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

  • LORD MACDONALD (affirmed).

  • Your full name, please?

  • You kindly provided us with a witness statement dated 19 March, running to 39 pages, under the standard statement of truth. Is this your formal evidence to the Inquiry?

  • Lord MacDonald, thank you very much for the effort that you've put into the statement and I also publicly express my gratitude to the President of the Queen's Bench Division who has deferred hearing a case in which I know you're involved.

  • First of all, who you are. This is paragraph 3 of your statement. If I can just focus on the highlights, if I may, you were Director of Public Prosecutions for a five-year term between November 2003 and November 2008, having taken silk in 2007.

  • 1997, pardon me. You would have been the first to be DPP without being in silk, so I apologise for that.

    In July 2010, you became a Liberal Democrat here. You are visiting Professor of Law at the LSE and you are warden elect of Wadham College, Oxford. Is that broadly speaking the picture?

  • Thank you very much. You explain in your statement the role of the CPS and the role of the DPP. We're going to take those parts as read and go straight to paragraph 9 of your statement, first of all making it clear that your statement has been prepared from documents some of which you did not see at the time, some of which you've only seen for the purpose of putting together your statement, and your overall recollection of events is necessarily limited by the passing of time?

  • Yes, I think I've only seen three of the documents before, that's the two briefings sent to me and to Lord Goldsmith the Attorney General, and I believe I saw an email from Carmen Dowd informing me that the suspects were in custody and being questioned. I think the rest of the documents I saw for the first time in preparing my statement.

  • Thank you. The prosecution was handled by SCD, which you explain, this is paragraph 9. Can we link that with paragraph 10. First of all what is SCD and what is CTD, please?

  • When I was DPP, we set up four specialist case work divisions for serious and sensitive criminal cases: the organised crime division, the counter terrorism division, which was CTD, headed by Sue Hemming; the special crime division, which was headed by Carmen Dowd and dealt with particularly sensitive cases; and the fraud prosecution service, whose purpose is self-explanatory, which was headed by David Kirk.

  • Although this case was within SO13 of the MPS, which is the counter terrorism division broadly speaking, when it came to the CPS it was dealt with by the SCD?

  • Yes. It was not a terrorist case, self-evidently, and so it was placed within special crime division as being a case of particular sensitivity because it involved members of the Royal Family and Royal household.

  • Thank you. Within paragraphs 10 and 34 of your statement you give an overview. A lot of it we're going to take as read, but because they are documents you saw at the time, we're going to focus on two documents. First of all, a briefing you received on 30 May 2006, which is under tab 19 of this bundle. It's page 18382.

  • This comes to you from Carmen Dowd, comes to you and the Attorney, which is standard practice, and it gives a broad overview of the state of play as at that date and it was no doubt of particular sensitivity and interest owing to the involvement of those close to the Royal Family?

  • Yes, there's a convention that any criminal case involving members of the Royal Family is brought to the attention of the DPP and the Attorney General as a matter of course.

  • Nothing to do with the fact it's to do with a newspaper, it's because of the Royal household?

  • Nothing to do with journalists at all. It's members of the Royal Family.

  • Thank you very much. If one looks at some of the detail of this, but not all of it. If you go to the second page which is 18383, paragraph 2.9, what Carmen Dowd says is:

    "I have advised the police about the potential for offences under section 1 of RIPA and section 1 of the Computer Misuse Act."

    So both statutes are in play. Then there is reference to technical evidence. You see 3.0:

    "In relation to Goodman, another potential suspect has been identified ..."

    That was Mr Mulcaire?

  • He had only just arrived on the scene I think earlier that month.

    "... as accessing the UVNs on a number of occasions and inquiries continue in relation to him."

    There is a misspelling there of his name.

  • And then she says:

    "I am told that in the media world he is widely suspected of being able to access mobiles."

    I'm not sure whether we can take that point any further.

    "He may well prove to the be the conduit between the telephone companies and Goodman."

    You see on the next page, 4.4:

    "A vast number of UVNs belonging to high profile individuals, politicians and celebrities have been identified as being accessed without authority -- these may be the subject of a wider investigation in due course. A number of the targets of this unauthorised access have been informed -- some of whom have declined to assist in a police investigation."

    And then the conclusions, 5.2 and 5.3:

    "Once arrests are made -- the media will have a field day."

    That was obvious I think on a number of levels.

  • Yes, I think it was pretty obvious.

  • The second point:

    "The system for accessing voicemail messages appears to be rife."

