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

  • MR SIMON HUGHES (affirmed).

  • Mr Hughes, you've given us your full name. I'm going to invite you, please, now to confirm your witness statements and explain the status of the second statement. Your first statement is dated 20 February of this year. It's signed by you and appended to it is a statement of truth in the standard form. Is this your formal evidence to the Inquiry?

  • Sir, this is my formal evidence.

  • Mr Hughes, thank you very much. It's obviously required effort and commitment to make this statement. I'm very grateful to you for your help.

  • On Friday, Mr Hughes, you provided the Inquiry with a second statement and an exhibit. Again, there's a statement of truth and you've signed it, but the status of this evidence we'll explain towards the end of your testimony, if I may.

    First, to introduce you, you've been a Member of Parliament since 1983 and president of the Liberal Democrats from 2004 to 2008. You've twice run for the party leadership and you're currently the deputy leader of the Liberal Democrats in the House of Commons; is that correct?

  • It follows, as night follows day, that you have a significant public profile; is that right?

  • I think that's probably true.

  • Thank you very much.

    You explain in paragraph 4 of your statement your mobile telephone communications. Between 2002 and 2006, your mobile phone was the main way you had of communicating with parliamentary colleagues. So is this right: unlike Lord Prescott, who told us how he didn't really use his voicemail yesterday, did you, Mr Hughes?

  • Once I had my mobile phone, I used my voicemail, other people left messages and things proceeded normally until, as I have said in my witness statement, I suddenly started to discover either messages I was told were there I couldn't find, or on occasions I discovered I couldn't actually access my voicemail at all and I had to go to the provider to reset the system.

  • Thank you. As you explain in paragraph 6, you believe this occurred in either 2005 or 2006; is that so?

  • That's correct. That's the first time I had -- I found there was, as it were, a systemic failure and had to complain. Obviously I wasn't to know, at that stage, what the cause of the failure was.

  • Were there ever occasions when there were messages which, according to the system, were apparently read but you knew you hadn't listened to them or read them?

  • Yes, there were. In those days, there was an envelope sign which indicated an unread message. There were certainly occasions when there were no envelope signs and yet the messages clearly were stored in the system. I had never heard them.

  • Thank you. In paragraph 7, you explain what happened in January 2006, when Mr Kennedy, the then leader of the Liberal Democrats resigned, which was on 7 January, and a plethora of messages were left on your voicemail system; is that right?

  • I gave this paragraph as an indication, really, of the confidentiality, not for me as much as for other people, of information. It was at the time there was quite a lot of rumour about Charles Kennedy and his future, and then there were obviously fairly intense internal discussions within the party and within his family. I was party to some of those. I was the party president, I needed to be kept informed, so the information coming to me was not just confidential to me and to the party and relevant to British politics more widely, but clearly of direct personal interest to colleagues and the families of colleagues, and so it was, I would say, of the most sensitive and confidential nature for other people.

  • You in due course stood in the party leadership election. You tell us you were odds-on favourite at the bookmakers, but then you received a call from someone at the Sun. That individual has been redacted because he may have been party to an offence under the Data Protection Act, but can you tell us in your own words what this individual said to you?

  • Yes. Obviously I remember these matters fairly clearly. I received phone calls -- or my office, to start with, received phone calls -- I received phone calls from somebody at the Sun saying they wanted to talk to me about a private matter and asking to see me. By the end of the day in which that first call had been made, I had agreed to see them. I had assembled my campaign manager in the leadership campaign and my solicitor and other people and we met that person, and he then shared with me the fact that the Sun had come by information which were records of telephone calls made by me.

  • Yes. Did this individual explain whether there was a public interest in this entering the public domain?

  • I don't believe he did. The meeting was relatively short because although it was a hugely important and personally difficult matter, I was in the middle of an election campaign, I had a campaign team who were working for me and I wanted to mitigate the harmful effects of whatever was happening. So there was a relatively short meeting. I didn't ask for lots of further and better particulars. I admitted straightforwardly the nature of the calls that he said he had information that I had made -- I didn't think there was any reason not to do so -- and as a result of that, then gave an interview to the Sun explaining that, which I have to say they didn't, in their title and following days, entirely accurately represent the key content of, but that's a separate issue.

  • One possible consequence of this is that, paragraph 9 of your statement, your poll ratings fell and we all know you didn't win that election; someone else did.

  • All those things are true. It's a "what if" question. Half of me is frustrated that I went from being odds-on favourite and as strongly tipped to win our party leadership as David Cameron was to win his, to not winning. It would have been great to have won, but the consolation is that probably running political parties in this country is an even more onerous burden and it may be life has been easier without doing it. So I am fairly philosophical, but certainly there was apparently a direct impact between that revelation and the consequent press coverage and my political reputation and chance of winning the election.

  • May we move forward to October 2006. You were informed by Metropolitan Police officers that you'd been subject to unlawful monitoring of your voicemails. Can you recall now who you spoke to within the police?

  • I would need to check the names. I was phoned, sir, to ask if I would be willing to see police officers. It was during the summer recess, as I recall. They wanted to talk to me about, again, a confidential matter. They asked to come to see me. They came to see me in my constituency office and they told me that they had discovered that Mr Mulcaire had been acting illegally in relation to my phone, that it was the explanation for why I hadn't been able to receive messages and my voicemail had been interfered with, and they wished to prosecute him, and they asked me whether I would be willing to give evidence. They said in their view the evidence that he had hacked my phone was incontrovertible.

    I said I would obviously be willing to collaborate. I asked two other significant -- what I hope the Inquiry might believe are significant things. One is whether other political colleagues were also the subject of interference, and I was told that they were, but I think the phrase was other colleagues were not very willing to go public about it, and secondly, I asked whether there were other people involved and they said, "No, we're just proceeding against Mr Mulcaire."

    I'm a lawyer, obviously. I understand the sort of sample specimen count concept.

  • And so, sir, I perfectly reasonably assumed that six witnesses would be sufficient, as it were, against one defendant. What I didn't know, because I was not shown the evidence which was the basis of the Mulcaire prosecution, was that that same evidence clearly revealed that other people who were journalists at the News of the World were clearly involved, whether they were involved directly or indirectly, but their names featured in the same place as Mr Mulcaire's name, and had I known that, I would have been more robust about continuing a line of inquiry, saying, "Excuse me, why aren't these people being prosecuted as well?"

  • I'm not seeking to judge that, and I have to be very careful because, as you know, it would be difficult for you not to know that there was an ongoing very substantial police operation.

  • But what would be necessary for a prosecution would, of course, be directly admissible evidence against anybody else, which may or may not come from what Mr Mulcaire wrote in his book. I'm not judging it.

  • I'm merely identifying that there are issues.

  • But your point is well taken, not merely as regards width but also breadth, if you understand the point I'm making.

  • Yes. Sir, in my early days at the bar, I prosecuted as well as defended, and I understand the way the relationship between the police and the CPS works, and therefore it struck me as fairly obvious, once everything was revealed, that if you had seen other names of journalists on the same paper on the same pieces of paper in the same notebook, the police would have asked some questions and got them in for questioning and investigated what their role was, on the one hand, and you would also have pursued Mr Mulcaire and potentially other people and asked them what the relationship was with other people. I mean, it was -- I understand a specimen count against one defendant. What I am very unhappy about and it seems to me was a complete failure was to explore whether it would be appropriate to bring charges against other defendants at the same time as part of the same interrelated set of activities.

