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

  • MR CHRISTOPHER WALSH ATKINS (affirmed).

  • Thank you, Mr Atkins. Could you please state your full name just for the record.

  • My full name is Christopher Walsh Atkins.

  • You've provided a witness statement to this Inquiry which you should find in the folder which we've prepared for you, right in front of you. Can you confirm that the contents of that witness statement are true to the best of your knowledge and belief?

  • Let me just ask this question as well. Your image is not being displayed for reasons which are set out in a request made to the Inquiry by you or on your behalf. Are those reasons true?

  • You've already also provided a number of annexes or exhibits to your witness statement, and they are essentially transcripts of either telephone calls or meetings that you had with various journalists. We'll turn to those in more detail later in your evidence, but what I want to confirm is this: is the content of those transcripts true to the best of your knowledge and belief?

  • Are they full verbatim transcripts of the telephone calls and meetings that you had with the journalists involved?

  • Are they full and complete, ie does the transcript record every word that passed between you and the journalist on each of those occasions?

  • No. In the case of the two additional transcripts supplied for the People and the Sunday Mirror, it's, I think, approximately half of the meeting.

  • Can you tell us why you haven't provided full transcripts to the Inquiry?

  • There's a basic journalistic principle that you don't put unedited journalistic material into the public domain unless it's absolutely necessary. This is something, I think, that the newspapers in question will understand themselves, that they would never put unedited journalistic material into the public domain. It was actually the request of this Inquiry that I put larger sections into the annexes, which I've decided to do. There's nothing that's been left out that would in any way change what is being alleged of the newspapers and their behaviour.

  • I think I'll leave that there. If anything else arises, we'll deal with it then.

    Can I ask you, pleasure, to turn to the first page of your witness statement. I want to ask you very briefly about your background. Paragraph 1, you confirm that you've been working in the British film industry for about 12 years. In your 20s, you produced a series of independent feature films with Richard Jobson, Sixteen Years of Alcohol in 2002, nominated for five independent British film awards -- and you won two -- a number of other films, including The Purifiers and A Woman in Winter. You then went on to direct the feature documentary Taking Liberties, about how the Blair government eroded civil liberties under the guise of the war against terror. That was released in 2007. It was nominated for a film BAFTA in 2008 for best first time writer/director and was screened on More4 in the True Stories strand. Is that correct?

  • That is correct. I think they're called British Independent Film Awards. I've just noticed that error. Very upset about that.

  • We're going to show an extract from the film Starsuckers in just a moment. Let me ask you about now how you came up with the idea, if I can. You refer to this at paragraphs 2 and 3, but perhaps in your own words, if you could just tell us why you decided to make the film which ended up being Starsuckers in due course.

  • Over the course of making Taking Liberties, we were looking at the reasons that various laws had been passed that were eroding our basic rights and freedoms, and in lots of different cases, we found that the tabloid press -- and certainly the Murdoch press in particular -- were playing a very active role in increasing a climate of fear in amongst the British public, and there were certain cases -- for example, the raids in Forest Gate -- where the Sun and the News of the World were just actively smearing the suspects with information that presumably had been fed to them by the police. You also saw, in the case of Charles de Menezes, they effectively smeared a dead man. There were all sorts of lies put into the media and happily printed by various newspapers about Charles de Menezes that turned out to be wrong.

    We saw that no one was really correcting the press on this. We saw that the rest of the media was very unwilling to expose wrongdoing in the tabloids and I also read Flat Earth News by Nick Davies and I saw a wealth of material there, ample prima facie evidence for all sorts of wrongdoing in the British press, particularly in the tabloids, and no one else was following this up, and I just thought it was a very kind of fertile area to make a documentary about.

  • You tell us at paragraph 4 that you made the film over a period of two years and you released it in 2009; that's correct? And you go on to tell us that the chapter that's of most relevance to this Inquiry is the section on the news media, and that lasts approximately 30 minutes.

  • We'll come onto that. We will show that, but if I can break it down this way. There seem to be four particular areas that this part of the film covers: paparazzi, and the way that they operate; secondly fabricated, inaccurate stories; thirdly, kiss-and-tells, we'll see in a moment, and then fourthly, what you describe, I think, as criminality of the tabloids. This is also referred to as the medical records sting.

  • The film will be self-explanatory. Before we go on to show that, I'd just like you to explain whether you tried -- before exposing the tabloids in the way that the film does, did you ever try to speak to any of the journalists or any journalists on the record about their working practices?

  • Absolutely. I mean, we tried extensively for well over two years to try and get people to go on record and tell us what really goes on in tabloid newsrooms, and I think that the public at large had a right to know that, because the public pay for news through their -- the cover price and through absorbing advertising, but are pretty much left in the dark as to the veracity of the stories and the techniques used by the journalists to acquire them, and we asked -- I couldn't give you an exact figure, but I'd say definitely probably about two dozen people to go on record. We put in formal requests to all sorts of publications and were turned down. I remember particularly the Express and Northern & Shell said they had a blanket policy of no filming anywhere the buildings ever, for example, and I believe the same is true of Wapping.

    And we're not the only people to have tried it. I mean, many people over the years have tried to make documents about what life's like -- you know, how the tabloids operate, and they have a very strict sort of no filming policy, and even to the extent where you -- very rarely do you get journalists and editors and proprietors even going on record. So you don't have the editor of the Sun going on the Today programme to defend themselves. It as kind of -- I think this has changed now after the death of the News of the World, but there was this kind of brick call wall, this sort of fortress mentality, that you don't explain yourself, you don't go on record, you don't discuss these things.

