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

  • I am grateful, sir. I think the Guardian had three points in our letter on Friday. Several of those have fallen by the wayside. The standard of proof point, I think our concern, at this stage, was this, that it was potentially premature.

  • I am very comfortable to defer that. What I wanted to do was to put on the table some of the issues that are involved, right?

  • I am grateful. It may be that the civil standard is appropriate. It is just, at this stage, until the level of the detail of the Inquiry --

  • It is not just whether it is civil or criminal, it is also to what extent it is appropriate for me to be able to approach issues on the basis that, without making a finding of fact, that X has happened in Y circumstances, it is appropriate for me -- I am not prepared to say it hasn't happened and it is appropriate for me to approach issues, such as recommendations, on the basis that I must guard against that risk. You see the different point?

  • Absolutely. Our concern was that the notion of suspicion, or the Inquiry were raising concerns based on suspicions should be used in relatively tightly confined circumstances, as the Baha Mousa ruling.

  • Yes, but Baha Mousa is -- it is a different sort of Inquiry and very different circumstances, which is of the traditional sort, rather than the type that I have, and recommendations as to how individuals should be treated are themselves different from the wide ranging issue that must encompass areas which, inevitably, aren't specifically the subject of complaint, create different problems.

  • Yes. That may be a submission for another day when we know more about the --

  • Sir, can I just pick up on this advance notice to witness point that Mr Dingemans has been making submissions in relation to? It is a submission which we would support. Obviously, there is a need for flexibility in how the Inquiry goes about its work. One can see the instance of a witness being recalled at relatively short notice or a new witness being, having to come in and fill in a gap in evidence, in which case notice requirements may have to be amended or just the best that can be done in the circumstances, and we are grateful for the steer that your Lordship will give as much notice as possible on that regard.

    But in terms of lines of questioning and indications of documents, again, I don't think what we were contemplating in our letter was a bulleted list of questions, as one may be prepared by counsel for the Inquiry the night before they come into the hearing, but we would submit that this is an area where the witness should be provided with at least the outline areas or subject or issues which he or she is likely to face questioning on.

    Similarly, in relation to documents, particularly given in this case, as I understand it, the witness will be -- the document concerned will be flashed up on screen electronically, and so, just in terms of recognition of documents, as much as anything else, and again, it may not be possible to provide a universal or a completely comprehensive list, but if there are particular documents which the Inquiry wants to speak to a particular witness about or obtain evidence in relation to, we would say that would be helpful, in these circumstances, as things are said.

    It is a relatively pressurised environment for a witness to walk into. A lot of the witnesses, as your Lordship has said, are busy people. The Section 21 notices themselves are relatively wide ranging in a number of cases. They cover quite a lot of ground. Some of it relatively historical, in terms of it goes back -- several dates are given in 2005 as the starting point.

  • I wouldn't want to speculate, sir.

  • But to that extent, and witnesses may be giving evidence, which is in some respects secondhand, that people in their organisation know about but which they are providing the evidence to the Inquiry for, and in those circumstances we would say, in terms of the appearance of the evidence which those witnesses give to the Inquiry, indications of the issues which they are likely to face questioning on is going to enhance the evidence gathering process. It is not a question of witnesses being tripped up or hijacked, as your Lordship said. The woe would be, if a witness was hijacked, they would give partial or incomplete evidence which doesn't actually make sense or wasn't correct, and that can't be in the interests of the Inquiry going forward.

    As I said, sir, it is not a question of -- we are not seeking a bulleted list of questions, but issues which a particular witness is likely to face questioning on, and indications to whatever level of particularity the counsel to the Inquiry feel able to give, we would say, would be beneficial to the Inquiry as well as the witness.

    The second point in relation to that, sir, is in relation to this idea of suggestions to counsel to the Inquiry of supplemental areas of questioning, areas which counsel to the Inquiry may not be intending to go. If issues have been provided to the witness and the other core participants, as to what the witness is likely to face, we would say that process is likely to be enhanced as well, in the sense that you will be able to identify immediately if there is a particular issue which counsel to the Inquiry are not intending to pursue but which another core participant considers relevant or believes would be helpful for the witness to answer questions in relation to.

    The alternative, I guess, is that --

  • One can't have a system whereby everybody is exchanging details about what the witnesses may deal with because, otherwise, we would never get anything done. You are not really suggesting, or are you suggesting, that counsel should be telling all the core participants, that, "Well, we are going to call this witness on this topic, or these topics", or are you saying that they ought to say, "Well, it's going to be that area, that area or the other area and these are the documents we are going to be referring to", what are you talking about?

  • To a degree on that front, we would say that there should be an element of transparency in the process, in the extent that there is the power or the ability for another core participant to ask counsel to the Inquiry to ask questions of a particular witness, not their witness.

  • Yes, I understand. Indeed, that is open not merely to core participants. I have made that clear, but that need be no more than once the witness's statement has been seen and it will be clear which general area the witness is going to be coping with, for core participants to say, "Well, I hope you are going to be dealing with subjects A, B and C", and then you will listen to the evidence and, if you think there is something really pressing to add, then you will be able to ask me or have a word with counsel, because I don't suppose these things will go without breaks and, if necessary, then say to me, "Well, actually, there's this area additionally", to which I will say "All right, you have five minutes to cover that topic."

    That sort of ruling, if one dignifies what I have just said by that word, retains flexibility but equally keeps the momentum of the Inquiry moving forward.

  • I am grateful. If it is going to be that flexible in terms of this supplemental questioning process, which may not arise very much at all.

  • It may arise but I won't necessarily say it will happen. Not because I am wanting to shut people out. It is because of what we have to cover.

  • I quite understand.

  • Sir, I would just reiterate the point about advance notice. If issues can be highlighted, even in their broad sense to witnesses --

  • Sir, I think that is everything.