    So not merely were you being given the flavour of something which related specifically to the Royal household and therefore gave rise to concern in its own right, but the picture here was the possibility, at least, of a much broader concern?

  • Yes, it looks as though the details relating to individuals other than members of the Royal Family, those details were in the possession of Goodman/Mulcaire, was the way I think I would have read this.

  • Certainly. But this came to you, no doubt, amidst a whole host of briefings on other topics over the course of a working day and a working week but presumably you noted it as it went through your box?

  • Yes, and I think I wrote on the original copy a note that I should be kept informed. Again my concern was that members of the Royal Family were involved, and there was obviously a risk I think implied even at this early stage that members of the Royal Family might be called to give evidence. One didn't know what the content of the messages was and whether it could prove to be embarrassing in some way, and so a number of sensitivities around their involvement would have been at the forefront of my mind.

    As far as I'm aware, you're absolutely right, 2006 as I think Peter Clarke has already explained to the Inquiry was an extraordinary year for us. We had the trial of the 21 July bombers, we had the airline plot which arose very shortly afterwards, we had the dirty bomb plot, and we had the continuing ramifications of the fertiliser plot, all serious attempts at mass murder on the London transport system and around the country.

    The airline plot itself would have been utterly catastrophic had it occurred, not least to the British economy, because I imagine trade around the world would have closed down for a number of days at least.

    So we had a great deal on our minds and Peter Clarke, I know, because I worked closely with him during this period, had an enormous workload. Enormous.

  • Thank you. The next briefing you received --

  • Just before we pass through this briefing, what you're being told in May 2006, whatever is to be done with it, and I recognise entirely the validity of the points that you've just made, indeed I did to Mr Clarke, that before there's a search or anything like that, there is already material to the effect that a large number of people have been accessed without authority. That's outwith what might emerge from a search.

  • The second briefing, it was the search, it was 14 July, it's in a number of places in the bundle but I'm looking at it under tab 12, page 16551.

  • Again, we're just going to alight on a number of points. If you look at 2.3, Lord MacDonald:

    "The police have requested initial advice about the data produced and whether the case, as it stands, could be ring-fenced to ensure that extraneous matters will not be dragged into the prosecution arena."

    The reference to ring-fencing is to ensuring that members of the Royal Family in particular would not have to give evidence, it's not a reference to excluding victims, other victims, from the net of a possible prosecution?

  • That's right. And I think the extraneous matters referred to the content -- I mean, I think I can confidently say, as someone who's been a defendant more than a prosecutor in his career, there's always a risk in a case of this sort that the defence might adopt a strategy of shall we say trying to embarrass the prosecution out of bringing a case, and that might be by making it unattractive to prosecute the case for a number of reasons, including, for example, creating a situation in which one of the royal princes would have to step into the witness box.

    I think Carmen Dowd, my reading of it now having looked through this file is that both she and the police were very, very aware of that risk and keen to avoid placing themselves in a position where the defence might try to embarrass them in that way.

  • Thank you. Could you turn over now to the next page, 2.10. There's a reference to the expert evidence:

    "The Vodafone evidence will form the strongest evidence against Goodman and Mulcaire. From the data provided if it can be proved that on four occasions when messages came into JLP's voicemail system these were accessed before being listened to by him (on two occasions by the Goodman landline and on two occasions by the Mulcaire business line), these could form the basis of substantive offences under section 1 of RIPA."

    So that necessarily is premised on a narrow construction of the Act?

  • Then 2.11:

    "The other numerous calls made from the Goodman line, News International line and Mulcaire number to JLP's UVN number could form the basis of offences under section 1 of Computer Misuse Act. (Subject to confirmation that the voicemail system amounts to a computer and the messages 'data'.)"

    So the technical issues in law were not impacting on the Computer Misuse Act?

  • So different points there, although they were surely easily surmountable, the voicemail system would be a computer and the messages data, but I suppose those points needed to be nailed.

    Then we see 2.12:

    "However, my initial view is that offences of conspiracy (between Goodman and Mulcaire) to commit section 1 RIPA offences and section 1 Computer Misuse Act offences may better reflect the alleged criminality involved and enable a more comprehensive case to be presented."

    So that wasn't far off the mark?

  • No, I don't think it was.

  • The conclusion, section 5, page 16554:

    "The police appeared to be able to present a cogent and presentable case which could proceed without the need to delve into the content of any messages left and/or retrieved, any use the information obtained has been put to, or who left such messages. Witnesses other than JLP and HA should not be required from the palace for prosecution."

    That was the summary of the position as at that date, and again something that you would just have noted and filed away in your memory, presumably?

