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

  • Find yourself somewhere to sit, Mr Sherborne.

  • I apologise, my Lord.

  • That's all right. It's an irritating habit but 10.30 normally means 10.30.

  • I've been in another court unfortunately.

  • That's tough, but the perils of success.

    Thank you all for coming. We're not, I think, going to be able to do quite as much today as I would have wanted to do, and I'm not being critical of anybody in that regard, but there are issues which touch upon the material that will be deployed by the inquiry, which certainly create concerns, and understandable concerns within the Met Police and the Crown Prosecution Service and which therefore need resolution.

    But let's see how far we can get dealing with the issues that we want to raise and get some of the nuts and bolts out of the way.

    Right, Mr Jay, take us through where we are.

  • As you know, I've provided a note which has been circulated and has generated responses from all the core participants.

    Some of the core participants, as you know, are here today, some are not. Sir, the first issue is the start date. The note put forward two competing dates, 7 and 14 November, and human nature being as it is, everybody has plumped for 14 November.

  • Yes, except for me. That was the problem, wasn't it? I was keen to get going as quickly as possible and everybody else is causing me to exercise caution.

  • Yes. Ultimately, sir, obviously it's a matter for you.

  • Yes, yes, I have more votes than everybody else put together.

  • Yes, indeed, the ace of spades, but no doubt the core participants will continue to press for 14 November, which if you were to accede to that, would mean that written submissions would be lodged on the 9th.

  • Yes, well, I have read everything that everybody has said, and I recognise the points made. My concern throughout has been the general timeframe within which this inquiry has to operate to produce a solution, if a solution there is, to be debated by those who will debate it.

  • And to be acted upon expeditiously, so that's the end of the line, and my concern has been and remains that every time we push back the start, the risk is that we either push back or concertina very important debates that we're going to have to have during the course of the next few months.

    But I accede to the overwhelming submission that everybody has made, that the 7th is just a little bit too early.

  • Sir, may we look then at the first week of the inquiry and then subsequent weeks.

  • The first week of the inquiry will be occupied by oral opening submissions. It is conventional that counsel to the inquiry go first, and I propose, subject to your view, to open the case neutrally -- I say the case, the inquiry -- over the course of about two and a half to three hours. I will not be providing a written opening.

    Then it needs to be decided who will go next and how long each core participant would like in oral submissions, indeed how long you give them in oral submissions.

  • They may not be the same thing.

  • Sir, that's fully understood.

    It is anticipated that the first week will be over in about three days. We will hear oral submissions, and you may be asked to make rulings on issues which have arisen, if such issues arise over the next two or three weeks. It may be convenient to have half a day to tie everything up before the evidence starts the following week, 21 November.

    The week beginning 21 November will be a four-day week. We will hear evidence from 18 individuals, who are core participant victims and whose witness statements will be provided as soon as possible.

  • By "victim", we mean those who are either admitted to have been the subject of either illegal or --

  • -- potentially unethical behaviour or who contend that they have been so subject.

  • Yes.

    Sir, the agenda for the succeeding weeks of the inquiry will be made much clearer on about next Monday when we will provide to the core participants a provisional list of witnesses and batting order. It may be convenient to provide those week by week, so that witnesses will know in which week they'll be intended to be called. It may not be possible at this distance to identify the particular day.

  • Our current view, but it's evidently a movable feast, is that we will conclude the evidence in module 1 at some stage in earlyish February, but obviously when that jumbo jet lands has to be slightly uncertain at this distance.

    At the moment, we have about 130 witnesses whom we intend to call but some of those witnesses will no doubt either be read or treated as read.

    We'll obviously have regard, in deciding in the end whether to call or to read witnesses, to the time available, because that is not the overriding consideration, but it's going to be a highly relevant consideration.

    The general plan, if I can set it out --

  • In that regard, Mr Jay, presumably you will be circulating the broad list as well as the more definitive week-by-week list.

  • So that core participants can identify, to such extent as it's appropriate, witnesses from whom they believe the inquiry should hear in person, as opposed to those whose evidence which they will then have read --

  • -- which can be simply put into the system.

  • Sir, absolutely. As the protocol or the note I prepared on 4 October indicated, the core participants will always be given the opportunity to make submissions to you that a witness whom we think might be read should in fact be called.

  • Yes. But everybody has got to have to regard to the timeframe as well.

  • Sir, the issue then of sitting days: the view at the moment, having regard to the range of competing considerations, is that we will sit seven days in each ten working-day period, so some weeks will be three-day weeks, some weeks will be four-day weeks.

  • Yes. There may be occasional days that aren't Fridays that I won't be able to sit, because of other public duties.

  • But I hope to keep that very much to a minimum.

  • So those are the reasonably straightforward areas. Perhaps a less straightforward area is what I have called in the notes the interface between the inquiry and the ongoing police investigation.

  • -- in a moment. Let's deal with the mechanics first, and discuss openings and the approach which you've identified in relation to witnesses, but before we do that, what's the position in relation to the web-based evidence availability?

  • Yes. Well, as far as I'm aware, but I may need to take more detailed instructions about this, I know that documents are being uploaded on to the system daily and certainly as regards the inquiry team, 1,021 documents were uploaded as of this morning. I know that because I have read most of them now.

    It's also clear from the system that about 150 of those documents have been released to the core participants.

  • Exactly how long it will take to cause necessary redactions to take place so that documents can properly be released to the core participants, I cannot say with precision, but what I can say is it's being done as fast as it possibly can.

  • Yes. I think that -- I don't know whether there are any of the statements yet from those for whom Mr Sherborne appears, but they obviously will need to be in good time so that everybody can see them --

  • -- before the witnesses give evidence.

  • All right. Well, let's see what everybody has to say about that.

    If I establish a batting order which is not necessarily intended to be final, I hope everybody will understand.

    Mr Sherborne, thank you for your written submissions. You having joined the 14 November camp --

  • -- that's not a topic upon which you need to address me.

    I make it clear that I am very content to receive submissions in writing as substantial as anybody wishes to make them, and the submissions can be uploaded on to the Internet, so that anybody else can read them and that it isn't thought there's some private communication system. The purpose of an oral opening is really, as it were, to set the stall out a little bit more but not necessarily in the detail that would be in writing. On the basis that you've heard that Mr Jay thinks of two to three hours, my own initial view, and I'm talking to you because -- but everybody is here -- is that -- there are a large number of media representatives present. I would hope, perhaps with one exception, which I shall come to, if it's made the subject of an application, they could open the case within about an hour.

    I am prepared to say that your brief may require a little bit more because you'll be covering the territory in a slightly different way.

  • But have you given thought to the length of time that you would want an opening to be?

  • My Lord, yes, I have. Obviously at this stage, it's a provisional view, but I hope it's one which finds approval. I was going to suggest 90 minutes.

  • I think that's entirely appropriate, and carries with it the balance that I'd been hoping to identify. I'm just conscious of what we've got to fit in within the period that's available, and we must also have regard to those who write it all down.

  • Yes, your Lordship is right to anticipate, as I think I say in my note, that will we be providing written submissions, but they will form to a large extent a slightly different purpose. The purpose of the oral submissions will be, as your Lordship says, to set the stall, to set the scene, I should say, for the core participant victims who are giving evidence; as well as more generally, the claimant position if I can put it that way, in relation to the issues your Lordship has to address.

  • I am entirely comfortable with that.

    Are we on course to ensure that those for whom you appear who are going to give oral evidence will have disclosed their evidence in sufficient time for us to read it, and for us to make it available to those who may be interested in it?

  • Sir, given the start date of 14 November, we are on course, yes.

  • That course is aiming at what date?

  • As I understand it, we are going to provide the witness statements on a rolling basis, as far as that's possible.