  • I understand the point you're making entirely.

  • You told us, Mr Hughes, that they didn't show you any evidence?

  • Did they tell you, though, what the essence of the case was in relation to Mr Mulcaire, which, as it were, proved that he had been hacking into your voicemails?

  • Yes. They explained they'd found material, that it was material which showed he had all my personal data -- and perhaps I could come back to that in a second -- that he -- they were satisfied he had hacked into my phone and they explained in summary how that would have been done. That was consistent with what I had experienced, which I shared with them, so the two experiences married, which confirmed to them that that clearly was also true. They were clear there was incontrovertible evidence of the calls made in relation to Mulcaire and my mobile phone, and for the period up to -- well, up to August 2006, which was when they did that enquiry.

    What they didn't tell me was that Mr Mulcaire not only had that phone number but he had every other phone number, address and other things. What they didn't tell me was --

  • Yes. They didn't tell me that he had, for example, the hotline in the office, which only a few people know, my private phone number at home, which is private because four years before or something like it I'd been a witness in a murder case and had had to have police protection, so I think it's perfectly reasonable to think you might want additional protection. I'm not at all nervous about these things but there are sensible precautions you take.

    So all that panoply of information was in the same place in the notebook, together with all sorts of other things, which they didn't share with me. Names of friends, addresses of friends, phone numbers of friends, and so on and so forth. So I had fairly limited information given to me.

  • Could I just ask one question about the word "friends"?

  • It's this: by that, do you mean political friends who might be of interest in their own right or people who actually would generate no interest other than their relationship with you? Do you see the point I'm making?

  • Absolutely, sir. I see the point. The clear answer is the second. Let me be straight with the Inquiry: there were two names and addresses given of personal friends of mine who are not in public life at all. As it happens, one female, one male. They clearly -- the News of the World, Mr Mulcaire and others, were trying to stand up stories in relation to each of them. That's obvious from words used in the notebook, which I saw later. Absolutely no public interest in those people being in the public domain. Not politicians.

  • That's the question I was asking.

  • In professional life, no other interest to the media at all, one of whom certainly then was pursued serially and regularly -- I'm not saying necessarily only by the News of the World or by the News of the World, but was pursued by the press, and it can only have been because of the relationship with me, and in a way that was very deleterious to them. The other wasn't, to my knowledge, but it would have been potentially very harmful to them, too, their family life and so on, all based on a salacious assumption in both case. They were trying to establish relationships between me and these people, neither of which were what they would have liked them to have been.

  • For newsworthy purposes, you mean?

  • I understand, I understand.

  • Mr Hughes, can I just come back to what information they did share with you?

  • You've clearly explained a range of information they didn't, but I've been asked to put to you this: did they share with you the fact that Mulcaire had your mobile phone number, its associated PIN code, the Orange account number and the relevant passwords?

  • Did they explain that that, in their view, was sufficient to establish criminal offences under RIPA 2000, or did they say they had additional evidence which completed the circle, as it were, namely evidence of calls which Mulcaire had made to your voicemail?

  • They said the second.

  • So they said they had that first set of information, but also that they had evidence that he'd made calls.

  • Perhaps I should clarify. I think already at this stage, sir -- there was more than one conversation, but there was -- at some stage, clear information was relayed to me that the evidence was such that there was going to be a guilty plea because it was unarguable. I think that may have come later, rather than at the meeting when they went through the evidence.

  • Probably, because your experience may be like mine, that even cases that are unarguable don't always lead to guilty pleas.

  • Yes. My recollection is that we had the conversation no later than October. I think the first court appearance was in December and the guilty plea came only then, or not before then.

  • It came, I think, on 26 November.

  • November. That's correct. I beg your pardon.

  • And there was an indication shortly before that that was going to happen.

  • Yes. The reason that's relevant is that clearly there was a discussion about court dates and availability, and I think the police indicated that it looked to them pretty clear, if they had the six witnesses with such strong evidence, that there might not be an effective trial and there would be a plea.

  • Mr Hughes, the reason why I'm asking these questions, apart from the fact it's very important to have this evidence -- it's material which I will deploy tomorrow with the relevant police witnesses.

  • So I will need to be absolutely clear where we are on your evidence. But you made it clear that you were going to offer support and assistance to the police investigation, but as you've told us, there were guilty pleas and that was the end of it; is that right?

  • Yes. I was in no doubt that I would collaborate. I was slightly frustrated to hear that other colleagues were being less willing to do so. I understand the sensitivity of going public in this area. By this stage, I had gone into the public domain, not through my own willingness, on the subject, so it wasn't any problem to me to potentially be in court again on these subjects, and of course in the intervening period, there had been the Information Commissioner's report in May 2006, and then in December, just after the guilty plea in November, the follow-up report, and I was clear personally and politically that it was really important that this sort of behaviour -- both the hacking of phones, which the police had come to me about and had clearly been happening to other people, but also the general abuse of data, purchasing, selling, blagging, all those other things -- was unacceptable and I was determined to do everything I could, personally as well as politically, to try to deal with that, and I am frustrated even now that there wasn't comprehensive action taken then. That was the window of opportunity, it seemed to me, when a lot of pain and grief could have been spared had the police, on the evidence that there was, if it was strong enough and if it had stood up adequately, could have prosecuted those who clearly were in the frame, or sort of at least gone to the CPS and seen whether that was appropriate or encouraged the Information Commissioner to do the same or whatever. We lost three years, three or four years, in which illegal activity continued. I wasn't to know that, obviously, at the time.

  • Well, whether it did continue or did didn't continue is an interesting issue. One consequence on the other side of the line may be that now what is happening is probably far broader and wider --

  • -- than anything that might have been contemplated then. Now, that may be a good thing or it may be a bad thing. Different people clearly have different views about that, but having started from a position of absolute neutrality and retaining my intention to keep an open mind throughout, what I have heard tends to suggest to me that what is presently happening is a good thing.

  • Sir, can I just make a response to that? I am really, really pleased that the Inquiry was set up. I supported very strongly that that should be done. I understand exactly the point you've just made. I was trying not to make the point that now there is a very wide-ranging response to these issues, which is in the public interest, very clearly in my view, and the police are now seized of this issue very strongly, as the Deputy Assistant Commissioner said yesterday. That's a very good thing, not just in relation to the News of the World but more broadly. I would encourage them to, now they've opened the box, complete the task fully.

    My comment, sir, wasn't that we aren't in a very good place now potentially to get a much better system, but for the individuals concerned, both those who were the victims -- public figure victims and non-public figure victims -- and those who appeared to be acting illegally, on what we now know, and appeared to continue to act illegally, if there had been robust action in 2006, a lot of the illegal action might have been shut down, stopped, because it would have been dealt with, and a lot of people who are now known to be victims might not have been victims or might not have suffered as much. That was the point I was making.

  • I take that point on board. There were several witnesses whose lives, it seemed from their evidence and from the facts, have been very dramatically affected by that delay.

  • Mr Hughes, you explain in paragraph 12 of your statement that you supported the Information Commissioner's call for the penalty for the blagging offence, the Section 55 offence, to be increased.