  • Yes. Papers come across my desk, I read them and initial them and date them to indicate that I've read them, and then they go off into the filing system.

    I also had regular meetings with the heads of the specialist case work divisions to discuss particularly important cases. I'm not sure whether this at that stage would have come into that category, but I'm sure, because I'd asked to be kept informed, that from time to time when I had meetings with Carmen Dowd, she would update me on the position so far as this case was concerned.

  • In terms of the overview you give over the succeeding pages -- we're going to look at some of the detail from paragraph 35 onwards -- you make the point on page 15530, the question was at the bottom of the page: "What thought you gave to the relevant law". You say:

    "I gave no thought to the relevant law. That was the responsibility of the reviewing lawyer and counsel."

    And that, of course, is standard practice, isn't it?

  • I'm sorry, which page is this?

  • It's page 15530 on the internal numbering, original internal numbering, page 7?

  • It's your subparagraph H. You wouldn't to have to do the work yourself; that's why you instruct counsel?

  • Yes. I think I made the point that Ms Dowd was head of the special crime division and therefore one of the four or five most senior lawyers in the CPS. David -- well, I think I can safely say that David Perry's reputation speaks for itself.

  • Can I ask you to move forward to paragraph 18, page 11 on your internal numbering, our page 15534.

  • Can I ask you to comment on this. You say:

    "I would have expected that if the MPS had indicated that the police were in possession of evidence to implicate other individuals within News International, the CPS would have advised them to continue with their investigation. As there was confirmation to the contrary, the CPS was unable to provide this advice."

    You were dealing with a hypothetical there, but would not the issue of resources at least for the MPS have entered into the equation?

  • Well, I can't speak to that, except to say that there does seem to be material in documents that I have reviewed to indicate there was some concern in the -- within the counter terrorism command about the level of resources that this investigation might consume, and I understand that. But I do think, as I said in paragraph 18, I would have expected had Carmen Dowd been told that there was material implicating other people that she would have advised the police to pursue that investigation. Whether or not they chose to accept that advice would entirely be a matter for them because, as I think it is well-known, the prosecutor, the CPS has no power to direct the police in the course force of their investigation.

  • Would you expect the CPS to be involved in that sort of decision? I appreciate we're talking about a very specific set of facts, but have you experience of having to discuss with the police or would you have expected to have been involved with the police in discussion about the extent to which one line of investigation should be pursued in preference to another? You've identified the terrorist plots and we've already discussed those, but have you had experience of the police saying, "We have this operation, this is the position, this is where it could go, but actually, for reasons A to E, we don't think this is sensible". Could you provide a view?

  • If their conclusion was as you've just set out, that would, I think, invariably be accepted by the CPS since operational decisions are for the police. In very serious case work, terrorism, for example, the police would sometimes come to us and say, "We could pursue this line of investigation to obtain evidence X, Y and Z. Do you think we need evidence X, Y and Z in order to mount a case?"

    For example, one of the very earliest bits of advice I gave was to Peter Clarke when I became DPP when he came to see me with the transcripts of tape recordings that they had obtained of terrorist suspects to ask me whether I thought there was sufficient evidence on those tape recordings to arrest or whether they should see if they could wait a bit longer and get something more, and so they would -- we would give them that sort of advice, which is somewhat analogous, I think.

  • I'm just wondering about the relationship between the CPS and the police, and I understand that the operational responsibility is the police, but I wondered whether you had ever been involved in the sort of discussion of a type that I've described whereby there is an investigation which has potential ramifications, may not be of the most grave crime, because that would tend to answer itself, where you are asked for a view as to the public interest.

  • I think I personally haven't and I think that would be extremely rare. It's rather difficult to imagine a situation where the police would come for that sort of advice, partly because they would jealously protect their own role in the situation, as we protected ours, which was the charging decision, but I cannot think of a situation in which the example that you've just set out occurred, certainly not one in which I was involved.

  • It might have been in this particular -- well, it obviously wasn't, but in this circumstance, if rather more had been done so that they were in a position to say, "Actually, we could go down all these routes, but we have all this terrorism work to do, would you agree with us or would you express a view on the public interest?" your paragraph 18 suggests you'd have said, "Just carry on."

  • I think it depends what they're saying. If they came to me and said, "We found evidence that two other journalists at the News of the World were involved in this", then I would imagine she would say, "Oh, well that's interesting, I assume you're going to pursue that", or words to that effect. I wouldn't expect her to say, "Why are you doing that? Don't bother with that." Why would she say that?