  • In other words, as and when they're available.

  • As and when they're available, so I won't outline in court, given that there are a number of people who want to speak, the process that that involves. You'll have seen from my note, it's not an easy process.

  • No, I don't for a moment suggest it is, but we all have to cope with the difficulties of life. What we do need to do is make sure we've got on with it.

  • Sir, absolutely, and I hope that the impression that's been received is that we are getting on with it.

  • Sir, we do hope to have them ready in good time, as I say, for 14 November, and certainly we'll provide those statements that are ready in advance of that as quickly as we can, and that's what we're doing.

  • I think you meant the end of October.

  • I am talking about in good time for 14 November. In terms of the date by which they're all delivered, it is hoped that it will be by the end of this month.

  • But certainly we will deliver, as I understand it, a sizeable number of them by the end of this month. If there are some others that may take a few days more, that's what I envisage is the worst case scenario.

  • It's becoming a moving feast, Mr Sherborne. I think you're about to get some instructions.

  • Can I turn then, just to receive them?

    Mr Crossley says that we do hope to have more by the end of next week. What I didn't want to do is to raise expectations only for them to be, as I say --

  • You can raise expectations and then meet them.

  • We certainly intend to do that. If there are one or two other statements that come after that, I hope it will be understood that it isn't through the want of us trying to provide them to the inquiry as quickly as we can.

  • I understand, and if I am pressing, it's not because I don't recognise the problems; it's because pressing is what I am going to do from first to last.

  • Sir, I understand that. I'm sure it doesn't just apply to the core participants.

  • Sir, you'll appreciate, can I just tell you that currently, as it stands, we anticipate providing 19 or 20 witness statements.

  • Right. Thank you. Yes. Do you have any representations to make as to sitting times, days, and timetable?

  • Sir, I don't, unless you wish me to address any particular matters? You have our submissions in the note or observations.

  • Yes, I think the problems you identify in paragraph 12 of your note --

  • Sir, yes, it's the -- you'll appreciate that there is a civil trial which starts on 29 January.

  • I understand, and I recognise how real these problems are, but I'm afraid they're your problems. I can't stop and you're not suggesting I do.

  • But I can't stop while the civil litigation goes on, but I've no doubt that you will be able to be kept informed of precisely what we're doing then, and if we've -- if we can organise things in a way that least inconveniences you, then we shall do so.

  • Sir, I am grateful. It may be nearer the time that obviously matters will be somewhat clearer in terms of timetabling.

  • That's why at this stage I'm not asking you, sir, to make any ruling.

  • No, I'm just -- you fired a warning shot over my bow and I am returning fire.

  • I am very grateful for the return of fire.

  • Sir, is there anything I can assist you further on?

  • No, I think that's sufficient for the moment. We'll come to the other matters which are going to be more contentious in a moment. Thank you.

    Mr Garnham, simply on timing, do you have any submissions to make?

  • No, none at all on the matters Mr Jay addressed you on, sir. As to opening statements, we would certainly be less than the hour you indicated; we would think half an hour is sufficient for us.

  • That's fine. Less is always more in these circumstances, but I am just really trying to provide a parameter for everybody to work with. All right. Thank you.

    Right. Again -- I was about to say in no particular order but of course it's a particular order, Mr Davies.

  • Thank you, sir. I have very little to say on what's been discussed so far. So far as Mr Sherborne's clients are concerned, just to be precise, can I take it that we will expect the statements from his clients who are giving the evidence by 4 o'clock on Friday, 4 November, I think is the point --

  • I have no doubt about that. He is hoping to be the end --

  • That is the end of next week.

  • That is the end of the next week. That's what he hopes. That's what he hopes.

    And I hope so too.

  • All he said is that if there's one or two that are missing, we'll have to cope with it and we will see.

  • We'll be able to schedule the witnesses a little bit in any event. I've no doubt at all that you'll have ample opportunity to read them and to take instructions upon them, and then to feed into counsel any issues that you want raised, which I think is quite an important part of this exercise, particularly in connection with those witness statements.

  • Yes. It is, but we're conscious that that is a time-consuming exercise, because if one is feeding questions to someone else to ask, you have to be very precise about what the question is, and where the references are and why it would be a good idea to ask it.

  • I understand, but I'm sure that you will equally understand why, in the context of this inquiry, that approach for those witnesses is particularly important.

  • And Mr Sherborne hears it, Mr Crossley hears it. I am very keen to keep it within the bounds of what is appropriate, and we'll see how we get on.

  • Yes. I just wanted to be clear what the target date was, and I think we are clear: it is 4 November, if at all possible.

  • Or earlier if possible.

  • -- I think it was, wasn't it, Mr Sherborne?

  • Can I just explain, I don't know whether Mr Jay is going to stand up before me, but the date I provide is the date that we supply the witness statements to the inquiry. Once we've done that, then the mechanics is really with the inquiry. That's why Mr Jay may stand up, to deal with the timing of when they're provided to all the other core participants.

  • I would hope the inquiry won't take long to join that up. You originally said the end of October.

  • Sir, I did. I just wanted to be clear that the mechanics is that we provide them to the inquiry by that date. I have no control over that.

  • No, you have no control once you've handed them over, and nobody will suggest that you do.

    But your original target was the end of October.

  • It is, sir, and it remains the target.

  • And still is, and therefore the extra days to which Mr Davies refers allow the leeway that you're just a bit concerned about, and equally time for us. I'll ask Mr Jay to deal with that point.

    Mr Jay, it is not going to take us long, is it?

  • No, we will prioritise putting these statements on to the system. Any section 19 issues, if they arise, will have to be dealt with very speedily indeed.

  • Yes, but presumably things like addresses can be provided on a separate sheet of paper and not put in the statement at all, and in that way, I would anticipate that there's going to be very little by way of necessary redaction, and I would have thought that actually the point of the statements is that they should not be redacted. It's providing material. But obviously personal details which would normally go in a statement, I would be perfectly content was put on a separate schedule which then needn't be provided, just to stop somebody having to -- but if it's -- whatever way is convenient for you and Mr Sherborne, to maximise the time that everybody else has to look at these statements, because they are the first statements, aren't they? Right.

  • Other points very briefly, sir. Oral opening, we do envisage making an oral opening; I was thinking not more than an hour and a half and very probably less.

  • I thought that if you had identified the exception that was in my mind, it was you. So I recognise the dynamic of what's going on. I'm not encouraging people to take that length of time. They'll take however little time they need, but I am going to say I don't really want it to exceed that, given the number of people who have to talk.

  • Yes, well, on current thinking, that will be enough.

  • We will also be making a written opening, and we will try and get that in by, I think it will be the 9th now. The only other points I wanted to mention was newsroom visits, which Mr Jay raised in his note. We have no objection to you visiting a newsroom and if you would like to visit one of ours, that is The Times, The Sunday Times or The Sun, then we would be happy to arrange that, but we have no strong views.

  • We will come back to that. The reason I put it in the note is that I received a couple of invitations, and I felt it right, first of all, to share it with everybody and to identify what I would do, but secondly then to list -- we'll come back to it.

  • Right. Well, Mr Dingemans, you're next.

  • Sir, just on timings of disclosure of documents to us, as I understand it, we're going to get the provisional timetable of witnesses on 31 October, but we haven't yet got a date when we're going to be given access to the documents. Obviously that's on the critical path for producing any short written submissions.

  • I understand that. Does that mean that you haven't yet had access to any documents?

  • My learned friend, I know has put in statements, as have I. I have not seen any of his and he won't have seen any of mine.

  • That's as may be, but I don't yet know whether the core participants have had access to anything on the system.

  • No. We've no access to the system. My learned friend said we'd got 150 documents, but I anticipate they're the sort of preliminary notes, et cetera, and other documents that have been exchanged.