    May I ask you to deal with the suggestion that the increase in the sanction to embrace the possibility of a prison sentence would have a chilling effect on journalism?

  • Yes. Sorry, I come from a political tradition that doesn't like locking up people if you can deal with things by other routes, and I hold to that view. But I was clear that when the Information Commissioner had exposed -- and, sir, you will know the figures, but in his second report, the breadth of the activity -- just so that I don't get the figure wrong, give me two seconds to turn up the right page. There were 305 journalists or clients using the services in his table in the 2006 December report, and thousands of transactions.

  • Well, that's Whittamore, and related issues.

  • He, if you remember, sir, did a report in May. He then reported again in December on Operation Motorman and other things. There had been a couple of people prosecuted by him, one person who had accepted a caution, but he was asked on an FOI request to explain the detail of that, of the general assertion he made. He did so. There was a table of 30 titles, all the major ones, the Mail, the People, the Mirror, the Mail on Sunday, News of the World, Sunday Mirror and so on, going right down to some less likely ones like Women's Own.

  • That's raised the argument that actually some of these enquiries may have been perfectly legitimate. You understand the point.

  • Of course, but to answer counsel's question, I was clear that only to have a financial sanction would not be enough, and I supported the Commissioner -- not for a ridiculously high prison sentence maximum, but for a prison sentence as an option, with a fairly short sentence as a maximum tariff, as being available to the courts, either for serial offenders or the most serious offenders or whatever, and I then was frustrated because for the remaining period of the Labour administration until 2010, and in particular in 2009 and 2010, when these issues came to light again after the Guardian revelation, in the end there was no action on this, in spite of the fact it was promised and we were led to believe it was coming and that Labour were going to take on board what had happened.

    So the fact that the law wasn't changed was frustrating, and to answer Mr Jay's question, I did believe it was appropriate to put that in the box of punishments available, and to add a small prison sentence.

  • Mr Jay, would you come back to the issues surrounding why the law didn't change at the end, as you did with Lord Prescott yesterday?

  • Mr Hughes, may I move forward now to July 2009, the Guardian piece, which was 8 July, paragraph 14 of your statement.

  • You explain that you raised the subject again in Parliament, pressing the Labour government to investigate it further. May I ask whether there's a typographical error in the penultimate line in paragraph 14. Do you mean 2009 there?

  • I do. I beg your pardon, sorry.

  • Called a debate in Parliament.

  • You called for a commission into broadcasting and the media. Similar or different to this Inquiry, may I ask?

  • This Inquiry will potentially do very well to fit that bill.

  • Right. Then you explain two years later, 25 May, you had a meeting with two officers from Operation Weeting. The first one was the SIO.

  • Detective Superintendent Mark Kandiah and a detective constable. As you've explained earlier, on this occasion you saw for the first time the underlying material itself which related to you, and that included transcripts of messages left on your voicemail and also the call data, which linked directly with Mr Mulcaire; is that correct?

  • I saw all the information. Obviously the information that wasn't relating to me was redacted in the copies I saw, perfectly properly, but it not only showed that they had every bit of information about my home address and my office and phone numbers and all those things, but that was where also I saw -- and went through with them, obviously -- other names and addresses and phone numbers and professional activity and so on that I referred to, sir, earlier of friends of mine. There were also other suggested lines of enquiry which meant nothing to me, in the terms of I didn't know the names of the people who were referred to.

  • This is the material that you were referring to a few minutes ago, where you said this was not known shown to you, but now you've seen it?

  • Yes, and it was at this stage, when the police came to me last year in an office in Parliament, that they literally opened the books and showed me the material, all the pages of the notebooks with the information, which included the material I've referred to earlier, sir, about other people who were friends, but also had, as it were, other lines of enquiry, as it were, indicated which were (a) fallacious, and (b) in one case had a name of somebody I didn't know, was completely a distraction and an invention. But it looked to me as if there was a pretty general trawl to find anything that might lead anywhere that might lead to a story. I think that was a summary conclusion of what I saw.

  • Did you express concern or disquiet to these officers that you hadn't been shown this material back in October 2006?

  • I'm not a very aggressive or angry individual. It wasn't their fault that I hadn't been shown. I think I expressed disappointment and frustration that I hadn't been shown it earlier. I was grateful that at last they were doing their job and that it was being done properly, and it seemed my job was to encourage them and compliment them on doing a thorough job and wish them well and be grateful that they'd done that and help them as much as I could to give them accurate information as quickly as possible. So I didn't, I don't think, vent much of my spleen on them. It wasn't their fault.

  • Paragraph 19, where you refer to a name in the top left-hand corner on one of the pages of the Mulcaire notebook which related to you.

  • To be clear, you're not, of course, going to tell us who that was, because that would prejudice the police investigation, but it wasn't "Clive" for Clive Goodman, was it?

  • No. So there were three names. Again, obviously it would be inappropriate to say here who they are, but three names of people employed by News of the World, which featured at different -- on different pages of the evidence on which my information also featured.

  • Three first names; is that right?

  • And these are the names that --

  • Let me just be careful. I believe first names, but I would need to check whether there was a surname anywhere.

  • For the avoidance of doubt, paragraph 36, when you refer to "at least three other senior journalists", these are the three?

  • Those are the three, yes.

  • When you say in paragraph 19, third line, that you "infer that this relates" -- that's the corner name relates -- "to instructions give to Mulcaire by that person", was that an inference which you drew alone, as it were, or was it an inference which a police officer shared with you and which you agreed with?

  • As I recollect the conversation with the police -- and my head of my office was with me so we'd be able to check that, but the police showed me the pages. They asked me to identify what I could on each of the pages. Obviously I helped them where I could and I think they indicated that there may be, in this book, some names of other people with whom Mr Mulcaire was working on these stories, and asked me if I recognised them, could confirm that, had a view about that. So I think they opened the issue but without leading me to the answer.

  • Yes. Paragraph 24, now, Mr Hughes, where you really wrap up here a number of matters which you've already explained to the Inquiry now in your oral evidence, about your surprise that you weren't shown this material in 2006 and also the fact that the police investigation did not go further than Mulcaire and Goodman. In your own words, please, particularly on the second point now, why are you so surprised?

  • The reason I was both surprised and disappointed was that in the end two people were taken to court. One was an employee of News of the World, as we know. He was the royal correspondent. He was taken to court specifically on charges that relate to the Royal Family and their staff. The other wasn't an employee of News of the World, but somebody working for them as an agent. But clearly employees were engaged, and therefore the whole panoply of other people who it now appears had their voicemails hacked on the instructions of people in News of the World were not in any way used as evidence against the employees.

    Really, the more serious offence, in my mind -- I'm talking not legalistically but generally -- is that employees of national newspapers were behaving like this. You can sort of understand how a freelance individual working for themself might hold themself out to do either things that were illegal or less legal, but there are probably different standards expected of people who are self-employed individuals than people who are employed by national titles owned by nationally and internationally important companies, and I -- that was the disappointment, that those who were employed weren't pursued, and obviously, as we also know, I think confirmed yesterday in the Inquiry, from the email from the lawyer to Andy Coulson, sent in September, which is attached to my evidence -- perhaps you intend, sir, to come back to that, but it was clear that from September 2006, at the highest level, the News of the World knew about this -- there's another very important matter that I deal with in my evidence, which I hope I might be allowed to say something about that in a second -- and therefore, in the public interest, the News of the World and their employees should have been held to account, not just a freelance individual agent who was employed on a contract basis.