  • It's not that it's irrelevant, it's the pressure of other work is supervening.

  • I have no knowledge of any conversation of that sort taking place.

  • I was actually trying to work out the relationship.

  • I think it would be rather unlikely. I think it would be extremely unlikely in the context of this case that the police would come to the CPS for advice of that sort.

  • Would resource considerations within the Crown Prosecution Service, as opposed to the MPS, have any impact on the course of the investigation?

  • No. The CPS financially was an extremely well-managed organisation. We came in just dead on budget every year that I was DPP. We had contingency funds for serious cases. We never, in my experience when I was DPP, abandoned or limited a case, a serious case for those reasons. Obviously one takes decisions, as David Perry has set out, so that a case is clear and appropriate for prosecution, but I'm absolutely confident from the material that I have seen that there were no resource pressures within the CPS in respect of this case.

  • I move forward now to paragraph 27, page 14 or our page 15537. This relates to the advice which was given in conference, at least what you were told subsequently that advice was, on 21 August 2006, the no evidence point, to implicate any other individual. I've been asked to put to you this question, if you bear with me. Whether the evidence implicated others would depend on the elements of the offence under consideration, namely that if the narrow view of the law was the correct premise on which to proceed, that would colour whether there was no evidence to implicate any other individual as opposed to the wide view of the law?

  • I don't follow that. First of all, I don't think that was -- I don't think that can have been the advice that was being given, otherwise the indictment would have made no sense, and I would have expected anyone who thought that that was the advice that had been given to query the indictment, and of course that didn't happen.

    Secondly, I'm not sure that the narrower interpretation could impact in any sensible way upon the answer that David Perry was given in that conference. His question was whether there was any material to implicate other employees or journalists at News International and the answer was no. I'm not sure how a technical narrow piece of advice on a rather obtuse legal point could have seriously affected the answer he was given in that regard. It doesn't seem to me, from what subsequently transpired, that he could have been giving that advice in any event.

  • I follow that, Lord MacDonald. I'm not going to pursue that one any further. Can I move on to paragraph 33 now, please, page 15, our page 15538. Were you made aware of the degree of co-operation or lack of it provided by News International in relation to the police investigation?

  • No, I don't have any recollection of this at all, and I would think that if I had been told by anyone that there was a lack of co-operation, it's something that would have concerned me and I would have made enquiries about it and I would probably remember it. I haven't seen anything to indicate that I was told that and I don't believe I was.

  • You refer there to Carmen Dowd on 15 August receiving a call from News International's solicitors, that was Burton Copeland?

  • Just out of interest, really, it's in the bundle at tab 20, page 18438.

  • It's a manuscript note, which I deduce must have been written by Carmen Dowd.

  • Sorry, my bundle isn't numbered.

  • Right. In tab 20, it's about two-thirds of the way through. It's probably going to come up -- yes, it's up on that screen there.

  • Is that Carmen Dowd's writing?

  • I don't know, I'm sorry.

  • What it records is that she was told that the relevant information about the financial relationship between Mulcaire and Goodman would be provided voluntarily.

  • I'm not going to ask you to comment on that because --

  • I didn't see this at the time.

  • No. In paragraphs 35 and following, page 16, our page 15539, you look at some of the evidence in more detail.

  • Yes. Paragraph 35. There isn't actually a 35, it says 40.

  • That's why I was confused, yes.

  • Yes, the numbering goes awry but it's supposed to be 35.

  • The story from 2 August 2006 we've covered with Mr Perry, but the story between April 2006 and August 2006 I'm going to cover with you, but I understand throughout that you're really providing us with a hearsay commentary on evidence which you weren't aware of at the time?

  • Yes, essentially my statement is going through the documents which I read in the course of its preparation.

  • Thank you. Can I just alight on a number of points because you do assist us on those.

    There was a telephone call, you say in paragraph 35, made in March 2006 to the head of CTD --

  • Counter terrorism division.

  • Yes. I think that was Sue Hemming, wasn't it?

  • But the case as it were was transferred to Carmen Dowd. In paragraph 36 you say:

    "I understand that the principal legal adviser to the DPP, Alison Levitt QC has spoken to the head of CTD [that's Sue Hemming] about this call. The head of CTD does not recall giving any specific advice and believes that she would not have given any without knowledge of the facts. She accepts that had the MPS asked her which offences might be appropriate to consider on the brief facts relayed to her, she would probably have given an indication, but any views that she may have expressed would necessarily have been provisional, not least because she was indicating that she would not be dealing with the matter herself."

    Because of course the matter had been passed on to the head of STD?