  • But there's no other access and in my submission, that is very much on the critical path to producing what we hope will be useful submissions.

  • All right. Well, I agree with that, although by definition not everything will be uploaded all at once. I mean, the submissions -- the opening, really I would have thought that most of the core participants will have pretty strong views as to the direction that they think I should be taking. Nobody's being shy about making those views clear to date on specific topics, and therefore I anticipate that people will have views generically.

    I am not suggesting that the opening submissions will deal with the evidence that I am about to hear; that would be quite unrealistic. It's really to set out your submissions on a global basis, as to how I should be approaching my task and potentially where I should be going.

    I've no problem about people saying where they think I should broadly be going, provided there isn't a sort of carrot and a stick involved, because I have made it very clear to those to whom I have spoken at seminars or otherwise, that the whole problem is an industry-wide problem, which has to be solved in a way that works not merely for the industry or profession, whatever word you want to call it, but also for everybody else.

    The one thing I do not want to do is to produce a piece of paper or a document that everybody reads and says, "Well, that's utterly unrealistic", and puts on a shelf and allows it to gather dust.

    My fear is that if one looks at the history of investigations into these sort of areas, over the last 50 years, rather more has been put on the shelf than has been activated.

    So my ultimate aim, and if I am disclosing my hand, I don't mind, is to produce a system, whatever it be, if it's the same or different, that works and has the support of everybody.

    Now, that doesn't give the press a trump that says, "Well, we're going to say no to everything", because that also will be obvious.

    It's critical that we move forward the debate, I think.

  • My only submission really is that the chances of us being able to assist you, sir, in that process, are going to be much better if we've got access to the material sooner rather than later.

  • No, I agree with that and access to the material, we'll ask Mr Jay about that, shortly.

  • May I just, whilst dealing with access to the material, make one other point. Obviously some of the core participants such as the media are not publicly funded, but there are others who are, but in any event, to avoid wasting legal fees, whether for privately funded or publicly funded, in our submission it would be helpful if the inquiry was able simply just to identify, not necessarily a detailed description of the documents, what the document is, otherwise you have six sets of core participants reading documents that in fact they don't need to read, and the inquiry will have read those documents and you will otherwise end up with a duplication of legal effort that's simply not required.

  • That's a fair point. Let's see what we can say in response to that.

  • Those are my only two submissions.

  • There's one other submission that you have to deal with. I am conscious that the date that I've identified creates a potential problem for you.

  • Yes, I am very sorry about that.

  • I understand professional commitments are professional commitments, and I would want to do what I could to try to fit in. I can do that -- what I don't want to do is say: right, we'll do it the following week.

  • I need the whole thing to be cohesive. What I am prepared to do is on one of the days, possibly nearer the end, to sit very early or to fit in with what's happening in the Supreme Court, if I can. But that will require you to keep us informed.

  • I am very grateful. The only other possibility, and that entirely depends on your own proposals, would be whether one of the days for opening submission was on a Friday. But I'm not sure whether that's anything that is immediately attractive.

  • Well, I think that one of the suggestions was that we'd sit seven days a fortnight, and generally always have Friday off. I mean, the suggestion of always having Friday off --

  • For good reason and everyone can then plan.

  • Everybody can then plan. My concern about making an exception is that I can readily understand that there are lots of reasons for different exceptions at different times. I don't rule it out, but I would prefer you to think about whether we couldn't start on one of the days at 9 o'clock for you to make the submission, and then go to -- I won't call it Middlesex Crown Court.

  • I am very grateful, sir, and we'll try and sort that out. At the moment, all I have to say is only 20 minutes, but if I look at further material, then it may extend a wee bit more.

  • That's fine. I want to help, but I don't want to start creating hostages to fortune for me later on in the process.

  • I am very grateful.

  • Thank you very much.

    Right. Mr Glen.

  • Just in terms of start date, I don't think we have anything more to add if the 14th is settled on, and anything which is further to be said with regard to the document management system, and how that's going to operate. You've seen in our letter, we have some concerns about access to documents, but it sounds like those are in hand.

  • We'll come back to document management and we'll ask Mr Jay to elaborate upon how this is going to work.

  • Sir, the only other point we have, we have indicated that we would wish to make an oral opening statement. That's unlikely to be much more than 20 minutes.

  • That's fine. That's good.

    Right. (Pause)

    Is there any other core participant here who wants to say anything about any of this?

  • Sir, on behalf of Associated Newspapers, only to say that whether we make an opening statement or whether it's in writing or orally is a matter under consideration, but we're happy with the time limit that has been suggested -- indicated by the inquiry.

  • Yes. I mean, to some extent you're absolutely welcome to do so, but one of the interesting issues, which Associated Newspapers can think about, is the extent to which they wish to adopt what Mr Dacre said at the seminar. I don't -- I am not saying they should or they shouldn't. What I have said about the seminars is that they're part of the record of inquiry, they don't constitute evidence, and the reason I said that was because I wanted to make it clear that nobody would be cross-examined on the basis of an inconsistent statement in the inquiry, based upon what they said at the seminar, because here it's a rather more measured environment.

    But that's not to stop anybody saying, "Well, actually, what I said is what I mean to say and I am content for that to be part of the record". I'm not saying that Mr Dacre would want to do that, but I wouldn't want him to feel that he wasn't able to if he wished to. If that makes sense?

  • Yes, sir, thank you. The only other submission I make is just to simply say that we agree with the concerns expressed by Mr Davies and Mr Dingemans in relation to timetabling, but we're conscious that the submissions have been made and that you have our concerns in mind.

  • All right. Anything else?

    Right, well, Mr Jay, let's deal with document management. There are documents on the system, but then documents have to be put into a place where the core participants can get them.

  • Yes. Sir, I can assist you to this extent, that documents obviously have been coming in over the last six to eight weeks, have been uploaded on to the system as soon as possible. Some of the documents are more important, perhaps more controversial than others. I can give you an example, our preliminary view in relation to documents which have been provided by the BBC, and I must say there are a lot of them, is that most of that material is uncontroversial, but some of it we might wish to focus on and assist you with.

    Now, we have prepared internally a note which summarises that material. It's worthy of further consideration, but at the moment there's no reason why that note, either in its existing or mildly edited form, is not made available to the core participants so that they don't have to read all the BBC material; they can look at the note and then decide which parts need to be read. As I've indicated, we will then proceed to call the relevant evidence.

    Of course, we'd need to agree that process with the BBC; they might have objection to it.

    But then there's other documentation, in particular witness statements and then exhibits to witness statements, for which commercial confidence has been claimed by the originators of the statement. In each case consideration needs to be given to the exercise of power under section 19, and the application of the principles set out in the documents protocol which we finalised last time. Now, that take some time, but it involves the participation of the core participants at each stage, so that the solicitor to the inquiry knows how to proceed.

    I should indicate, some of the documents have already been redacted, and there may or may not be issue with that, but insofar as they have been redacted, one assumes that no further redactions need to take place. But some have been provided entirely unredacted. Now, we need to move forward as quickly as we can, so that the section 19 process, as foreshadowed in the protocol, is addressed and complied with.

    I can't indicate to you at this stage, but I'll discuss the matter with the solicitor over our short break, which will probably take place in about 20 minutes' time, indicate perhaps in more detail to assist you as much as we can with how long we think this going to take and in what order.

  • Yes. I appreciate that there's a lot of paddling underneath the surface.

  • Which is not merely an assimilation of the information contained within the statements and the material with which we've been provided.

  • But also putting it in a form where it can be disclosed and then disclosing it.

