidence from the United States postal service that it was delivered.

    I also sent two emails, and I was astonished, because all I was asking him to do was to order an inquiry in his Wapping 1 per cent into this, but got no reply. I have to say that I cannot imagine writing to a proper international company a letter alleging serious criminal conduct by a senior employee and getting no reply.

    I'm sorry to say this, but I think I will, if I may. That to me is the conduct of the Mafia. It's what you would expect if you wrote to the head of a Mafia family complaining about one of their soldiers. You would probably get no reply. Equally, if one of their soldiers went to prison, as Mr Rees did, and was promptly reemployed when he came out after serving a sentence for a very serious offence, again you would expect that from the Mafia, you would not expect it from a serious company like News International down in Wapping.

  • Well, Mr Mosley, doubtless your legal team will remind me in due course, it may be a few months' time, to get the reply which you've been seeking, because it may be possible to do that.

  • I hope you don't mind that I leave off Operation Motorman.

  • No, it's just my opinion.

  • Thank you. The Internet is a big issue. You have touched on it. Is there anything else, because of course it's of great concern to this Inquiry, any practical solutions, any ideas you'd wish to share with us to deal with the proliferation of information literally at the speed of light globally?

  • I think this is something that will probably require certainly national laws, but it would probably better require European laws and in the end an international convention.

    But what I think can be done at quite an early stage is to -- could be done would be to require the service providers and also the search engines not to proliferate information which is illegal or wrong in some way. I think the technology for that exists. Again, if it would be helpful, I'm very happy to put together a detailed proposal to submit to the Inquiry.

  • That's actually the second time you've offered to do something, Mr Mosley, and speaking for myself, it's very tempting to take you up on the offer, but I'm not doing that generally because I think it potentially imposes an undue burden on somebody when at the end of the day I've not reached a conclusion as to what might work.

    But I might make an exception in your case for this reason, depending on what you say about this. You have experience of international governance in motor racing, so I don't know whether or not that gives you any additional understanding of the potential pitfalls to be faced either in trying to do something nationally, let alone internationally. So if you want to submit anything to the Inquiry, then you can rest assured it will be considered, but you will equally understand that I am making absolutely no promises.

  • I mean, what I submit, sir, may well turn out to be inadequate or no good for all sorts of reasons, but we have given it a great deal of thought and it would be -- well, one can submit, and then it will be for the Inquiry to decide whether it wants to adopt any or part of it.

  • Yes, as long as -- the basis upon which you're doing this, and I'm conscious this takes your time and is an effort, as long as the basis upon which you're doing it is well understood.

  • I'm very happy to do that, sir.

  • Final point, Mr Mosley. The whole of your statement has I think already gone online. Therefore people may already be reading or have read paragraph 131, which touches on the Daily Mail. You say, and of course you're entitled to your opinion, in the context of Operation Motorman, you say in the middle of that paragraph:

    "It is inconceivable that the Daily Mail and other newspapers did not know that they were procuring and encouraging criminal acts."

    May I make this clear on behalf of the Daily Mail, that that is strongly denied by them and they will say when they have the opportunity to do that that the Information Commissioner's office in September 2011 stated that there was no evidence that any journalist had asked Mr Whittamore to obtain information illegally.

    I'd like to leave the point there only for this reason. One, so that the Daily Mail's position is clearly set out through me, but secondly to make it clear that the rights and wrongs of the issue are being investigated by the Inquiry, so let's wait and see what happens next week. Are you content with that?

  • May I say a word on that? I would just like to say that of course they would say that. I'd hope they won't consider this a mendacious smear. All I'm saying is the fact that no journalist asked for an illegal act is not the same as saying that no journalist would have realised that the information they were getting had to be illegally obtained. But that's a matter for the Inquiry.

  • You're reaching your conclusions based upon your study of "What price privacy"?

  • I'll be doing that as well.

  • I think a very long day is in store next Thursday when these issues are going to be investigated.

    Mr Mosley, the Inquiry is extremely grateful to you. Have we covered all the ground you wished to?

  • I think so. Some of it twice, sir.

  • If that's the case, that would be my fault. But thank you very much, Mr Mosley.

  • Thank you.

    It's probably sensible just to have five minutes for the shorthand writer and for all of us, but I repeat, five minutes actually means five minutes, or perhaps in this case seven minutes, but not longer. Thank you.

  • (A short break)

  • The next witness is Joanne Kathleen Rowling, please.