  • Pardon me. The documents pick up the position as at 4 April 2006. Can we look at tab 3 in our bundle, page 15967, which is the second page in tab 3. This is a request for guidance from the CPS. We can see that the police officers identified two relevant statutes, which was correct. You can see their analysis, which is really before any considered advice had been given by the CPS, slap in the middle of the page, in relation to RIPA:

    "This is an indictable offence and would attract a maximum two years imprisonment and/or fine."

  • Are you looking at the document headed "Review of case -- SIL66"?

  • Yes, I am, in the middle of that page.

  • In the middle of the first page of that document?

  • Yes. Do you see that passage?

  • "In terms of points to prove the key aspect would be that any interception took place prior to the intended recipient receiving the message."

    So this it's reasonable to deduce is the MPS view reached without any considered advice from the CPS?

  • Do you agree with that?

  • And the Computer Misuse Act, there were two disadvantages with that statute which really flowed from it being a summary offence attracting six months' imprisonment and/or fine, first of all that the sentencing options to the court were less, and secondly that certain statutory time limits would come into play with regard to charges?

  • Yes. Prosecutors have a duty to put counts on the indictment that enable the court in the event of conviction to pass an appropriate sentence and I imagine the view was taken that a maximum sentence of six months would not be appropriate.

  • Thank you. If you pass through this tab to page 15979, which is four or five pages from the end --

  • Again I'm afraid I don't have numbers.

  • It will come up on your screen in a moment. This is another case --

  • It's the penultimate page of a case review, page 5.

  • Dated 20 April 2006. What the police are saying at the top of that page:

    "Following a brief and initial consultation with Sue Hemming ..."

    That's the one you referred to in your statement?

  • "... back in March 2006 the following are believed to be the most appropriate criminal offences that could be considered if a prosecution was feasible."

    Then there's reference to RIPA. You see the same point again:

    "In terms of points to prove, the key aspect would be that any interception took place prior to the intended recipient receiving the message."

    It's unclear whether that view flowed from Sue Hemming's brief and initial opinion, as it were, or whether it was already in the mind of the MPS, but there is evidence we've seen that it was in the mind of the MPS before Sue Hemming arrived on the scene in any event?

  • The advice was sought on 25 April, you say in paragraph 39 of your statement, and the advice was given on 25 April at page 15989, which is in the next tab, tab 4.

  • It in fact refers to a conference on 21 April between the police and Carmen Dowd. She's now giving her more considered view. I don't think we need look at her analysis under the Computer Misuse Act, if you don't mind. We're going to look at her analysis under RIPA, page 15990, the second page of this. Four lines down:

    "The offences under section 1 of RIPA would as far as I can see only relate to such messages that had not been previously accessed by the recipient. However, this area is very much untested and further consideration will need to be given to this."

    Well, we can interpret that for ourselves, but what she's probably saying there is that her opinion is the narrow view of the law is correct, but she's recognising that it's untested and further legal analysis would be required?

  • Then she says:

    "Again, the actual technical evidence would need to be carefully considered before any firm view could be taken about whether the offence is capable of being proved. Unless the offence is capable of showing all of the details we discussed (length of original message, length of call to recipient's voicemail, et cetera) it is unlikely we could proceed with the technical evidence alone. If such evidence was forthcoming, it is in my view entirely possible to ring-fence the investigation and any subsequent prosecution to ensure that only those witnesses discussed [that's to say the secretaries to the Royal household, not the princes] would be the subject of matters before the court."

  • Yes, again obviously a focus on avoiding the need for members of the Royal household to give evidence in the trial. I should say members of the Royal Family.

  • Would you accept at least this much, Lord MacDonald, that the narrow view of the law, which probably would be your preferred view but you accept it's untested, had an impact on the investigation at least to the extent to which it defined the way the expert evidence would have to be obtained to prove the substantive offences as opposed to any of the inchoate offences?

  • Yes that appears to be the case.

  • Okay. We know from evidence we took at the end of February that a sting operation was undertaken in May and I think early June 2006 where the two secretaries were told not to use their voicemails and so the expert evidence could be obtained with highly sophisticated technical data.

  • It's also relevant, as you point out in paragraph 42 of your statement, a correct summary really of what Carmen Dowd was saying, but there were two legally viable offences, namely the RIPA offence and the Computer Misuse Act offence, and both remained in the frame, as it were. Is that right?

  • We know that from the police's own understanding of the position. Go to tab 11, page 16498. This is a decision log of Mr Williams. He says in terms, summarising the advice Carmen Dowd gave, point 1:

    "The behaviour described does give rise to offences under section 1 RIPA and section 1 Misuse Computer Act -- subject to appropriate evidence."