    That's, for me, where the significant failure occurred and where the police, for a reason I don't understand, decided not to go. I can understand they might not have been able easily to bring charges against a whole number of journalists. Some might have been much more able to have been prosecuted because of the evidence than others but there was no prosecution against anybody other than Clive Goodman, and Clive Goodman only because of his work with the Royal Family, whereas there was a whole range of people clearly acting in concert, either directly or indirectly, illegally, and they were not touched. I find it impossible to find a good explanation for why that happened.

  • The email you refer to is at tab 147 of our bundle, but also in the exhibit to your witness statement at page 28. It has been pored over but it is right to turn it up again because it may provide a platform for what can be asked of police officers. Do you have it there, Mr Hughes?

  • Again, it's what inferences one might draw from that.

    The reference in point 2 to 100-110 victims, which went, of course, further than the royal household, one might draw an inference from that that others at News of the World must have been involved, because this was outside the bailiwick of Mr Goodman. In any event, this sort of activity would need more than one person to instigate.

  • Is that, without leading you, at least a possible inference, to put it at its lowest?

  • Sir, I think this email is significant in lots of respects. One, it's from Tom Crone, the lawyer. Second, it's to Andy Coulson. Thirdly, it refers exactly to what Rebekah Wade said, and what she said which had been told to her by the police. So the whole of the circuit was made clear by this email.

    It deals quickly with the point -- they have the words here "Clive and GM [Glenn Mulcaire] bang to rights on the palace intercept". That takes that out of the way.

    Secondly, in answer to counsel's question, 100-110 victims clearly means there's a whole other tranche of people. Six of us gave evidence in the case, but it clearly therefore was not going to be just the activity of the royal correspondent. Not touched, not followed up, not pursued, any of them. Completely illogical.

    And then, sir, the issue that I think is very significant, and which actually raises a matter, I think, of profound importance in three, note three: information given by the police to Rebekah Wade, Rebekah Brooks. The only payment records they found were from News International, ie the News of the World retainer and other invoices. They said that over the period they looked at, going way back -- not insignificant -- there seemed to be over a million pounds of payments.

    Sir, you'll remember that when the matter came to court, the only sum that was before the court was a sum, from recollection, of £12,300 or £12,500 pounds, which was the subject of a compensation order. The court sentenced Goodman and Mulcaire on the basis that £12,300 was the known transaction payment. It is clear from here and clear, as counsel knows, from other evidence, that there was at least £500,000 of certain payment by News of the World to Mulcaire.

  • Yes. If we can just interpose that, it's page 13 of this same bundle, isn't it, where there's a schedule of payments, and that which one can be wholly confident about is the bank transfers, £568,000.

  • And even, sir, up to the time of the investigation which led to the prosecution, so November 2006 -- if you take out even the 2007 figure and take out all of the 2006 figure, if you want to, up to the end of 2005 there was over £400,000 of payment by bank transfer. Mr Mulcaire was sentenced on the basis of an activity which said he'd received £12,300. I think the fact that the court did not have before it information which was clearly known, known to the police -- because they told Rebekah Wade -- known to Rebekah Wade, known to Tom Crone, known to Andy Coulson -- that that was not in the court's knowledge is a serious failure which meant that the court was asked to do a job on the basis of incomplete evidence, evidence which was in the knowledge of the police and they didn't bring to the court. I think that is a -- I'd say it's an unforgivable failure, it's a completely unacceptable failure.

  • Just help me, could you, Mr Jay. Am I confusing this with the evidence in relation to Mr Whittamore when I recollect that there was an argument that a lot of the work being done by one or two or both of these people was not necessarily linked to this type of activity? I'm just trying to remember the evidence.

  • You're not. The position before Mr Justice Gross on 26 January was that the £104,000, which was the last of the year-long retainers, that that was all apparently legitimate, and the £104,000 is probably part of that which we see at page 13.

  • Because there were a series of annual retainers which no doubt went up with inflation or whatever. It was perhaps only later that the police had come to the view that this £104,000 was not legitimate but rather part and parcel of the same illegitimate activity. But there's certainly a question as to whether, in the email, paragraph 3, they were assimilating all the payments and regarding each and every one of them as prima facie unlawful or whether all they were doing was referring neutrally to the fact that money passed hands to this extent. We're not sure whether it's lawful or unlawful.

  • Yes. Mr Hughes is entitled to draw what inferences he wants personally, but of course I just have to be a bit careful --

  • Sir, can I just add two last things in relation to that memo, that email?

    Obviously the second part of the email refers to the News of the World in general, rather than to Clive Goodman and Glenn Mulcaire in particular, and gives, as it were, the police explanation as at that date, or just before it, presumably, September 2006, as to why they weren't going wider than Mulcaire and Goodman. The bottom point:

    "They suggested they were not widening the case to include other News of the World people but would do so if they got direct evidence, say News of the World journalists directly accessing the voicemails."

    And then at the bottom:

    "They have no recordings of News of the World people speaking to Glenn Mulcaire or accessing voicemails. They do have Glenn Mulcaire's phone records, which show sequences of contacts with News of the World before and after accesses. Obviously they don't have the content of the calls, so this is, at best, circumstantial."

    This is obviously Mr Crone reporting at the time. Again, I'm trying to be a layman, not a lawyer --

  • You can be a lawyer as well, Mr Hughes.

  • Thank you. It seems to me that even non-lawyers would think it wouldn't be surprising if you might go to the CPS and say, "Is this fertile territory or a prosecution, and if so, what more do you think you'd need to get us over the 50 per cent threshold?" It must have been in the public interest to contemplate prosecution -- I can't believe it wasn't in the public interest -- so the only question would be the 50 per cent test, and therefore it seems to me that not looking, not opening the doors where the doors had obviously been identified, clearly was a positive decision not to proceed. You'll be asking the police about that in due course but I can't see any easy explanation as to why they didn't go down that road much further.

  • Again, as you say, this is the platform for further enquiry tomorrow, but the point at the bottom of the page, under (e), the sequence of contacts with News of the World, that may be generic, may not relate to any particular journalists.

  • But then further enquiries need to be done, maybe, to --

  • It obviously points to some enquiries which could easily be made, and nobody is suggesting that at this stage -- there wouldn't, at that stage, have been any need for the police to contemplate that they would have an unlimited number of people to investigate as potential defendants. It seems to me that the number of defendants on the evidence that we now know exist was limited. It wouldn't have been an impossible task and you wouldn't have had to interview every potential victim to get a specimen case against the other people. So it's not -- the argument that it would have been unmanageable, that it would have taken a huge amount of resources is not credible. Police take sample specimen cases and you could have had a specimen count against the other defendants on the basis of six of us giving evidence.

  • Thank you. The point on the next page of the email under item 10, maybe that speaks for itself.

  • I beg your pardon, I just put that away. Let me just retrieve it. Yes, I think it does speak for itself.