  • It obviously should be done on a sort of structured basis. To such extent as it is possible to provide a route map to prevent very expensive lawyers from having to spend --

  • -- time retreading over territory which actually has been trodden without problem, would be desirable. But I don't want to put extra burden on the inquiry lawyers, beyond that which is reasonable, bearing in mind all the other things they have to do.

  • Yes, well, that might create difficulties for us. Moreover, it's to some extent subjective; what we might think is relevant and whatever summary we might provide would not necessarily --

  • I don't think it is suggested that anybody should summarise a statement. I mean, I'd have to think about whether it advances matters much, because I anticipate that the statements, people will want to read. I'd be very surprised if anybody wasn't very keen to run through what all the witnesses actually say, and then they'll very quickly pick up whether or not the exhibits to those statements justify further work. If there's a particular chunk of work that you've done on the BBC, then so be it.

  • I am not suggesting there should be any summary.

  • It's sufficient to identify the name of the witness, and perhaps the occupation of the witness so that you know what to go to. I am not being dogmatic about any of it, but I do think it is probably worthwhile having a discussion, so that if the system -- if it's sensible to organise out work which we'd have to do anyway in a particular way that makes it easier for others, then we should do it. If not, then not. But I'm sure that the general cooperation which is apparent between those who are appearing for core participants will operate to make it as easy as possible.

  • Yes. Fortunately, the system has got a very powerful and effective search engine. If, for example, one wanted to find at the click of a switch all the evidence relevant to a particular newspaper, well, then the machine will sort out all that evidence for you immediately, and will list it.

    So a lot of the work can be done using the powers which are available. Of course, we have prepared various internal documents to assist us. It may or may not be possible to release those to the core participants. It probably will be.

  • You'll have to decide that on a case-by-case basis, but one thing which is important is that all those who are involved in this should be appropriately assisted on learning how to use the system that we've got in operation.

  • I know that one of the solicitors to the core participants has used it on a different inquiry and was helpful, and we'll just need to make sure that everybody is appropriately trained.

  • I am sure that's taken place. Indeed, I know it has taken place.

    It's largely an intuitive system, but people's intuitions vary when it comes to this sort of technology, but the search engines are, I've found, very easy to use, and can be used either in a general way to sort documents out, according to theme, according to individual or according to newspaper, or can be used more precisely. If one keys in a particular name, for example, an alleged victim, well, then, that would throw up all references to that individual throughout the whole of the database.

  • I am sure that the technologically capable Bar and solicitors' profession is more than able to use equipment that a young relative of mine would also be able to use, but with which I would struggle. All right.

  • I will come back to the section 19 redaction process, if I may, shortly after 11.45.

  • Our break. Is it appropriate, sir, now to move on to the issue of the interface between the inquiry and the police prosecution?

  • I say "police prosecution"; there aren't any proceedings afoot.

  • Yes, individuals have been arrested as you know. All of this is in the public domain and the investigation continues. What has been provided --

  • Of course, the proceedings are active within the meaning of the contempt of court legislation.

  • In relation to those persons who have been arrested.

  • That's right. My understanding of schedule 1, the relevant date is the date of arrest.

  • Then the strict liability rule applies and everybody will understand what that means.

  • Everybody in this room should understand what it means.

  • Yes. If they don't understand, I would recommend that they look PDQ as to what the Contempt of Court Act says. We haven't, as it were, reached that point, because we are still discussing how the inquiry might proceed, and as you know, joint submissions have been provided to you this morning, and furnished to the core participants and then will be made publicly available, on behalf of the CPS and the Metropolitan Police Service.

  • Yes. Well, it's not fair to anybody to ask them to deal with this on the hoof --

  • -- I don't think, although I'll listen to anything that anybody wants to say on the topic.

    I say immediately that it is entirely understandable that the investigation, focusing purely on the investigation, should want to minimise to the point of extinction the slightest risk and the way to do that is to effectively shut it all down. The problem that I have, and this is going to be the subject of -- going to have to be the subject of argument, is balancing the absolute requirement that anybody who is ultimately charged should be able to receive a fair trial, against the competing dynamic that I have to resolve the issues that I have to resolve probably well before any trial, if there is to be one, would ever take place; and I have to do it in a way that satisfies the public that I've not just walked past the problem. That's my concern.

  • Yes, and part 1 of inquiry requires you, as we all know, to investigate the culture, practices and ethics of the press. And culture and practices are concerned with systems and with quantity of activity.

  • System -- that comes within systems.

  • Yes. So one cannot ignore that, nor can they ignore the fact that you have been set up under statutory powers, and provided that those statutory powers are exercised fairly, there's an overriding duty to act fairly under section 17 of the Inquiries Act; and provided that you keep within your terms of reference, and provided that you respect all privileges which witnesses might claim under section 22 of the Act -- it may be that this would have to be the subject of further argument -- the risk of an eventual abuse of process argument ever succeeding would be extremely low.

    But these are all preliminary thoughts that need to be dwelt upon at greater leisure. The police and the Director of Public Prosecutions will need to give -- have the opportunity to -- may develop submissions on those points and the other core participants may have matters to draw to your attention.

  • We're going to have to get into at least two areas of law, it seems to me. The first is we're going to have to get into the area of law that surrounds abuse of process.

  • The area of law that surrounds fair reporting and contempt.

  • Also, it would be foolish not to identify the need to look at the extent to which Parliament sets out subjudice rules.

  • In relation to its own proceedings.

  • In relation to its own procedure, because it would be foolish not to recognise the risk that what is discussed here might be discussed in another place.

  • Yes. Perhaps the fourth item would be the content and scope of the privilege against self-incrimination --

  • -- which in fact can be dealt with succinctly.

  • And its effect.

  • Now, that's a distinct piece of work which we're going to have to do.

  • It seems to me that it ought to be done sooner rather than later, and doesn't need to wait for the start. We can get on with it.

  • The issue may be rendered less opaque by what's in the public domain or could be in the public domain from the civil litigation; what could be, not necessarily what is at the moment, but what could be, and that involves News International.

    But steering a course between the need properly to address my terms of reference and the need not to cause undue risk to any other process is important.

  • Sir, they're the four rubrics which you have identified. In my submission, for the smooth running of the inquiry, this needs to be sorted out, to use the vernacular, as soon as possible, but in a manner which isn't too hasty so that the interested parties, by which I mean those parties most interested in this issue, which will be Mr Garnham's clients, Mr Davies' clients and obviously our team, we have sufficient time to put in proper submissions.

    In terms of the timetable, you may think it appropriate that there be a further preliminary hearing to address this particular and important issue as soon as possible, and perhaps early next week.

  • Well, we need to find out when people would be ready to argue it, this document only having recently come into being.

    But it's certainly going to have to be resolved, not merely argued but resolved, which actually means a ruling from me, as soon as possible.

    Right, well, let's see what everybody has to say about that.

    Mr Garnham, let me start with you on this topic.

    You understand -- I quite understand the Director's perspective. The easy answer is "nothing", and I recognise the force of the argument without necessarily feeling that it's a way that I could go, given the other pressures and the terms of reference that I have to deal with.

  • Sir, I should say straightaway that although the Met Police and the Director have had conversations about this, and are of one mind, I, formally speaking, don't stand here representing the Director of Public Prosecutions today; I represent the Met; and there is a distinction there which is important to maintain.

  • I understand that. Does that mean that you believe that the Director of Public Prosecutions is likely to want to intervene to make submissions on this himself?

  • It is possible. I can say no more than that. It may be that I'll be instructed to make such submissions on his behalf. It may be not. But we would respectfully agree with Mr Jay's suggestion to you, sir, that a time is put aside to deal with this in the near future, and we will convey back to the DPP the importance that you are attaching to this, and it will be for him to decide whether he has representation separately, whether I am instructed to deal with his points as well as the Met's, or whether he chooses not to appear. I can't speak for him on that topic.

