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

  • Thank you, sir. I should say that for too today's purpose, unlike last time, I represent both the MPS and the CPS.

  • I don't repeat the submissions that we made collectively either on the 26th or on the 28th in writing. We stand by all of the points made in those two documents, sir.

  • Yes. Can I test that, but at some stage. I'll let you run up to the wicket first, there are some concerns I have about a number of the things you've said, but develop it as you wish first.

  • Sir, thank you. You will understand that I am in a difficult position in one important respect. Neither the MPS nor the CPS can safely enter a debate about abuse of process and perhaps contempt by reference to the facts of the particular cases with which you're concerned.

    We can't be contending before you that certain actions would ground an abuse of process argument when the CPS may have to argue for the exact opposite in some other tribunal.

  • Let me make it abundantly clear. It is not in the remotest bit surprising that the police and the CPS should wish to argue for a default position that was as minimal as could possibly be devised. It doesn't surprise me that you do that.

  • It does not involve, in my judgment, a concession of any sort that to exceed the minimum will give rise to the remotest possibility of a successful argument on abuse of process.

  • Sir, I'm grateful for that indication, but our concern is that some other judge in some other court may be invited to take the submissions that I make on behalf, particularly of the CPS today, as a useful starting point for submission of --

  • I think that would be utterly to misunderstand what is going on. I say that publicly on the record to identify my anxiety that you do put the case as forcefully as you feel it can possibly be put, in such a way that does not in any sense suggest that less -- that a decision that I make necessarily cuts the line as to what you can argue or as to what a court may articulate.

  • I'm grateful for that and I'm particularly grateful that you say that publicly, because that will provide some comfort, but nonetheless both the MPS at the senior level and the Director of Public Prosecutions have given careful consideration to the extent to which we can make submissions on the facts of this case without running unnecessary risks. As a result the line I am going to draw is a fairly firm one in not going into the facts of this case.

  • I will make submissions in the generality, but not specifics.

  • I understand that, and I don't ask for submissions on the specifics. I will test the generality. Of course, ultimately I have my own statutory responsibilities and my own statutory powers.

  • It would be an abrogation of those responsibilities if I were simply to delegate or defer the decision-making to the police.

  • Absolutely, and I don't for one moment invite you to do that. Nonetheless, we are in the peculiar position, because of the stance that I am on instructions taking, that you will have to do that testing against the specifics for yourself without receiving from the MPS and the Crown Prosecution Service detailed factual submissions on the circumstances of this case, because we will not do that.

  • That has to be a matter for us on this occasion, sir.

  • Yes, yes, I can't make you say anything. I can make you do lots of things, but I can't make you say anything.

  • No. Sir, you understand the starting point of these submissions?

  • The short response to the invitation you issued last time is that we say the Inquiry ought not, as a matter of principle, rehearse any evidence during part one that's likely to prove central to the criminal proceedings. We say that whether it is by way of public disclosure of key documentation or by receipt of oral evidence.

    We say that to do so will create a risk -- and that's the highest I'm prepared to put it -- of prejudice to the investigation and to any subsequent criminal proceedings.

    We say that, with respect, neither we nor you can pre-judge what another judge will make of the effects or significance of evidence that has not yet been heard, but which we're debating in the abstract. We say nonetheless that the risk is a real one.

  • I can do a bit of pre-judging, can't I, because there's a wealth of authority on the subject?

  • There is, sir, but as we in the note all that authority is backward-looking and you're forward-looking.

  • Yes, I know, but even I am in a position to visualise what I might do and what I might say and put myself then in the position of a criminal judge reviewing the law as it exists to decide whether there is a risk of prejudice.

  • Yes. What is difficult for you --

  • It's not my job, of course, ultimately it will be a different judge to make it, but that's what judges do all the time.

  • What I say is difficult for you to do is to anticipate what answers your team will obtain from the questions you put based on the documentation we're talking about.

  • You might know what they are going to put and you might be in a position -- sir, you will be in a position to control that, but you're not in a position to control the answers you receive, and it's the answers that concern us most.

  • Yes, although everybody will be aware, won't they, of the provisions of section 22 of the Act.

  • Yes. Absolutely. Nonetheless, sir, although they are, that still doesn't ensure that you can know what answers they'll give. You can't, with respect.

    However scrupulously that provision is applied, we are crystal ball gazing when it comes to determining what answers you are going to get.

  • I absolutely agree. Somebody may say, "I exercise my right not to answer that question", or somebody might give an answer.

  • Or somebody might say, "Not me, guv, but it was somebody else and I'll give you the chapter and verse".

  • All of which, we say, has certain risk consequences. It is for that reason that we make the submissions in the way we do.