  • Although the "it", the penultimate word, one queries whether that's a reference to any prosecution or whether it's a reference to expanding the enquiry to incorporate other journalists. Either way, on either interpretation, it gives rise arguably to concern.

  • Yes, it speaks for itself, but it clearly deals with the question which was bouncing around in the public last year for a long time and in Parliament for a long time: who knew what and when? And this makes it absolutely clear, beyond doubt, it seems to me, that Rebekah Wade, Brooks, was alerted in September 2006 as to what was going on, and if this is correct -- and I have no reason to think Mr Crone, on this point, wouldn't be accurate -- was reporting that the police were going to contact "the boss" to see if she wished to take it further, presumably in terms of asking them to do something or internally taking action. But to say that unless the police didn't follow that up -- to say that she didn't know would be impossible, not least because the first part of the email confirms that the information comes from Rebekah Wade in the first place.

  • Thank you. To go back now to your witness statement, Mr Hughes, paragraph 25, you refer to what happened at the sentencing hearing, and of course we have the full transcript. Then Mr Crone's evidence to the Select Committee on 21 July 2009, which he was asked about when he gave evidence before us in December.

    At paragraph 26, you refer to a list which was compiled, analysed between the 10th and 12 August 2006. It included your name and 418 others. I don't think you have it in your witness statement as an exhibit, but we certainly have it at tab 94, which is in the first file of the judicial review material, which contains the 418 names.

  • Tab 94. This is the list of those potentially compromised, which was prepared between those dates. I've seen your name on that list. A lot of names have been redacted. You don't have this in front of you now, I think, Mr Hughes.

  • Then you refer, in paragraph, 26 to another document, which is the project list compiled on 23 November 2006, which is the one we looked at yesterday, I think, with Mr Paddick. That is tab 150-something. Yes, it's tab 157. So those are two different lists.

  • Yes. It seems to me the significant thing about the chronology, which I try to deal with in paragraphs 25 and 26 of my evidence, is that police seize Mulcaire's notebooks on 8 August 2006. They're analysed also in August, between the 10th and 12th, quite quickly and efficiently. The list was compiled then. That list had 418 other names, and my name, 419 names altogether. So by August, the names were known.

    Then, chronologically, we have the email which we've just been talking about, which was a September email, in which Tom Crone told Andy Coulson what was going on and Rebekah Wade was clearly reported to have been briefed. Then, as it were, it came back when the police finished their work on 23 November.

    Mr Crone was asked about this, obviously, in the Select Committee hearing, and -- by Paul Farrelly. Question 1398:

    "Was anyone else involved with Mulcaire?"

    The answer was "no".

    "Nothing else was found?" he put as a question to Mr Crone. Answer by Mr Crone:

    "No evidence was found."

    That clearly is not true, and when he wrote the email in September, that is an accurate statement, it seems to me, of what he knew at the time, which appears to be inconsistent with an argument that all this only became evident on 29 November 2006.

  • Yes. I'm moving on now in your statement. You've covered paragraph 28, which is the payment schedule, page 13 of the exhibit. You've probably also covered paragraphs 29 and 30, because paragraph 30 deals with the email.

  • There are obviously two issues. One is -- I'm sorry, I wasn't explicit -- if there had been illegal payments of 500,000, whatever it was, then the court would no doubt have contemplated confiscation orders of that sum rather than the smaller sum. And secondly -- and obviously, judge, I recognise that it's not certain as to the matching of the payments to the activity, but whatever the amount of illegal activity was for which there was payment, then there is an issue about that being the appropriate level of activity which should have been in the court's mind when it sentenced.

  • At paragraph 32, Mr Hughes, you set out your suspicions that the police had shut down this investigation, "much to the delight of News Group, and ignored evidence of longstanding and widespread criminality. I do not know of any good or persuasive reason why this should be and it makes me extremely suspicious."

    Your second witness statement, which we're not going to introduce today but may well come back to, deals with the possible ramifications of failing to investigate this properly in 2006.

  • If I can sort of put it in those fairly non-committal terms at this stage.

  • Perhaps I can make an equally non-committal one-sentence response for the judge.

    Sir, there are obviously issues about what might have continued beyond the time some of us gave evidence, in my case in 2006, and whether or not activity -- illegal activity continued. If it's appropriate, that raises issues which I'd be happy to assist the Tribunal with at a later stage in these proceedings.

  • Yes. I'm sure you understand, Mr Hughes, not only my anxiety about the present investigations, but also the focus of the terms of reference of the Inquiry --

  • -- to look at culture, practices and ethics in order to make recommendations.

  • Even if I open up any new line, I can find myself very simply disappearing underneath the surface, as I'm sure you'll appreciate.

  • Sir, can I say -- I have no wish to sound sycophantic. I'm really pleased that the Inquiry is here and that it is being conducted in this way, but I'm very clear it's about two things: it's about history and about actuality. It's about what might have happened but isn't happening any more and what might still, in theory or in practice, happen. You're fully aware of the need to address both of those. The terms of reference were specifically written. I know, sir, that that left that open and I'm keen that things are not assumed to be historic when they might not have finished in August or October or November or December 2006, and may have continued, but I'm conscious of the sensitivities about where and when that's dealt with in the Inquiry.

  • You could always come back in part 2. It's just --

  • No, I understand, sorry.

    Could I say, I used the phrase "much to the delight of News Group". That may have been unfair. I think the fairer phrase might be "much to the relief of News Group, things were not pursued further". It became -- the whole public presentation of 2006 was that it was a rogue reporter -- that was the phrase that people remember most -- and somebody who was employed as an agent. This was not the story of a rogue reporter and somebody who was employed as an agent, and the relevance of the police engagement is that it was a wholly different issue in the public interest if it was a systemic, generic, frequent activity, and the police should have seen that and dealt with that in the public interest, and that's much more serious than rogue reporters or freelance one-off agents.

  • May I ask you to deal with the point which arguably comes out of the contemporaneous police documents in 2006, that they believed, rightly or wrongly, that they would be closing down this operation by arresting Goodman/Mulcaire and bringing them to justice and that it wasn't necessary, as it were, to expand this as widely as it might have been expanded because the primary objective would be achieved, and, moreover, it would swallow up very considerable resources to expand the lines of enquiry. That, in my own words, may well sum up their thinking. Do you have a view about that or not?

  • Just two simply points, sir, if I may. One is I hope I indicated that I don't think it would have been the resource-intensive activity that is put as the argument why it wasn't pursued. I'm very conscious of police resources in London in particular, as a London MP. I wouldn't want them to be spending lots of time and effort on things that weren't going to be useful, productive, but you could, perfectly properly, have found six witnesses from the evidence, across the range of activity, in relation to the other prospective defendants without having to go and speak to 500 potential victims in terms of prosecution. It would have, I think -- it looks as if it would have secured convictions, even on what I saw then. Obviously I'm aware other enquiries happened later. So that's the first point.

    Secondly, in relation to this Inquiry's wok, there are a whole set of relationships that clearly occurred between the police and the News of the World and other major newspaper organisations, and these issues, decisions to prosecute or not to go ahead or not need, as the Inquiry's properly doing, to be looked at in the context of those other relationships and whether the decisions were affected by other relationships at a higher level between editors and senior staff at the News of the World and other titles and senior people in the Met.