  • No, that's entirely fair enough.

  • I understand, and I'm sure he understands the -- and you understand the issues that I face, which are slightly different to the issues that he faces.

  • Absolutely. Sir, the note that was circulated today recognises those competing imperatives.

  • It sets out the concerns that the Director has in relation to any prosecution, and the police have in relation to the continuing investigation and those two are distinct as well. It attempts to suggest for your consideration, sir, one way in which those competing observations can be dealt with.

  • The problem with the suggestion, and of course I've only recently had the chance to read them, is that it runs a risk that we'd never end out of the Divisional Court, and I'm not prepared to have a situation which means that every three minutes --

  • No. We too would be anxious to avoid that, sir, but there is a problem in that the subjects which you and Mr Jay identified a moment ago are all of importance and all directly relevant, but it will be necessary on occasions to test their application by reference to particular documents.

    It is, we would respectfully suggest, impossible to deal with this entirely in the abstract. So whilst I respectfully agree with what Mr Jay says as to the need to address and reach resolution in respect of those points of principle, there may yet be a need to look at it against hard emails and documents. I say that merely by way of anticipation of submissions I'll make next week --

  • Yes, I understand the point. I can't stop anybody challenging a ruling of mine because the legislation provides that avenue, but if I am even to start to be able to address the issues I have to address within the timeframe, this bus will not be stopping.

  • Sir, no, I understand -- I respectfully recognise those points and we would say now, as we say at the end of this note, that we think it exceedingly unlikely that we will need to challenge a decision. One can never rule it out, but one hopes that it will be possible to deal with this without troubling the Divisional Court or the Administrative Court at all. But nonetheless we will be inviting you, sir, to consider the force of some of the points we make against the documents where it's at its most acute.

  • Well, we don't -- I understand the point. I understand the point.

  • That aside, sir, we are of course entirely content to prepare submissions as Mr Jay and you have suggested, sir.

  • Right. Who else -- I make it clear that the fact that a core participant is a core participant doesn't mean that they have to take part in every single debate. It may very well be that some core participants will not feel it necessary to enter into this debate at all, this argument, and leave it to me.

    But does anybody have anything to say about the general topic? Let me pick up the two most obvious people. Mr Davies?

  • Well, I don't think there's anything I want to say about the general topic now, sir. I think our position will be that we don't wish to obstruct the inquiry and we don't wish to obstruct the police investigation, not surprisingly.

  • If a modus operandi can be agreed between the inquiry on the one side and the DPP and the police on the other, I am sure we won't want to get in the way. But on the other hand, the particular matters which I suspect are going to be discussed are of close importance to us, and I think we may well have some observations to make. I don't intend to make any now.

  • Particularly, if I may say, I think what Mr Garnham was saying is that in the course of the hearing which is envisaged on this subject, perhaps next week, it may be necessary to refer to particular documents by way of illustration of the problems which arise, both for the prosecution and for the inquiry, and if those are our documents, then that's -- or documents which concern us, then we may well be interested in that.

  • Well, we'll have to see how far we go.

  • It may be necessary to make a section 19 order in relation to -- so that I've just not, as it were, thrown the baby out before I've even decided whether the baby is going to have a bath.

  • The other aspect is this, and this does concern you, and I'm absolutely not asking you to comment upon this now but I am asking you to think about it, I am concerned with culture, practice, ethics -- that's the rubric of the terms of reference -- and less on who did what to whom, which is another shorthand form of words that I've used.

    That's part 2.

  • For our grandchildren. What I am concerned that you think about is the extent to which, with your knowledge and your instructions, the picture at the News of the World can't be painted in a way that doesn't require over-descent into detail. I am not saying any more than that, and I am not -- you may feel this is not somewhere you can go, or you want to go, or you're prepared to go.

    But there is an element of this which, in order to paint the bigger picture, requires me to paint -- may require me to look at the detail. If it doesn't require me to look at the detail, then as far as I am concerned, that's all to the good. And that's not just a point that's relevant to News International, because if one goes back to What Price Privacy? and the Information Commissioner's report and that table, which involves others.

  • Then, again, it is the overarching position I am seeking to reach for the purposes of this part of the inquiry, in order to provide a factual -- a sound foundation to consider the other parts of my terms of reference. I would prefer not to get bogged down, if I can avoid it, in detail which is highly relevant to part 2, and is obviously that which the police and the CPS are focused upon; if I can avoid the detail, because I've got a sufficient substratum of fact, a narrative as I've called it, then I would be keen to do so because I don't want to interfere more than is absolutely necessary with an investigation or any possible prosecution, if there is to be one, and I certainly don't want to prejudice either of those.

    So I don't think that's too coded, but you understand the issue. It is, as I say, not just an issue for News International, but an issue for others because of What Price Privacy?

  • Sir, we understand the point and whether we can solve it, I don't know, but we'll take it under consideration.

  • I understand and I'm not requiring -- I couldn't require you to go beyond that which your instructions permit, however -- whatever advice you give to your clients. That's for you and for them --

  • -- to think about. But -- and I'm not holding a carrot out, I'm merely saying that for the purposes of part 1, I have to do what I have to do, but I don't need to go beyond that which I have to do. That's the point I am seeking to make.

  • So you will be present, is quite clear from what you've said?

  • I am going to ask you next, Mr Sherborne.

  • Sir, yes. These are issues which we say are relevant or potentially relevant to number of the core participant victims who are giving evidence to this inquiry in part 1, both potentially to their evidence and to the submissions that I might make on their behalf.

    I mean, of course we understand the concerns about creating any risk to the criminal investigation and to any proceedings. It's certainly not my client's desire to cause any such risk, but the phone hacking scandal is part of the narrative of the very real experiences a number of the core participant victims suffered, and are going to give evidence about in part 1, because, as you say, sir, that's part of your remit.

  • No, there's no question about that. It's not the story from their perspective.

  • I understand that. It is the extent to which one goes into the story and the issues which you're going to decide are therefore relevant --

  • Behind their story.

  • Their story. Anyway, of course nothing that I do in connection with the evidence that I adduce or that Mr Jay adduces in front of me, I should put it, in any way controls what you say or do. I can't do that and I am not intending to exercise censorship rights over you. You will be aware of the law, as well as everybody else and I've no doubt at all that your clients don't want to prejudice what is happening, because in large part they are the object of the exercise.

  • I will be there, sir.

  • Thank you. Does anybody else want to say anything about that? (Pause)

    Right. Well, as I say, nobody need feel obliged to attend. I've made it clear that although I teased Mr Sherborne about 10.30, the fact is nobody need be here at any of these hearings unless they wish to be. That's a matter for their professional judgment.

    Right. Well, how long -- when is it appropriate to set a timetable for to do this?

  • Well, I would have thought that the hearing would take half a day.

  • When I suggested the beginning of next week, that balances time required to prepare submissions against the need to have this issue resolved as soon as possible.

  • All right. Does anybody have any objection to that? Mr Garnham, you're probably slightly ahead of the game on this.

  • Yes, we are, because we've done the work that went into that note.

  • I don't know whether Mr Jay is expecting us to produce something further in writing or whether we can proceed straight to oral submissions.

  • Well, the only question is whether you want to produce anything that identifies where you think the law takes us, because your note doesn't presently do that.

  • No, certainly we will. The question is whether we do it in writing or orally. It is often beneficial to do it in writing because it speeds things up.

  • Yes, and it can be pre-read. You needn't worry that -- I am pretty familiar with the law on abuse of process. I am pretty familiar with the law of contempt. But there are obviously other things that are less familiar.

  • I am conscious of the fact that because we have thus far tried to do this in concert with the DPP, and that takes a little bit of time to organise that, but we'll fit in, sir, with your timetable.