    You will have seen, sir, I hope in a footnote to our submissions reference to the recent Divisional Court case of Mousa v Secretary of State for Defence. We say that captures pithily in a paragraph the caution that is normally exercised with regard to running contemporaneously public inquiries and criminal investigations. May I read just that paragraph, sir? I can pass up a copy of the authority if that helps.

  • Yes, I don't think I have that one here.

  • Can I pass that up to you? I'll also pass a copy of that to Mr Jay. No, Mr Jay has a copy. (Handed).

  • Thank you. Thank you very much.

  • This is the Divisional Court consisting of Lord Justice Richards and Mr Justice Silber deciding the application for judicial review of the Secretary of State for Defence's refusal to hold a single public Inquiry into allegations of abuse by British servicemen in Iraq. I only need to show you paragraph 129, sir, to make this general point.

    This is part of the reasoning why a public Inquiry was not ordered on the facts of that particular case: the court said this:

    "Fourthly, if a public Inquiry were established now, there is relatively little that it could achieve pending the conclusion of the IHAP."

    Which was the independent investigation into the events in Iraq.

    " ... investigations and any ensuing prosecutions. It must not be forgotten that serious accusations of criminal misconduct have been made against British soldiers, both the Baha Mousa Inquiry and the Al-Sweady Inquiry followed the conclusion of relevant criminal proceedings. There would be an obvious risk of prejudice to criminal investigations and proceedings if an active public Inquiry ran in parallel with them.

    "Moreover witnesses implicated in alleged abuse would be unlikely to give evidence to a public Inquiry unless they were first given immunity from prosecution."

  • Yes, but there one has to look at the dynamic. Here an active public Inquiry is running in parallel with a criminal investigation, whether we like it or not.

  • The one thing I can't do is effectively shut up shop.

  • No, and nor do I invite you to do so.

  • I'm not so sure about that.

  • No, I most certainly don't. I invite you to conduct part one of this Inquiry with a weather eye on the fact that there are contemporaneous prosecutions, and as a result --

  • No, pausing there, absolutely.

  • As a result -- and I will be delighted if I receive a similar enthusiastic agreement to this proposition -- to introduce into the public arena new material only with great circumspection.

  • I don't think I necessarily disagree with that. Great circumspection is what I'm trying to adopt in relation to all aspects, because there is a real public interest in the police investigation, but there is a real public interest in moving through this Inquiry to deal with the recommendations within part one. Recognising that the consequence is, as I have said before on a number of occasions, in some regards to put the cart before the horse in relation to the investigation of facts.

  • Of course that's right, sir, but the part one was, it would appear, crafted in a manner to try and avoid the difficulties that now bubble to the surface, and we would invite you in consequence --

  • Not avoid; minimise, I think.

  • Minimise. Very well, I am happy to adopt that, sir.

  • We would invite you to reflect that in the way in which part one is conducted, by ensuring that the level of detail to which you descend to describe your narrative is kept at a high level.

    I am immediately troubled by the difficulty I identified for myself of not straying into the particular facts, but I think I can probably say this much, that the sort of documentation that counsel to the Inquiry were indicating to us was likely to be opened by them raises precisely these risks.

  • This was indicated to you when? Some weeks ago?

  • Yes, I understand the point.

  • Sir, I say nothing further about that.

    Our concern, in case there should be any doubt about this, sir, is not simply the prospect of pre-trial publicity generated as a result of this Inquiry. In other words, we are not looking simply at whether there is a risk the media might go beyond fair reporting. We are also concerned with fair reporting; in other words, with the media entirely properly reporting what happens in the course of this Inquiry because they are reporting what your team have made public.

    There is in some of what Mr Jay says, it seems to us with respect, an assumption that our attack is directed solely on the risk of irresponsible reporting. It isn't. It is the more difficult to advance in any public forum, the suggestion that this Inquiry itself may, by making public that sort of material, cause a risk to the police investigation and to subsequent criminal proceedings. I don't shrink from making that, but it does mean that we would invite you to consider the question at two levels: one, what's the consequence of what I as chairman of this Inquiry am going to do, and two, what's the consequence of both responsible and irresponsible reporting of what I do?

  • Sir, we've set out in a little detail what we say about abuse of process in our written submissions and I'm not going to repeat that. It won't improve the argument by doing so.

    What we would say in summary is that there is, as yet, and I underline the words "as yet", no rule that pre-trial publicity is of no concern to a court considering an abuse argument. It's right, as Mr Jay points out, that in Abu Hamza, the court went a long way to suggest that it would be rare circumstances when adverse extreme publicity fans such a case. We accept that, but there is as yet no rule that it never will.

  • No. If you've been in one of these cases, as I have. One of the ones that some people have cited, and you are presented with hundreds of pages of press reporting, you have to compare and contrast that with the way in which we conduct our criminal justice system in the country. I agree there is no rule, but the experience of those who have been involved in criminal trials -- as I have for some 40 years -- is very, very telling.