    My fairly simplistic impression is there was far too close a relationship on regular occasions, not just on this issue, but as the senior police officer said yesterday, in relation to a whole set of issues. This Inquiry and Parliament's -- the government's determination to set it up I hope will clear out that stable because it's an unacceptable set of practice that has gone on. Public service and police officers must be free from buying and selling and acting illegally. We need to sort it for once to restore confidence in the police, to restore confidence in journalists doing their job properly, so good journalists aren't tainted by the activities of bad journalists, and to continue allowing a free press to work within the bounds of the law set by Parliament.

    So it's a great opportunity, and sadly, as somebody who has supported the Met police for a long time, they lost their way badly and at a senior level, and clearly were -- "corrupted" may be an unfair word, but were tainted and overly influenced by improper considerations, and I hope this Inquiry will be very robust about both its findings and its recommendations on that issue.

  • You don't ask very much of me, Mr Hughes.

  • I know. We have confidence, sir.

  • Mr Hughes, in your concluding remarks, paragraphs 33 to 37, you make many of the points you've just made. Are there any other matters there or elsewhere which you would wish to draw to the Inquiry's attention?

  • Just on the history, can I just summarise, sir, my points in paragraph 33? I'm able, having entered public life, and, like most of my colleagues -- you had the former Deputy Prime Minister here yesterday -- robust enough to be able to defend ourselves and take the rough with the smooth. My concern is about people who are, as sir, you indicated, the unintended victims of this activity, people who happen to be my family, my friends, my constituents, my staff, or in those relationships with other people. I know in relation to my case how harmful an effect it had certainly in one case on somebody entirely outwith political activity, and it could have had on others. That's the real mischief, not those of us who stick into the public -- step into the public arena, and therefore must expect, by definition, more interest and less protection than other people, and must expect to be able to -- I have a platform to deal with it. The people who are the friends and family of mine don't have the platform and they don't -- they shouldn't have to expect to have that intrusion.

  • You have spoken, Mr Hughes, of the overly proximate relationship between News International and the police. May I move on to the relationship between politicians and the press? Maybe I'll ask the same question I asked Lord Prescott yesterday: in your view, was the relationship between sections of the press and politicians too close at certain times or generally?

  • Sir, I've been in Parliament for 29 years as of two days ago. I was in opposition until two years ago. I therefore understood and expected that my party would be of less interest to the press than the other two parties who were in government in that period. I was clear from a very early stage that there was a growing unhealthy relationship between politics and the press, and it was -- I sort of always assumed, from my understanding of history from the last century, that there would be strong links, by and large, between the press barons and the Tory party. That was a sort of given from my reading of political history.

    I understood how influential tabloids in particular became. I saw the desperate effort, when I was in Parliament, for party leaders to gain favour with the tabloids. I saw Tony Blair fly across the world to have summit meetings with the Murdoch family. I regarded it as increasingly unhealthy. I didn't just do that; my colleagues and I said so. Matthew Taylor, when he was an MP, said so. Lord McNally, when he was in Parliament, said so. We sought to do things about this. We sought to toughen the regulations. I'm not going to bore you with the details, but there are evidence records of how often we tried to restrict the influence between the political parties and the press, and make sure that there wasn't a dominant position held by any individual paper or organisation and there wasn't an abuse of a dominant position.

    So there was for us, as liberals, a consistent theme, and the answer to counsel is that it didn't show any signs of abating. As every election draw nearer, the battle to get the most popular titles on your side would grow, and it seemed to me there was a lot of compromising of principles to do that.

    Can I add one thing? That's why this Inquiry is really important, because there was a consensus in Parliament last year. Everybody had been persuaded something must be done, in the words of the old cliche. It may be easier to say that across the political divide in the first year of a Parliament than it is when you're a year before a General Election, and the temptation grows again. For politicians I'm talking about, not for anybody else. And therefore the really useful thing would be if we -- following the Inquiry, any prosecutions that happen by the police can come back to this matter in Parliament, because I think there are ways in which we can --

  • I would hope it wouldn't have to wait for the conclusion of prosecutions --

  • -- for Parliament to consider where it wanted to go, and of course it will be for Parliament, ultimately --

  • -- depending on the recommendations that I make. But nobody should misunderstand the fact that the reason that I have pressed -- and people around this Inquiry room look rather invigorated after two weeks off, but in the months that have gone and in the months that will come, and put myself under pressure, is because I am extremely conscious of the importance of time. So it will then be for you and those of your colleagues in Parliament to decide whether, and if so, in what way, matters should be taken forward.

  • Sir, can I be -- I absolutely agree about that. I will, if I may, reveal a secret which is perfectly proper to reveal but hasn't -- sir, I have made it clear to the Deputy Prime Minister, my party leader and my colleague that in my view, in this parliamentary session that will begin next spring, May 2013, space should be reserved now in the forward-planning of Parliament to deal with anything that requires legislation, in good time before the next General Election which is scheduled for 2015. I'm very clear about that for just the reason you say. I understand exactly the point about acting off the back of the Inquiry, not waiting for prosecutions. Some things may not need legislation -- perhaps in a moment I could share two thoughts about that -- but for those which do, Parliament must absolutely not bottle it and we mustn't run away from it, and there will be some who may -- and I hear little voices already -- who will say, "Don't be nasty to the press. They're lovely. We've got to love them. The free press is important."

    Of course it's important, but the press must act within a framework of proper behaviour and the police must act and Parliament needs to be ready to act and I hope there will be the space available for legislation in the parliamentary session 2013/14, so that's all in place well before the election.

  • Before I ask you to develop your point about recommendations, may I just pick up on two points? You said that there was a compromise in principles in wooing the press, particularly before election. Can I ask you just to expand on the compromise in principles, please?

  • I make the point generally. It's obvious that everybody in a political party -- and I don't pretend to be innocent of this myself -- seeks to be presented well in terms of policy and actions in local and regional and national press. Of course we do. And we seek to give them things that they will regard as good reasons for commending us. In the great public debate, they're very important players.

    But by definition, it's not unimportant to try and get titles that sell 1 million, 2 million, 3 million copies to be on your side probably even more than the titles that sell 100,000, 200,000, 300,000. Bluntly, we're talking about broadsheets against tabloids, and therefore you temper your -- it is clear to me that parties temper their policies and their presentation to make them have maximum popular appeal. That's obviously a perfectly proper thing to do, but sometimes I sense that they go in the wrong direction for populist reasons.

    I'll give one example, if I may. In the last Parliament, we had the Labour Party supporting advocating identity cards. They'd always been traditionally a party quite committed to civil liberties and so on and so forth. They moved to be a party which wanted to be seen to be strong on law and order and so on. That was part of that package. I think, I would say to my Labour Party friends, that became a compromise of their principles. They went the wrong side of the line to be appealing so they could appeal to the, as it were, law and order press.

    Now, that may be unfair, they may say that wasn't the reason at all. I only give an example because you asked me to. But the relationship -- of course we have to talk to journalists, talk to editors, be interviewed by them, engage with -- I'm not arguing for any monastic -- it would be nonsense. Of course we do and we should do and we should be subject to their scrutiny, and I'm absolutely not asking for a less robust press and less active engagement, but there shouldn't be people going in through the back door into Downing Street, bluntly, as editors. If they want to go in, they should go in through the front door, or they should go in through the front door at Chequers or wherever it might be, and we need to have a system where it's open and transparent and we know the score.