  • All right. Is the beginning of next week difficult for you, Mr Davies?

  • Very good. Or anybody else that might want to participate?

    Right. Well, I think that that's a good idea, and there's no reason why we shouldn't have a hearing, then, next Monday to deal with this discrete issue.

    Right, we'll have a short break and then deal with what else remains. Thank you.

  • (A short break)

  • Right. There is an associated topic which will require consideration. It really comes up under "any other business" today, because it's not mentioned by Mr Jay, which concerns the fact that a number of persons have expressed a real interest in providing evidence to this inquiry, but wish to do so under conditions of anonymity. Mr Jay, where are we on that?

  • Sir, that is right. Sir, you would have, in principle at least, power under section 19 to safeguard the Article 8 concerns of witnesses, if satisfied that those concerns trumped any Article 8(2) consideration.

    The matter is touched on in Mr Beer's book, under the section, "Protective Measures for Witnesses", paragraph 6.92 and following.

    He deals, as you might expect, with the Article 2 and the common-law position, but it's page 308, at paragraph 6.110. He deals with Article 8, admittedly in quite general terms, and you'll note under paragraph 6.111 that a person's professional life may come within the scope of his Article 8 rights. (Pause)

    There are a number of witnesses who have come forward and doubtless others might do so, who are saying that they will not give their evidence without the protection of anonymity, which is the fear presumably of losing their employment and/or their professional reputations.

    Now, each case would have to be considered on a, as it were, case-by-case basis, which one would need to weigh up the strength of the Article 8(1) concerns against the competing considerations in Article 8(2), which would include the desirability of public justice, as it were, that witnesses give their evidence in the full glare of publicity and not under the cloak of anonymity, and also the obvious point that if witnesses are giving evidence anonymously, that will restrict the possibility of cross-examination.

  • These are all obvious concerns. They can be discussed in general, but as I've indicated, one would need to delve into the facts of individual cases before you can reach a decision. What seems appropriate in the first instance is that witnesses who wish to claim anonymity may be invited to give their account to the solicitor to the inquiry, and perhaps in a separate document the reasons for the anonymity claim, but until the issue is determined by you, such witnesses will have the benefit of interim protection under section 19, but in due course, you will have to decide in each individual case whether anonymity will be granted in respect of their evidence.

    If you were to decide, for example, that anonymity will not be granted because the Article 8(2) considerations outweigh the Article 8(1), well, then, presumably the witness will decide not to give evidence, and that will be the end of the matter. If, on the other hand, you decide to give anonymity in an individual case, well, then, the evidence will be disseminated on the basis of whatever protections you deem appropriate.

    Then there are ancillary or adjectival questions of how the evidence is going to be received: will screens be erected in the inquiry room, and matters of that nature; or indeed will the evidence be heard in private?

    So these again are all theoretical. One will need to consider the needs and demands of each individual case.

  • But it's sufficient at this stage for me to say, is it, that I am interested for the inquiry to hear from anybody, that I will respect a request for anonymity entirely and will not breach that anonymity unless I have the express approval of the person who has sought it? In other words, I will receive anything on the basis upon which it is provided and would be entirely content to allow that person to drop out of the system, as it were --

  • -- if I did not accede to a request for anonymity. That's the approach.

  • That must be the bottom line, and the other axiom is that any core participant who wishes to make submissions to you, either that as a matter of principle, anonymity simply should not be granted, or that in a particular case anonymity is inappropriate, should have that opportunity before the evidence is ever given.

  • The exact mechanics for achieving that will need to be thought through, because there are difficulties in providing witness statements even under the protection of a confidentiality undertaking which each core participant will need to sign in any event, in a way which might disclose to a core participant the probable identity of the witness. I confess that the exact mechanics of this have not been considered.

  • Well, any statement would have to be drawn up in such a way that did not, as it were, allow a jigsaw to be put together.

  • Otherwise, there's no point in it.

  • But that's -- presumably whoever offered me evidence on that basis would be very mindful of that risk.

  • But can I reach that conclusion at this stage, and then, should it arise, allow for an argument as to whether I should admit any evidence as a result?

  • Yes. Well, in my submission you can, but other core participants may choose to submit now that as a matter of principle, this proposed procedure is simply wrong, that the Article 8(1) considerations I've mentioned would never override the need for public justice. So let's hear what they have to say.

    But --

  • But Mr Beer certainly says somewhere in relation to section 19 that it specifically covers witnesses giving evidence under a cloak of anonymity.

  • Oh, yes. Yes, but the paradigm case would be an Article 2 or Article 3 consideration --

  • -- or similar common-law considerations. Those are in play in the Baha Mousa inquiry. The Article 8 considerations are less clear-cut.

  • But again, it is important to go back to what I am trying to do, isn't it, which is not, for this part of the inquiry, cast blame or make findings of fact about specific people, but rather seeking to obtain evidence of culture, ethics, practice.

  • Which can be more generic than specific. Can be.

  • All right. Well, anything else on that topic?

  • Very well. All right, this is called a fast ball. Mr Sherborne, do you have anything to say on this at this stage?

  • It is coming my way first. Nothing other than to endorse your approach; since we're talking in the abstract, if I can put it that way, we would endorse the approach that witnesses should be encouraged to give evidence in whatever form they can, and it's a matter then for you, sir, to decide whether or not, balancing Article 8(1) and 8(2), which is a familiar exercise certainly in other courts, as to whether or not that's appropriate. We have nothing more to say about it than that at this stage.

  • Well, I think that at the moment it is, as I say -- it's not theoretical because of the approach, but I'm not making any definitive conclusions about any person.

  • All right. Does anybody else want to say anything about that?

  • Just this: that although you have the power to say and order evidence to be given anonymously, if someone does contact the inquiry and you decide on -- having looked at the matter and having heard submissions from core participants, that that shouldn't be given anonymously and the person says, "I don't want now to give evidence", you still also have the power to compel a person to give evidence, and of course you may then have other core participants saying that evidence ought to be adduced, and the person contacting the inquiry may need to be made aware of that possibility, however remote it may be.

  • But it may not be, because I can say -- I mean, and help me, this is exactly the sort of issue that I wanted to think about. Why can't I say I will receive such material if I feel that no -- that it's inappropriate even, at first blush, to grant anonymity, then I can simply return the statement, because I won't have disclosed it to anybody and I won't pay any attention to it?

  • If I do what you suggest, then actually I am requiring whoever might have important information, one way or the other, not to provide it because I am saying: I can't even give you the warranty as you write to me that your name won't be made public because I have the power to subpoena and I have the power to do all these things. Unless I say: I will not exercise that power and I will be prepared to send the statement back, not deal with it in any way, unless you agree otherwise; then if I can't do that, then I effectively discourage the sort of assistance I might otherwise get.

  • No, and everyone -- it's common ground that you should be encouraging that assistance, but you need to contemplate these possible steps. You receive a document, a statement, which on the face of it you think should remain anonymous. It is then circulated with that anonymity respected for the core participants to make representations as to anonymity, and representations are made which persuade you, in those specific circumstances, that there ought not to be anonymity.

    Then, of course, the person -- the inquiry can return the statement in that situation and say no more, but really has to make a ruling at this stage that that will be its approach, to avoid the core participants coming back and saying: and what is more, not only should you not maintain anonymity, you should also call this person.

  • You should actually call this evidence; this evidence is very important evidence.

  • But of course you may take the view that to encourage it in the light of the approaches you have had, that that would be a proposed way forward.

  • Yes, because if I don't say that, they'll never do it.

  • Exactly, and that would be antithetical to the whole purpose of the inquiry.

  • That's the point. Thank you. Mr Davies, do you have anything to say about this?