    You rightly point out that the 1990 Act was still very much in play, wasn't it?

  • The way in which the investigation then proceeded in terms of the technical aspect, I refer to the sting operation, that's at the bottom of this page, do you see that?

  • And that would enable evidence to be obtained which would bring home the RIPA offence, even on the narrow view of the law?

  • Thank you. Paragraph 43 next, please. We're moving forward in time to the end of June 2006, where you say:

    "The MPS sent a file to the CPS seeking further advice. That file indicated that the investigation was indeed proceeding into offences under RIPA and the Computer Misuse Act."

    That is correct. We can see that from paragraph 12, page 16534. We can really just note that in passing because the position had not really changed since 26 April. At this point, the investigation was proceeding under both statutes, although the technical evidence for the purpose of RIPA was directed to the narrow view of the law being correct?

  • We move forward now to paragraph 44. There's a letter of advice from the head of SCD dated 18 July 2006. It's tab 12, page 16559. Again, it's about two-thirds of the way --

  • Yes, I have this. This is dated 18 July.

  • Thank you. It's going directly to DSI Williams. Carmen Dowd is looking at the expert evidence now, because the expert evidence which had been analysed following the sting operation was predicated on the basis that you could see that the accessing had taken place before the intended recipient had ever heard the message.

    At the bottom of that page:

    "Whilst there are many aspects of the evidence which I require to be clarified, it is my initial assessment that offences under the Computer Misuse Act and RIPA may be provable. However, in addition, I would be looking to consider an offence of conspiracy to commit these offences on the basis of the other evidence being available relating to HA's telephone, the O2 telephone recordings, the financial evidence and the contact between target 2 and target 1 via mobile. The case appears to be cogent and presentable."

    She then identifies the possible weaknesses in the case, but there's not much of particular concern.

    I'm asked to put this to you: 18 July appears to be the first occasion when the offence of conspiracy was mentioned as another possible way forward. It certainly accords with my recollection of the documents.

  • I'm sure you're right about that. I can't really assist. I can't remember all the documents I've seen -- I'm sure if it's put in that way, that's correct.

  • Would it be your understanding that the advantage of the conspiracy charge would, as it were, steamroller or iron out all the technical issues that arise as to the correctness or otherwise of the narrow view of the law on sections 1 and 2 of RIPA?

  • Yes, because the offence becomes the agreement.

  • I'm not sure I agree with either the words steamroller or iron out. It's because it's a different offence which has different ingredients, neither more nor less.

  • The trouble with using metaphors is that it gives rise to some loose thinking on occasion, particularly on the part of the person who has just asked that question. Let's move on.

    What you've just said, Lord MacDonald, takes the matter slightly further than what you said in paragraph 45. You use the adverb "necessarily" there. You say:

    "A charge of conspiracy would not necessarily require proof that every interception had taken place before it had been accessed by the intended recipient."

  • One tries to be very careful with words drafting statements of this sort. I think I was being unduly cautious.

  • Unless it can be said that the agreement was only to intercept voicemails after the intended recipient had already accessed it, which of course would be fanciful, then you're being far too cautious in paragraph 45, aren't you? Do you see my point?

  • Yes, I think he's agreed with you.

  • He said it before you did, Mr Jay.

  • Paragraph 46. This is the issue of instructions being prepared and this is really where Mr Perry can take over the baton from you. We have heard evidence as to what he advised at all material times throughout, haven't we? So I'm not going to ask you to comment on that, in other words, because we can take it from him.

    I have one point for you which I've been asked to raise, much later on in your statement, page 24, page 15547, on CPS resources.

  • Can I ask you to comment on one document which is tab 55, the first page of it, 18643. It's Mr Clements. We're much later down the road, 21 July 2009. Paragraph 8 and 9 suggest that there might have been a limitation on Crown Prosecution Service resources.

  • These paragraphs, I think, are referring to the review of what had occurred, the 2009 review of what had occurred in 2006 and 2007. I think Mr Clements is acknowledging that the situation when it comes to a review of that sort might be slightly different than the situation when one is investigating criminal offences, but I'm absolutely confident that the resources, the question of resources had no impact whatsoever on the CPS' approach to this case in 2006 and 2007.

  • And nobody has suggested to the contrary.

  • In paragraph 56 of your statement -- the rest of it we're going to take as read, if you'll excuse us for doing that. Page 29, 15552.

  • Yes. You say that Mr Davies came to see you?