  • Are you, Mr Hughes, able to share with us any examples of what one might describe as covert, subterranean press influence operating on government policy or ministerial appointments?

  • On ministerial appointments, I can't immediately think of an example, but if I may, I will reflect and if I can -- I hadn't thought for that question and prepared for it, so if I can let you know how I --

  • The first question was on policy generally. Yes. I mean -- did you ask covertly rather than --

  • Well, a newspaper may have an active campaign, as indeed, to take a neutral example --

  • Or the Times with cycling. That's all above board.

  • But I'm looking at the more subterranean --

  • Well, the issue that has worried Parliament most is dominance of any particular organisation in the market. That's been the issue, and the suspicion has been -- and I haven't been in government in those discussions -- that News International has been seeking to make its case privately as well as publicly to be allowed to have as little restriction on acquiring interests as it would wish for its own commercial reasons. I have the strong view that we need a strong regulator but also we need strong controls of share of the market. That's an example where I'm clear there has been both public and private lobbying, and that's a really important issue because it goes to the heart of the freedom and -- of a free and diverse press and diverse media, particularly television, which is obviously so important in this day and age.

  • Thank you. Then you were doing --

  • Sorry, PS -- and I'm not trying to be overly controversial, but -- I'll be careful how I phrase this so I don't have hailstones rained down on me as I go out of the room, but appointments of people to serve government who come from media backgrounds are, in principle, good things, because you need people in government service who understand the way the media work. It seems to me they should, however, be carried out carefully, mindful of the risks and the disadvantages, and it may be that they haven't always been so.

  • That was very general.

  • It was a very general comment.

  • You give an example of -- I don't think there's been a secret about it -- the pressure not to implement the enacted law remitting to the amendments to the data protection legislation.

  • That would be fair, sir.

  • Recommendations, Mr Hughes. Possible ways to reset, recalibrate the relationship between politicians and the press. Might you share those with us, please, Mr Hughes?

  • In this regard, Mr Hughes -- and I've said this to a number of people -- don't consider yourself required to answer something on the hoof if you want more time. This particular area is not one that I see any legislative solution to. It is very much more nuanced than that. But it is critical that whatever way forward we go carries with it the confidence of politicians of all persuasions and the public. So I say to you, as I've said to others: by all means answer Mr Jay's question if you're ready to now, but don't feel thereafter that you are inhibited, or indeed any of your colleagues are inhibited -- I would prefer it collectively rather than individually -- from providing other ideas, if you follow.

  • Of course. Sir, that's very helpful. I can be brief now but try to be helpful now, as well as take your guidance about, as it were, supplying you with considered thoughts.

    The first is actually an ability to say -- I am very happy, as it were, to give my general response being the position we, as a party, took when we addressed these matters collectively, most recently last year to our conference in the light of the events of last year. We passed a resolution. I can supply a copy to counsel if the Inquiry hasn't had it.

    If I can just summarise -- it will take 60 seconds -- what the key points are: to have a more independent press regulator, independent of editors and governments, particularly with four powers; an ethical and editorial code and a kite mark; to require of the media organisation to comply with the code, or their staff obviously to do so; have a procedure for investigating all breaches of the code, and then appropriate sanctions, including financial penalties large enough to act as a deterrent, and the power to ensure that apologies and retractions are given due prominence.

    Can I pause there. One of the things I have felt most aggrieved about, not only on my own behalf but on behalf of others, is the mismatch between what turns out to be an untruth propagated on the front page, which could damage a personal life or family life or a career, and the publication of the correction, the admission that it was wrong. You can never go back, you can never undo it, the damage is done, but at the moment we have a wholly inadequate way. And I've had conversations with editors of papers and the rest about that. They will always be nervous about something that would give equal prominence to the "we was wrong" as the other, but the damage by a flagrantly wrong --

  • There's a commercial dynamic is clearly, isn't it?

  • The story on the front page is fine.

  • Nobody will buy a newspaper if the front-page headline is "We were wrong".

  • No, and of course I understand that. But for the individual -- take the case -- you have a witness coming before you who was presented in the press as being inevitably guilty of certain serious offences and in the end clearly was not even involved and somebody else was found and charged and convicted and so on.

  • Effectively on his own admission.

  • Effectively on his own admission, and it's impossible to put right those wrongs in the public mind, because the public remember the allegation. They don't often remember the outcome.

  • I hope that they do in his case.

  • Yes, I hope they do in his case too, and I think the Inquiry will be helpful in that respect and other things have been helpful. But there are many examples. We need to deal with that. That's a really serious issue and I hope, sir, you'll give it due prominence.

    Secondly, to strengthen the rules on fit and proper ownership and ensure corporations as a whole are held to account. That's an issue I've taken up with Ofgem, to make sure it's not just individuals but corporations.

    Yes, to introduce custodial sentences for breach of the Data Protection Act, as we have discussed; widen the strength of the powers of relevant independent regulators; penultimately, reinvigorate legitimate investigative journalism in the public interest by providing affordable and effective defence, in defamation cases, on matters of legitimate public interest but based on a requirement to issue a suitably prominent correction or retraction of untrue defamatory statements made without malice or recklessness.

    And then support of the law on privacy and respecting the independence of the judiciary in getting that right in the courts and obviously holding to the European Convention.

    Just one other thing in answer to counsel's question. I know there has been a proposition put by the new chairman of the Press Complaints Commission, who is somebody I respect and is of serious experience, that basically if I can shorthand it, there's a contract arrangement set up. It seems to me there's a flaw -- sounds good, but it seems to me there's a flaw in the contract deal, which is that you can't make people sign contracts, and therefore somebody could say, "No, thank you, I'm not going to play ball." I suppose you could require every media organisation in the country to say everybody must sign the contract, but it seems to me there are problems in practice on what is a superficially attractive idea.

  • You're not saying to me anything that I've not thought about. The trick is to find the balance without mandating participation, which might impact on freedoms that we all hold important.

  • But by encouraging with advantage and carrots to those who do become involved.

  • And this is a long-running issue which is not going to be solved quickly.

  • No.

    Sir, I agree with that. Can I just draw one parallel? For a long time in the 1980s and 1990s as an MP, I received complaints about bad practice by solicitors, and I used to take them to the Law Society and the Law Society, as you will well know, had its inquisitorial inquiry processes. Bluntly, they commanded no public confidence in those days -- I'm not trying to be unfair to solicitors as opposed to other professions -- and eventually there was pressure to make it more independent and more robust and set it up independently.

    It seems to me the Press Complaints Commission has, in my time in public life, not commanded the confidence of the public. It is therefore important that we end up in a position that is not following public opinion but is at a place where public opinion would want it to be now and in the years ahead, and therefore it's important, as it were, to be ambitious about where it should be.

  • Oh, I have plenty of ambition, Mr Hughes. The trouble is how I'm going to satisfy it, because the difference between lawyers or opticians or doctors and journalists is that the state is entitled to say, "You can't practice as a lawyer, you can't practice as a doctor", whereas a journalist is exercising a right of free speech -- I'm not telling you anything you're not very well aware of -- and therefore it would be anathema to say, "You can't do that."