  • No, I don't think so, sir. The only thought that I've had -- and this is, as you said, a fast ball --

  • Not at all. I think as Mr Jay says, the Article 8 issues could be quite difficult to balance, and I don't think we would want to get drawn into an argument in principle about that. But we certainly would want to have the right to make submissions in any particular case, and those submissions might -- you know, will very likely also embrace the principle. But I think an abstract argument would probably take a lot of everybody's time.

  • Yes. But the general principle has to be identified along the lines I've just discussed with Mr Dingemans, otherwise I don't get past the first hurdle, do I?

  • Well, I don't think we would have any objection to the procedure which was debated between you and Mr Dingemans, under which you retain the right to say: all right, I am persuaded that this evidence should not be given anonymously, but in those circumstances it's not going to be given at all.

  • Unless the witness is prepared to say: all right.

  • Unless the witness is prepared --

  • So, in other words, I give the witness the trump, if you like.

  • Could I just say, this discussion I think relates to complete anonymity, and not to a slightly different question of witnesses who may wish -- not to have their appearance bandied about, because that may occur with a number of witnesses. The particular example I have in mind is Mr Mahmood, who is perhaps better known as the fake sheikh.

  • But that, I think, raises much easier issues than complete anonymity.

  • I think that does raise easier issues. I don't exclude the possibility of taking evidence remotely, if it's appropriate and necessary. We'll have to see. Thank you.

    Does anybody else want to say anything about that? Yes, Mr Garnham?

  • Sir, only to add what Mr Davies has just said: you will be aware of the range of options that are open to you from an order for full anonymity with no evidence being given in public; down through anonymous evidence, given behind a screen; anonymous evidence without a screen; cipher so that only core participants know the identity of the person concerned; an order for no publication of name or appearance or addresses all the way down; and a particular solution may fit a particular set of facts.

  • I entirely agree. One size won't fit all, but the critical point that I am keen to establish -- and this is why I wanted to raise it now -- was whether to make it clear that I would receive such material without prejudicing the person who provides it from withdrawing.

  • On that I have nothing else to say.

  • Sir, I think Mr Garnham may have pre-empted one of the things I was going to raise. It is simply to understand the process by which a witness statement that your Lordship receives and considers of interest, but the witness wants to retain anonymity. Would the witness statement, when it is passed to the core participants, be redacted to the point where the core participants at that stage wouldn't be able to discern the identity of the witness concerned?

  • Otherwise, it defeats the purpose, doesn't it?

  • I can see that, sir. That's my point really. It is quite difficult then to make submissions on whether anonymity may be justified in the abstract without knowing the identity; if, say, the witness is making allegations about newspaper X, in certain circumstances, it may be that newspaper X would like to submit evidence in response to that --

  • -- but without knowing the identity.

  • I understand the point but we'll only be able to do it on a case-by-case basis, and given that I am not, as I say, here to seek to unpick one newspaper as opposed to another, this isn't going -- I am not going to produce a report that says: well, I think this newspaper has a wonderful system and that newspaper has an awful system. That's not my job. My job is to see what's going on in the business and whether as a result, because it really is the follow-on, the method whereby -- the controls that are in place, the PCC or whatever, are sufficient.

  • It's only to get to that last question that I've got to go through the first, isn't it?

  • I understand that, sir. It's just in terms of the wider culture or practice that's going on, it is inevitable that if evidence is put forward, either by Mr Sherborne's clients or by anonymous witnesses coming forward and contributing themselves, if that evidence is put forward, that's going to be specific examples, and one can see a situation where a misleading impression of the culture and practices and ethics of the press is created, if press are not able to answer individual allegations.

  • I take the point, and therefore that's the balance and therefore one will have to look and see what's going on and have to see whether it adds to the corpus of knowledge. I'm not saying how much weight could ever be attached to this evidence, which is an entirely different question. That's an entirely different question.

  • I think that maybe is the fundamental --

  • Sir, the last point your Lordship made is the key point here; this is a fast ball and I wonder whether the way forward is for us to consider what your Lordship and the inquiry have said this morning and then make further submissions on Monday, if so minded.

    Our concern is that in receiving the evidence -- but obviously your Lordship will need to see the application for anonymity and the reasons that lie behind it first of all, but we are concerned that while you should have to see the evidence, the anonymous evidence that the witness wishes to give at that stage, in order to -- when at that stage all that needs to be considered are the reasons why the applicant wishes to have anonymity.

  • But the reasons might be balanced, but the evidence potentially to be given may be of significance, even if only limited weight can be attached to it. I am not troubled about looking at material which I am later going to exclude from my mind. I spent a lifetime doing that. So nobody need have concerns about it, but I am perfectly happy if you want to say something else about this subject on Monday for you to do so.

  • I think that would be the appropriate way forward, that we could all consider this fast ball and the ramifications and the fairness of the procedure being indicated.

  • It's not too fast a ball. We won't debate it. Don't worry.

    I am very happy to continue to hear you on the subject, because I am conscious that it wasn't in the note that Mr Jay circulated, because this is an issue which has only comparatively recently arisen.

    So if on Monday you want to say something else about the subject, then you'll be absolutely at liberty to do so and I won't do anything that runs counter to that in advance of Monday.

  • Except I might start to prepare a protocol that deals with it.

  • I think that would be --

  • When I say "I might start", I don't actually mean that. Right. Does anybody else want to say anything on this subject?

    Just Mr Sherborne, you ought to pick up the point that's been made, and the possibility is that you may say: well, actually, I want this person to give evidence but that might just have to be the quid pro quo.

  • It may be. You'll appreciate that in relation to the core participants there is only one, and we've already debated this, or ventilated this --

  • Oh no, I'm not talking about the core participant who is himself or herself anonymous. That's quite different. I'm not talking about that all.

  • I appreciate the point. I just wanted to be clear in case there was any suggestion it was somehow core participant victims.

  • Thank you for making that point.

    Right. What else am I dealing with, Mr Jay?

  • The uploading of material on the system and dissemination.

  • The first stage, and this can be completed almost immediately, is that the core participants will be invited to sign a confidentiality undertaking. That is being prepared in draft. I have approved it. It is in a standard form. It is based on a similar undertaking given in a previous inquiry, and I imagine will be entirely uncontroversial.

  • Yes, because obviously one can't have what one is showing to core participants in advance enter the public domain.

  • Yes. Sir, the most interesting evidence from the core participants' perspective, save for a category of evidence I'll need to address in a moment, are the witness statements from other core participants and indeed from ordinary members of the public.

    It occurs to us or appears to us that those statements can probably be provided in full to the core participants, save that essential personal data can be redacted, and by that I mean the address at the start of the statement, where it's not a professional address.

    So that process can occur almost immediately in relation to the witness statements. There are then two --

  • The other one -- yes, you might --

  • There are two categories of documentary evidence which are slightly more tricky. The first category are the exhibits to many of the press witness statements, which are multifarious but many of them contain what are said to be commercially sensitive material, for example details of bonuses, details of disciplinary procedures, the minutiae of contractual matters, et cetera, and it's said that to provide that material to competitors might be commercially damaging.

    Now, the strength of that objection is difficult to assess, certainly from an outsider, but what I would suggest in order to accelerate the process and without prejudice to the protocol is that if individual members of the press can identify more precisely and as quickly as possible what redactions are sought in relation to what I am calling the commercially sensitive material, insofar as redactions have not already been made in material supplied to the inquiry, if that could be done as soon as possible, well, then, rapid decisions can be taken by the inquiry as to whether to accept the proposed redactions or if not to accept them what -- how the matter can be resolved, hopefully consensually and without the need to trouble you.

  • Is it possible to provide the statements without those exhibits that --

  • -- about which concern is expressed by the makers of the statements?