  • This was Nick Davies. Which was -- can you remember the month?

  • It would have been following -- shortly following the publication of his article, so I'm sure it would have been in July 2009. He came to see me in my chambers and he wanted to speak about the 2006/2007 inquiry. I knew Nick Davies, I'd met him on numerous occasions and spoken to him on numerous occasions, both in connection with articles that he'd written and I'd seen him at various receptions. So he came to see me, but I think I told him I had very limited involvement, I couldn't really assist him.

  • You wouldn't even have had the briefing notes which we know were sent to you at the time because they remained with the papers at the DPP whose office you'd by then left?

  • Actually, I had to be reminded about those notes. I had no recollection of them at all.

  • May I now finally deal with some more general matters to cover, paragraph 58 and following, which deals with -- these paragraphs deal with engagement by the media.

  • You explain that the CPS were seen by the media and by the public as "vague, remote and unaccountable". Public confidence in the work of the CPS was "extremely low". So did you embark upon a policy better to engage the media in order to ameliorate that position?

  • There were two sides to this. First of all, better engagement with the public. We had a series of programmes of policy development which had been started under my predecessor, Sir David Calvert-Smith. We would publish policies in particular areas of prosecution work, domestic violence, sex crime, race hatred cases, and in order to develop these policies, we would meet with community groups and interested parties, we would consult and then we'd publish. So we were doing a lot of community work of that sort.

    We also as another part of this effort had a deliberate policy, I introduced a deliberate policy of deeper and broader engagement with the media, and I've set out some of the examples of this work in my statement. I regarded it as part of the work of senior prosecutors, particularly Chief Crown Prosecutors, to engage with their local media, to go on local radio stations, to speak to the press, to give interviews after cases, to become public figures in their areas, and I saw this as being a part of raising our profile, a demonstration of our public accountability, and a means by which we could develop public confidence in our work. So it was a deliberate strategy which I instituted, and which I was enthusiastic about promoting across the service.

    Indeed, when I appointed new Chief Crown Prosecutors during my period in office, I made it absolutely plain to them that part of their role would be to engage much more positively with their local communities and indeed with their local media, and the instructions which I gave them of course I followed for myself at a national level.

  • Thank you. You also say in your statement at paragraph 65 that on occasion you would meet an editor or a journalist for lunch --

  • -- or much less commonly dinner, to discuss matters of interest. Why was it necessary to meet them over a meal?

  • Well, it wouldn't always be thus, but it was really a question of having an opportunity to talk to senior journalists and editors about our work off the record in circumstances where the conversation would flow naturally and easily.

    In that sort of role, the role of DPP, one does begin to build up relationships with significant figures in the media. Some journalists who were particularly -- for example, specialists in legal work I would see quite regularly, so it was a perfectly natural and I thought useful thing to do it in that way.

    I think that the coverage of our work became a little less hostile than it had been in the past. It provided me with an opportunity to engage directly with senior journalists and editors when inaccurate stories were printed about us, and that also had a positive effect.

    It also I think demonstrated to my own staff the importance that I attach to this work, that I thought that the way we were written about in the press was important, not just from the public's point of view but from the point of view of our staff. It's extremely debilitating if people work for an organisation and all they ever read about themselves in the newspapers every day is what you might describe as knocking copy. I thought that was bad for morale, and I thought it was presenting an untrue and unfair picture of our work. So that everything did in this regard, including my lunching with journalists, was part of an effort to combat this and to get a better, fairer and more rounded impression of our work out to the public.

  • In terms of what journalists printed, do you feel that that policy was successful or not?

  • I think it was successful. There were some distinct examples of particular newspapers who quite changed their approach towards us when we were able to confront them in a friendly way with demonstrably inaccurate stories that they featured sometimes on their front pages.

    I think generally -- an organisation like the CPS is never going to please everyone, it's not in business to please people, but I think generally the portrayal of the CPS and of prosecutors in the press improved, and I think improvement that has been maintained and I think the policy of engagement which I've described has been continued by my successor; he can speak for himself. I should say it was instituted by my predecessor, so I didn't entirely invent all of this, but I'm sure that it was the right policy and remains the right policy.

  • The review of the hospitality records show, as you said, that you tended to see journalists interested in or practising in legal affairs more than any other, then I suppose crime journalists, crime correspondents next. But you did meet with I think the editors of virtually all of the national newspapers from time to time?

  • The only editor I didn't meet was Mr Dacre.

  • Yes, you're right, I haven't found his name here. But everybody else --

  • Yes, I met instead with his social affairs editor on a number of occasions, Mr Doughty.