  • I don't seek to suggest otherwise, sir. That is plainly -- Abu Hamza was a hard case for the prosecution, and they were successful, because there had been extraordinary publicity in that case. I recognise that and don't seek to invite you to do anything other than follow it, all I submit is that there is as yet no rule that it is irrelevant.

  • You will have to, sir, with respect, consider those points against a background of the twin point I made earlier, that the concern is not just irresponsible reporting, but also responsible reporting of what you have done in the course of adducing evidence or having Mr Jay adduce evidence to you for the purposes of part one.

    We also refer in our written submissions to the issue of fade and fading memories and how important that often is. It's a matter for you, sir, and I say nothing more about it than these points in abstract: That the question of fade, especially when it's being considered in prospect rather than retrospect, is difficult to gauge, but one can with confidence submit that on the facts of this case the issues that are likely to be made public as a result of your Inquiry are going to stay in the public consciousness, aided, perfectly properly, by the press, for many, many months. This is not going to be a two-day wonder on the front page of a couple of tabloids. This is too important for that, and we invite you to bear that in mind --

  • Yes, but that runs literally counter, doesn't it? Because it's too important and therefore it will generate stuff, but you have to be very careful and not do very much because of the risk that you will create. Therefore, I am conducting this Inquiry at enormous expense not just to the state, but to everybody who is involved, and I have to be very careful to make sure that it's worthwhile; haven't I?

  • You have, sir, but behind the decision to divide it into two parts lay recognition of that, and that's why we say in part one you have to be extremely careful as to the detail to which you go.

  • You don't disagree with my view that part one has to create a narrative upon which I can base the recommendations, if any, that I might make.

  • Otherwise, everybody will say, "Well, this is all ..." I say everybody, I don't quite mean that, but a lot of people will say, "Well, this is all hypothetical and theoretical and not grounded in reality" --

  • You can largely do that, we would submit, sir, by reference to material, and there's a vast amount of it, that's already public domain material. What is being contemplated by the Inquiry team is putting into open a great deal more material which is critical to the investigation the police are conducting and will be important were there to be any prosecution.

  • The police are investigating the activity of specific individuals. I'm not asking numbers at this stage, but specific individuals. You're suggesting that every single piece of paper I or may be interested in, it's Mr Jay who is conducting the case before me, that he may be interested in, should be pass beforehand you and every single name should be filtered through you to make sure there's not a risk, whether or not that person is the subject of arrest and therefore proceedings against him are active in the Contempt of Court Act, should result in a self-denying ordinance that we can't go anywhere if you put up one of those wonderful red flags.

  • In our 26 October written submissions we offered, for the purposes of discussion with Mr Jay, a suggestion of how this might be managed at a practical level. I don't for one moment suggest that's the only way in which it can be done.

  • No. Your recent -- which is contained in the joint submission now, would actually lead to a risk, I appreciate you say it wouldn't really happen, but a risk that every single piece of paper would retire a separate ruling and could be the subject of a judicial review. This could be the work of a lifetime.

  • It depends on the extent to which Mr Jay intends -- how deep he intends to go with this. I mean, our understanding was that it wasn't going to be a vast quantity of new material as yet unseen by the public that was going to go into the public domain. If that is right, the sort of proposal we advance would be an entirely practical one and it wouldn't cause swamping at all.

    Most of the documents, I don't suppose they're all, because I don't know what Mr Jay has, but most of the documents have come from the MPS. They are material that we are already looking at. As a result, the task of identifying whether or not releasing that into the public domain is one that can be -- if the volume is not as vast as I think it is, can be done relatively quickly and efficiently.

    We're not suggesting -- as you will have seen, sir -- that this is parked in the department of some small number of junior officers who may or may not get around to complying with Mr Jay's requests. Sitting in front of me is --

  • I know who is sitting in front of you.

  • -- a lady who you probably recognise, sir.

  • Yes. I'm very grateful to her for taking the time to come to listen to this when she has many other things to do.

  • She has, but this is important to the Met Police as you will understand. She has indicated to me, to Mr Jay, that she personally will arrange that exercise to be done. That demonstrates not only the importance with which the Met regard this, but also the seriousness which we will apply to consideration of this sort of material Mr Jay wants to make public. Nothing that we have learned from the Inquiry thus far suggests that Mr Jay proposes the wholesale making public of huge quantities of material. On the contrary. He looks for the critical material and we understand why he would do that and we will help him manage that process.

  • What I am looking for is an indication of length and breadth. I am not interested in identifying people. That certainly may require to be undertaken, but at this stage what I am looking at is a culture --

  • -- and practice, both of which are certainly within my terms of reference.