  • And then ask the makers of the statements to identify the redactions they seek, given that they've asked for it to be redacted, whether in whole or in part. But I would have thought that much of the material to which you refer would not be of primary interest to the core participants, the history of -- it might be of interest.

  • Well, given that I, having read most of these exhibits, can see that most of the press core participants have very similar bonus structures.

  • You had better be careful about this, Mr Jay.

  • Perhaps I've already given away too much. It is hardly of surprise, because the range of possibilities here is not going to be too plentiful. The concerns which have been expressed, I can see one or two instances where they might have force, but generally I don't see the strength of the point, but I would invite the core participants in relation to these exhibits just to be more specific.

  • Well, you're not talking about the core participants; you're talking about the witnesses.

  • Yes, they are -- we're talking about press witnesses who are --

  • Yes, but the BBC might be in the same position, I don't know.

  • Yes, they are. That's true.

  • So you disclose the statements, you disclose the exhibits about which no complaint or concern has been raised by the maker of the statement, and you ask the maker of the statement to identify precisely how the documents which he wishes to be redacted should be redacted, and then you make a decision?

  • That seems eminently sensible.

  • There is another category of documentation, which is more problematic because the issue precisely overlaps with the one you're going to determine or at least hear argument about next Monday. There's documentation which has been provided pursuant to the order of Mr Justice Vos in the civil proceedings, has been provided to the inquiry either by the Met Police or by the claimants to those proceedings, it matters not which. Some material has been provided to the inquiry in entirely unredacted form, where the police might wish to say, in line with the submissions they've been making, that that material should not be published in that form or at all.

    So all I can say at this stage is that that material, and there isn't a huge amount of it, but there's certainly a fair amount of it, the approach to that material and its provision to the other core participants will have to await your ruling as and when you give it.

  • Absolutely. That must follow. But the witness that I was going to refer to and wondered whether he was in one of your other groups was the evidence that comes from the Information Commissioner.

  • Has anybody sought redactions in relation to that?

  • I don't believe so. I think we can provide all of that.

  • So that's a fair amount of material.

  • I mean, I am just concerned about the free time of the core participants.

  • Well, the witness statements I am referring to, there are a significant number of witness statements. The redaction of the personal data can take place reasonably quickly; in most cases only a professional address has been provided. I can assure the core participants that to read all that will take just a bit of time. It's the exhibits. Most of the exhibits are, with respect, particularly interesting, need to be other than skim read.

  • You mean they're not particularly interesting.

  • They're not, no. But they provide evidence of systems and of corporate governance --

  • -- which you do need to consider. I am not seeking to diminish their importance.

  • I think that's interesting.

  • What is really interesting, and I mean it, is the material I've just been referring to; indeed I was reading some of it this morning and I am going to say nothing more about it.

  • No, I think you shouldn't. All right. Well, I understand that and there are all sorts of decisions which will have to be made before one gets down the territory of revealing anything with which we've been provided that the police or the Director is expressing concern about. That's the subject of the argument we're going to have on Monday, and will lead to a ruling and will doubtless lead to at least further consideration, or may do in any event. I'm not jumping any particular gun.

    So everybody will just have to wait for that.

  • But -- sorry, Mr Garnham.

  • I was only going to say in that context that we would invite the inquiry not to upload the witness statements from the "victims" until you've heard the argument on Monday, because it strikes us that there may be -- we haven't seen it so we don't know -- there may be material in those statements that would be prejudicial to police investigations.

  • Well, are you suggesting that I can redact things that the victims themselves wish to say?

  • I don't want to foreclose on the use to which those statements are made before you've heard the argument, sir.

  • Well, it may be you should have a discussion with Mr Sherborne, because I am going to require a lot of convincing to shut out those who allege that they are victims --

  • I understand that, sir.

  • -- from saying what they want to say.

  • Absolutely, and I would be slow to make the point but I don't want to make it impossible to make the point.

  • But I don't think that we'll be putting any statements -- as I understand it, we don't yet have any, have we, Mr Sherborne?

  • Well, I am conscious of not taking up Mr Garnham's invitation to put back any statements any further as a result.

  • Can I say this: we're alive to this concern, not least because of our involvement in the civil litigation in the Chancery division. It is not the intention of any of the core participant victims who are giving evidence to prejudice the police investigation or the proceedings.

    I understand that's a general statement and there may be specific points that Mr Garnham wants to raise. I understand what you're saying, sir. All I can say at this stage is we're very alive to it.

  • Right. But the answer is that this isn't even going to be in the first tranche of statements to be uploaded, not least because the inquiry doesn't have them yet.

  • Sir, I was trying to do that calculation whilst I was sitting here. I think it is right to say that none of us -- actually, it may not be right to say that -- I think there are statements, at least one statement in the first tranche as envisaged is going to be delivered, which will come from someone who was a victim of phone hacking. But it is something that we're very alive to.

  • I can have a discussion perhaps with Mr Garnham.

  • You're very welcome to do that, provided you make your decision about what you want to put in, and then if somebody wants to rule that I haven't got to hear it, then they can make an application.

    I would, for my part, be slightly surprised if anything that the victims wanted to say, given that they're at the very end of this process, of whatever process there has been, would itself create a risk of substantial prejudice to an investigation or a trial. It may very well identify how significant it's been, and it may very well talk about the impact that conduct has had, but I don't consider that as likely to engage the issues of substantial interference in the process of investigation or any potential prosecution.

  • Sir, I agree. It's extremely unlikely, but it is something that we want to reassure the police about, because we have no interest at all, I think that's clear from everything I've said this morning, we have no interest at all in prejudicing --

  • No I understand. Right. Well, that's a useful exchange of views. Does anybody else want to enter into this discussion? (Pause)

    Right. Anything else, Mr Jay?

  • Well, there is one and that's the question of -- the final item on your note, which concerned visits.

  • I've said that I've received invitations, possibly because the comment has been made that I don't understand the media, and I am prepared on a low-key basis to accede to them, but would not accede to them if there was any objection from either -- from any of the core participants, and of course I am particularly focused on Mr Sherborne here, because he doesn't run a newsroom.

    What I would do is arrange a visit, as I say, low key with one member of the team, not one of the counsel but one member of the team, and I would not listen to -- I mean, I don't want presentations, I just want to see -- I am happy to see how it works, which is what we're talking about, and take that away.

    Mr Sherborne, your note said you had no observations to make about the proposed visit, if I believed it would be of assistance.

  • Sir, yes, we have no objection. I am sure they will look very pristine when you go.

  • Yes, well, at the moment there hasn't been agreement about the language that's used in these rooms.

    Mr Garnham, do you see any problem with that?

  • Well, I don't ask any of the media representatives. If any feel that it would be useful for me to visit them, then communicate with the inquiry. I will not consider it amiss if they don't, and I will not draw any inferences from that.

    I would quite like, I think if I am going to do it, to visit one at least regional newspaper. The point has been made that nationals are different from regionals. One of the invitations that I received was from a core participant who also owns regional titles. So that's not terribly difficult to work out who that is. But otherwise nobody need feel it necessary to fall over themselves to offer me facilities. Equally, nobody should feel inhibited. All right?

    Is there anything else that I can do to encourage the process of discussion that I know has been taking place, so as to ensure that we can start now on Monday, I think it's 14 November, and proceed at a steady pace, without interruption, hesitation or deviation thereafter?

  • Sir, only one minor point.

  • The hearing next Monday, 31 October, I will be putting in a submission in writing. I want to do so by 4.00 pm this Friday. It may be appropriate for you to rule that anybody who wishes to put in a submission in writing should do so by the same date.

  • Thank you very much. That's a good time. 4.00 pm Friday is a good time. Thank you for arranging my weekend, Mr Jay.

  • (The inquiry adjourned until 10.30 am on Monday, 31 October 2011)