  • You say in paragraph 67, Lord MacDonald, you agree with the evidence given by Nick Davies that it's not contact with journalists that's the problem, it's whether you allow that contact to corrupt your decision-making. Is it not possible to say that there's an intermediate position, namely the perception in the legitimate public eyes, as it were, that decision-making might be impacted adversely?

  • I think this is a situation which has to be handled carefully, and there are obviously strict rules. One doesn't breach confidences, one doesn't have inappropriate conversations with journalists and one doesn't allow journalists to influence in any way whatsoever prosecution decision-making. But with those caveats, I think that contact between public bodies and journalists is strongly in the public interest, and I think we need to avoid a situation where public bodies feel that contact with journalists is something which is unprofessional or inappropriate. There are obviously boundaries that have to be observed, but I do believe that part of living in an open, democratic society, one aspect of that, an important aspect of that, is contact between public bodies, people working in public bodies and those journalists who are conveying ideas and news to the public on a daily basis.

  • Might I ask you this: do you have a reaction to some of the evidence this Inquiry received in the first two weeks of hospitality enjoyed by police officers, senior police officers paid for by journalists?

  • The Inquiry will draw its own conclusions. You just asked me whether perception is important, and I accept perception is extremely important. It's as important to public confidence as the desire to explain yourself to the public is important to public confidence.

    I think there's a slightly sharper issue, which is the issue of whistle-blowing, which I've also addressed in my statement.

  • Yes. I was going to ask you to develop that. I think the essential question is that the this, that the Protected Disclosures Act of 1996, if I correctly recall its title, sets out a specific mechanism by which whistle-blowing could take place, namely within the organisations rather than to journalists outside the organisation. Why isn't the statutory route, as it were, the appropriate one?

  • I have a fundamental difficulty with the idea that whistle-blowers have always in all circumstances to exhaust their remedies internally. I worked in Whitehall for five years as DPP, having come from the bar. I'm now back at the bar. My fear is that if the internal remedy is the only route for a whistle-blower, too often that would result in suppression in one form or another.

    My own view is that there is a very strong public interest in appropriate circumstances for there to exist a route from whistle-blowers direct to journalists. I acknowledge that it is extraordinarily difficult to design a system which allows for this and it may just have to be something which exists and which occurs from time to time, but we can all think of cases in which it would be critically in the public interest for a whistle-blower to go straight to a newspaper or to a media organisation, and I think it is strongly in the public interest from time to time that that occurs.

    So obviously whistle-blowers face a number of existing legal impediments. I think it would be a matter -- this is my personal view, if you forgive me for expressing it -- it would be a matter of significant regret if this Inquiry resulted in further legal impediment to that process. Whistle-blowing is often in my view -- from time to time in my view in the public interest and should not face further legal discouragement.

  • I'm not sure anybody has suggested further legal impediment.

  • I'm sure they haven't.

  • Thank you for that. I'm just checking, there is just this general point, if I can close with this point. I've been asked to put this to you by others. We don't see many notes from Carmen Dowd in the papers. Do you happen to know whether it was her practice to keep any?

  • I don't know. I've seen what you've seen, and as you've said, there are a number of emails, there are the two briefings to me and to Lord Goldsmith, there's an email to me, there are some records of meetings and so on and so forth, but not a great amount of notes, I accept that.

  • Do you have a view as to the acceptability of that?

  • I think that it's good practice, which ought to be followed, for lawyers to make notes of important decisions and important stages of cases, not least because if there has to be an inquiry later into what happened, those notes can prove to be of great assistance. So I think it's good practice to keep records of the progress of a case, and particularly of important decisions that are taken during the course of a case.

  • A different core participant has asked me to put this general question, that especially given this was a difficult and sensitive prosecution, would you agree that there should have been greater oversight of Carmen Dowd or not?

  • Well, Carmen Dowd was, as I said, one of the four or five most senior prosecutors in the CPS. When I recused myself from the cash for honours case because I'd been in chambers with the then Prime Minister's wife, the person I nominated to conduct the case was Carmen Dowd. She was an extremely senior and experienced prosecutor of sensitive crime and she was being advised by one of the outstanding silks at the criminal bar, and I for my part then and still regard the process in that sense as having been entirely adequate and appropriate.

  • Thank you very much Lord MacDonald.

  • Lord MacDonald, thank you very much.

  • May we take a short pause?

  • Yes, we'll have a second break this morning because we started early.

  • (A short break)

  • There's no need for you to be sworn in.