  • So the problem is to find a way of squaring that circle.

  • Yes, and I'm very conscious, in the age of social media, that there are far more outlets where people can say that what he like. It seems to me the two things that are crucial, if I may respectfully end with this, are: firstly, that there is a public interest defence allowed in the debate on behalf of journalists who --

  • Can I just ask you to explain that a bit? Do you mean a public interest defence in civil law or criminal law or both?

  • I would say in both. Potentially -- certainly in civil law. We've never gone down the road into criminal law with that being a defence so far. The obvious case might be MPs' expenses, as a general subject, where clearly some of the information -- I don't know. It may have all been acquired -- some of the information may have been acquired illegally. There may be a public interest defence. That's the area that, it seems is to me, you are rightfully to address.

  • Yes, but couldn't you do that by enunciating a prosecutorial policy, which is the very reason that I invited the DPP to give evidence a few weeks ago, to consider that very issue?

  • Yes. The answer is you could, and obviously we've had a fairly established DPP policy which has, in my view, worked generally fairly well. More than 50 per cent likelihood of prosecution and in the public interest. That seems to be the right test in general terms. I don't think that's the wrong starting point.

    But the other -- if I may, because they're linked together, the other issue that I think, quotes, "out there" the public want to be addressed is the unequal opportunity to correct untruths, which I've alluded to a few moments ago.

  • Yes, I'm with you on that entirely, again, as a balance, for the commercial reasons we discussed.

  • But I am keen to press you on your view as to the criminal law. It would indeed be a rather remarkable outcome of this Inquiry -- I'm not saying it's not possible -- which is looking at what may be said to be criminal activity, may be, allegedly, with all the caveats -- for me to be recommending that what is presently criminal shouldn't be criminal. That would be rather unusual.

  • No, I'm not expecting you to do that, and I can't think of any particular things that are currently criminal that you would be likely to recommend.

  • If you provide a public interest defence to crime, then you are potentially doing that, aren't you?

  • Sir, just so I can be clear, it seems to me that the occasion when you make the public interest argument in the context of criminal law would either be in mitigation or in the case -- official secrets is the obvious example -- where you put the case to the jury and the jury, as we know, on famous cases have occasionally decided not to convict because they have formed a view that the public interest is greater than --

  • Yes, that picks up a debate -- an exchange that I had with Mr Rhodri Davies.

  • Who was cross-examining, I think, Mr Graham, the Information Commissioner, about the horror of journalists being sent to prison for two years for a data protection breach and the proposition that I put to him was that first of all, in that regard there is a defence, but ignoring that, the hurdles are: the prosecutor has to decide it's in the public interest to prosecute.

  • The jury, doubtless, would be directed -- and the history of Mr Ponting is very well known but even if the jury take the view that actually the law is there to be observed, then you still have the judge available --

  • -- who sometimes exercises his discretion in ways that people don't object to --

  • -- to be able to say, "Well, I understand why the prosecutor did not think it was in the public interest not to prosecute, I think that was entirely appropriate", or not, whatever he thinks, "but this is cusp-type material and therefore this ought to be reflected in the penalty."

  • Sir, just to clarify that -- I don't want you to misunderstand -- in the context of the criminal law, those are the three places where the public interest argument can run, and it seems to me perfectly properly. Absolutely proper that the DPP or the CPS says, "This is a public interest question. We're not proceeding." Absolutely proper that the jury are addressed on the question, and then at the end, the judge has the case --

  • Or it may not be, actually, because -- well, you'll remember the authorities on it.

  • And lastly, it isn't an argument, however -- to go back to your conversation with Mr Graham, it isn't an argument for not having on the statute book the opportunity to send to prison either because that case merits it itself or because you do it as an example, for a short period, for severe breaches of the abuse of personal information.

  • So there is a public interest opportunity, it should stay in that context. But no, I wouldn't want you to recommend that will suddenly lots of existing criminal law disappears because it's not in the public interest for it to be there.

  • Your recommendations and your resolution, which I had not seen and which I would like to see --

  • I'll submit formally, if I may, sir.

  • -- doesn't cope with the final issue that Mr Jay asked you about, which is what one does to construct a way in which the influence which you've spoken of in relation to the press and the political class can be addressed.

  • Sorry, I beg your pardon, I didn't address that. I would like to very briefly.

    The answer is: this is something that should be negotiated on a cross-party basis. It is clearly something, as long-term policy is always required to be, that will stand the test of time in cross elections and changes in administration, and it needs to be done obviously in consultation with friends in the press, but at the end of the day, I would hope it's something that would be secure, both in the first place because it was seen to be agreed across the political divide, across both houses, but secondly, that that's the way you review it as well. So it's taken as read that, as it were, this can't be the property of an individual administration of an individual colour to change at its whim.

    Now, the problem with us constitutionally is we don't have a threshold other than the simple majority safeguard for legislating. Of course I understand that, but we could -- we manage other things in which we don't change them without broader consensus than just simple Parliamentary majority at the time.

  • In the same way that I told the Press Complaints Commission to carry on work to think about what might be done, and I've told many editors, as they've given evidence with ideas, to keep thinking, I say to you -- and indeed to your colleagues -- that this is a very, very important topic.

  • It is your problem, not mine -- exactly what I've said to the editors -- and therefore it is important that a solution is found that works for you, but it has to work for me as well in the sense that I, for the purposes of this Inquiry, represent the public.

  • And if a political resolution of ways in which the culture of which you've spoken can be changed or addressed, can be found and suggested, I will be very, very interested to hear about it.

  • Sir, can I make one last comment which is this: politics and Parliament is in part waiting for the Inquiry to be complete so we can hear what is said, to you and --

  • By definition, we would be foolish, as it were, to judge how to proceed until we know the range of the answers to the questions. We do now have a much better set of systems in place. The Select Committee has proved itself to be one. I think we do have mechanisms available, which are that in effect you could have a code or regulations or whatever which would only be initiated or changed if the Select Committee had agreed, just as we do with appointments in some cases now. So there are ways of doing it.

  • I agree there's a chicken and egg thing here and you could say, "Actually, we're waiting for you to tell us."

  • That's entirely fair -- I'm not shirking my responsibility -- but it would be a complete waste of time and energy for all of us if I were to say something and for you then to say, "Well, that's very interesting, that this Lord Justice of appeal has come up with this. Actually, he demonstrates he's not a politician."

  • You don't need to prove that to me; I'm not.

  • Sir, I understand our responsibilities. I've said to you I've already put in a bid that we have time available to legislate if we need to, and I'm clear that we need to be ready to respond with a system that works in collaboration, but we need to hear what everybody says to you first so we're not ignoring things before we do that finally.

  • Yes. But as regards this last topic, the relationship between the politicians and the press, then I would have thought you've probably got a pretty good idea, without hearing more witnesses. But I will carry on hearing the witnesses, and the reason you've had this now is because you're here now, rather than coming in the next module, which will start in May.

  • Of course, and some of us are really glad at least to have this platform because we have been making this case for 25 years and more.

  • Thank you very much indeed.

  • Thank you especially have.

  • Right, we'll take a break.

  • (A short break)

  • Sir, the next witness today will be Ms Jacqui Hames.