    One of the possibilities -- and I understand the argument -- is that at a senior level activity was condoned, encouraged, authorised, required.

    Another possibility is that there was no such behaviour at a senior level, but that more junior members of staff or otherwise decided among themselves, or individually, to take an approach to gathering evidence or gathering material which breached either the criminal law and/or an ethical code or both.

    One possibility might be to say that which of those two it is may not matter, because, in the one case then the senior staff are involved, and in the other --

  • There was a lack of supervision.

  • -- there was a lack of supervision and oversight which permitted a slightly different culture to develop --

  • -- the Nelsonian eye or not. It may not matter. And for purposes of the future, that may not be the most critical decision.

  • I would certainly need, if I went down that route, which would not require me to identify people, and perhaps need not require me to go into precisely what can be established about the knowledge or otherwise of individuals, but it would require a very clear enunciation of what had been learnt about the length and breadth of what had been going on.

    Now, within the public domain there was reference to a journal, which identified a vast number of names and may or may not, about which I say no more, link individuals.

  • Now, do you argue that it would undermine the work that you want to protect if I were to put into the public domain (a) the fact of the journal -- no, because it's already there -- (b) the number of entries --

  • In relation to victims who have been identified, they have been identified. I am not interested in identifying people whose numbers have not been identified, or who may or may not have been the subject. Also, the reference to the individuals, not by name, but by code, to identify the length and the breadth of what I have done, of what has happened.

  • No, we would have no objection to that.

  • Because in that way -- you might get some more instructions.

  • I haven't gone wrong yet, sir. The gown has not yet been tugged, metaphorically or otherwise.

  • Yes, but I can see reaction.

  • Yes. Just proving everybody's awake, sir.

  • In that way, it may be that the detail doesn't actually advance part one.

  • With that, sir, we would be entirely happy. We have been in recent communication with Mr Jay about precisely the possibilities of this.

  • Yes, that doesn't entirely surprise me.

  • Because I didn't want the possibility to take you by surprise in court.

  • I am concerned to protect the integrity of the investigation. I am also concerned to protect the rights of those who may be the subject of further proceedings, not merely in relation to their evidence, should they give it, but also in relation to adverse publicity one way or the other.

  • I'm conscious of the points you're making, but if I go down that route, then it will require the very, very greatest disclosure of length and breadth.

  • And may require some effort, which isn't absolutely designed to further the detail that I know the police will want to further in the course of their enquiries --

  • In order to present a picture.

  • Sir, work has already begun on that.

  • Serious work at a high level has begun on that.

  • We are keen, and we have been throughout, to find a way to meet the twin objectives of enabling you to conduct a proper part one of your investigation and for us to keep a live investigation.

  • I recognise the point. Although I am criticised as not having been a media lawyer, it may be that my advantage of having been a criminal lawyer will actually bear some fruit. All right.

  • I don't think I need to say anything more about abuse of process.

  • I think what I've said about contempt is clear enough from our written submissions.

  • On Parliament and the sub judice rules, you'll see what we say.

  • Yes, of course, you used the wrong edition of Erskin May. I'm sure you've been told it's now an out-of-date edition you have used.

  • Somebody has said how well that part of our submissions were made and I was delighted that that was the case, I am appalled to discover we have the wrong edition. Doubtlessly I will listen to Mr Jay explain how the change in edition has affected the fundamentals of my argument.

  • Now you're trying to tease him.

  • Sir, nonetheless you have the point.

  • Our concern is that the rules -- as Mr Jay himself says -- as to when proceedings are live is different for the purposes of parliamentary.privilege as compared with contempt, and the result will be that there will not be the restraint on, if I can put it that way, on what is said.

  • Or at least there may not be.

  • There may not be the restraint on what is said in Parliament as might be the case elsewhere. The dangers are obvious and, sir, you have the point. I don't think I need to say anything about self-incrimination beyond what we've said in writing.

  • Yes, of course. It may be that even if some of these witnesses are not called in relation to the specifics of module one, some witnesses who may or may not be suspect could very well fall into the frame in relation to that module of part one that deals with the relationship between the press and politicians.

  • In which event there could be no concern, because that's not a feature of an investigation which you're conducting, as I understand it.

  • That is right, sir, except there will be collateral commentary in such material that may be relevant to our investigations.

  • Yes. I think I understand that, but that's at a different order of --

  • Sir, I have something to say about your last topic, but I think you're going to deal with them issue by issue.

  • Fast ball, the receipt of anonymous material.

  • Let's deal with all this first and then come to that.

  • Thank you very much.

    Let's turn to what some of the other core participants have to say about this. You're, if anything. I'm conscious that I've received submissions from Mr Mukul Chawla, to which I've already adverted, but I'll come back to them slightly later.

    Right, Mr Caplan, welcome back to jurisdiction.