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

  • Thank you very much. Sir, I apologise that our submissions were sent and distributed late.

  • No, well, I understand that the time has been difficult for you and I'm sorry that I couldn't accede to putting off the argument, but you will understand why not.

  • Indeed.

    Sir, what we attempted to do in relation to the matters which you are currently considering, the abuse of process and contempt, is to simply summarise the legal principles as we see them and to, I hope, give some assistance to you in that way, although I'm sure much of this, if not all of it, is very well-known to you.

    I think the conclusion which we come to, if it is of assistance, is in paragraph 6 of our submissions, where we respectfully suggest, of course, that you have a statutory Inquiry with a duty to fulfil your terms of reference as fairly and comprehensively as you can, that they raise matters of considerable public importance. When one reviews the authorities on abuse and one looks at the authorities in relation to contempt, and of course we're dealing here with statutory contempt under section 2 of the 1981 act, then we would respectfully suggest that it should not be too lightly assumed that the existence of a police investigation will necessarily require the curtailment of legitimate and relevant avenues of inquiry, although of course all the matters of caution, which your Lordship has referred to, are matters which constantly need to be borne in mind, there is no doubt about that.

    The issue perhaps is this: Mr Garnham really raises, as we see it, different risks. He spoke about causing a risk to the police investigation. If that is adverting to the risk of, in some way, interfering with the operation of the investigation and there is some special operational risk which arises on the facts, then obviously that is something which one would expect there to be private communication about between Mr Garnham and counsel to the Inquiry.

    It seemed to us that much of what Mr Garnham was addressing your Lordship about was in relation to the risk of prejudice. That is to say, either some application being made to a judge -- in the event that there are criminal proceedings -- for a permanent stay of those proceedings as a result of fair reporting of the Inquiry hearings, and as a result of prejudice coming out of that reporting.

    In our respectful submission, that risk is, we would respectfully suggest, overstated. When one looks at the jurisprudence on abuse of process, in our respectful submission that is a risk which is unlikely to arise.

  • I don't think Mr Garnham would disagree with that. What he would say is: at this stage, I have to be seen to be taking every point, because otherwise somebody will say, well, you were complicit in all this, you let it all happen and therefore it's all your fault.

  • I quite understand that.

  • The responsibility for whatever I do will be mine, it won't be Mr Garnham's or the deputy assistant commissioner's.

  • Yes, indeed. Of course, at the end of the day the kind of prejudice one would have to be talking about is the prejudice which Lord Phillips adverted to in Abu Hamza. It has to be so extreme, at the very far end of the spectrum, if one is to come to the conclusion that the normal processes of the criminal justice system can't accommodate it.

  • Of course, what Mr Garnham does say, and there's something in this, is that we can control -- because the criminal law hopefully can control -- what is published in relation to those in respect of whom the proceedings are active. But it is rather more difficult to control that which enters the Internet, which is of course one of the issues that I have to address in some way, and I'm hoping that somebody will have some ideas about that, still less in private communications that then enter the public domain, still less that which actually happens within the cloak of parliamentary privilege.

  • Yes. As far as the Internet is concerned, of course, that is accommodated by special directions of course to sitting jurors, so whatever may be on the Internet is an access which they should obviously not --

  • Of course, all of these are value judgments. Mr Garnham obviously makes this application and one cannot deal with the application on a fact-specific basis. One can, however, look at the legal principles involved, how courts traditionally deal with the presence of prejudicial publicity in the public domain when one is dealing with a current criminal trial.

    Our submission simply is: on the basis of considerable dicta now from courts of many different constitutions, both in this country and around the world, this is not an unusual position, it can be accommodated, and in our respectful submission, it is right, obviously, that the matter is being considered.

    Your Lordship, everybody, will have, I'm sure, regard to the risks involved, but they are not insurmountable.

  • Yes. Of course, it raises another question, doesn't it, which is: to what extent in any event it is necessary to go. That is what I was just postulating to Mr Garnham, but actually, if one were doing it all together, then one would look at all the facts and be prepared to look at individual conduct and make findings of fact about individual people to get a picture. In an exercise like that, that in any event will take an extremely long time, not least because, as you become microscopic, then all sorts of other considerations arise of fairness. Whereas there is a macroscopic approach which takes me into the issues about which I'm required to report within the year, but still leaves open the microscopic for later examination, should it be necessary to do so.

  • Do you feel -- or is it the submission of your clients -- that to adopt that latter, the macro rather than the micro approach, would undermine the validity of the work that is being undertaken in relation to the recommendations?

  • I would need, obviously, to speak at greater length with them on that subject, but my immediate response is that it would not.

  • That's interesting, thank you. Yes, thank you very much indeed. Mr Rhodri Davies?