  • In the light of that blanket refusal, what did you decide to do?

  • We decided to use subterfuge, being the only sort of option left available to us, and we think in each case the subterfuge was proportionate to what it was we were trying to expose, and we knew when we were making the documentary, especially given the experience of my previous documentary, Taking Liberties, that we definitely wanted this to appear to television. So we set ourselves a very high professional ethical standard because we knew that it would have to go through an Ofcom audit and -- we'll come to this later but the regulations in Ofcom are sort of much, much higher than they are for the press, so we knew it had to withstand that, but we set about using various means of subterfuge in the public interest to investigate how the tabloids behaved.

  • Did you have legal advice before --

  • We had extensive legal advice throughout that continues to this day, but yes, we took extensive legal advice.

  • Would you like to explain a little bit about what you were doing in each of those: paparazzi, fabricated stories, kiss-and-tells and the medical records sting. Would you like to give us a bit of an introduction or should we just show the film?

  • I think just -- I'll quickly run through each one because if you look at the paparazzi, there's actually -- in the course of making a documentary like this, you film over two years so you collect a vast amount of material and only a fraction actually goes into the film and it's my job as director to decide what goes in and what goes out. There's various things -- if I was making the film specifically for the Inquiry, I might have made it differently, because there's lots of material that we sort of found when the Inquiry was announced we thought might be of interest. So for example, with the paparazzi section, there was a guy called Owen Beanie who ran -- I think he still does run -- World Entitlement News Network and I got him to speak very candidly about the Britney Spears situation, which then was sort of exploding in Los Angeles. I won't read it all out, but there's a section here in the transcript which I think is worth reading about how they actively misrepresent situations, and in Spears' case was trying to make her out to appear suicidal and were happily selling these images and the story attached to all British news outlets. And not just the tabloids; everyone was buying these images.

    The point we make obviously when we look at Kev the pap in Soho is that essentially the people were accusing Pete Docherty of a crime which he wasn't. The bit that got us the most attention is the fake stories, and I think the fundamental question there is: will tabloid journalists check facts? That was kind of our initial decision when we went out to do that.

    And kiss-and-tells -- again, it was something that we had a huge amount of off-record information about, how kiss-and-tells are actually engineered by the tabloids and how they have this sort of ever-replenishing army, shall we say, of kiss-and-tell girls who essentially almost sort of -- not sent out, but targets are suggested to them. So they'll know if they sleep with a certain celebrity, they'll get a certain amount of money, but we weren't able to put as much of that in as we wanted because a lot of the information wasn't particularly reliable because of the nature of the sources.

    But yes, then with the medical records sting, we were essentially looking just to see if tabloid journalists would act within the law when it came to sourcing stories. So that's the set-up of what we're about to see.

  • We're just going to show a very short clip on churnalism. Can you tell us what churnalism is?

  • I think the phrase was coined by Nick Davies, which is this process by which a press release will be regurgitated as news and how public relations has managed to infiltrate all parts of the British news media. Nick Davies and I think Aberystwyth University did a study and they found that 54 per cent of news articles in the national media are wholly or partly sourced from public relations, and public relations is essentially there to not serve the interests of the readers and viewers; it's there to serve the interests of the advertiser or the politician or whatever it is.

    What happens is people write a press release and they send it in to the newspaper and the newspaper cuts and pastes that and puts it as a news article and presents it to the public as news that's been sourced and verified and everything else, when of course it's nothing of the sort.

    So the Media Standards Trust came up with this rather clever idea for a website called churnalism.com, where people could insert press releases and find out which news articles had been cut and pasted from those press releases. They wanted to publicise it and they came to me and said, "Would you help? Would you do some hoaxes?" I seem to have this reputation now as a sort of hoaxer but I do actually do lots of other work. And I thought it sounded like a great idea, so we basically created a series of fake press releases and sent them into news rooms to see which ones would get picked up. That was earlier this year.

  • I will ask you about that in more detail.

  • If we just show the extract.

  • Just before you do, you've said something which was something of a tease. You said that if you'd been making the film for the Inquiry, you might have put some different material in than you did in fact put in.

  • You said that some of it you'd included in your statement, and the statement is there for us to see. But do I gather from that that there is, on some cutting room floor, a great deal of other material which is relevant to the circumstances of the Inquiry?

  • I like to think I've been working quite hard at this, so I'd like to think that everything I think is relevant to the Inquiry is in my statement and in the annexes as well. There are some extensive annexes. The letter from Bob Geldof, for example, runs to 6,000 words and it's there. You can read it or not but --

  • Thank you very much. That's the confirmation I wanted.

  • Sir, once the two clips finish, apparently we will need to rise for a very short time while we ensure that the feed is back on; is that right?

  • Because the film isn't going anywhere.

  • The film isn't going anywhere, but the audio will need to the switched back on once the film has been shown.

  • Don't ask me any difficult questions about that, please.

  • (Starsuckers Media Section DVD is shown)

  • (Churnalism Short Film DVD is shown)

  • Do you want to put the audio back on?

  • It will just take a few minutes, as I understand it.

  • (A short break)

  • Thank you very much indeed, sir. I think now the audio feed is back on. Hopefully no camera, just audio.

  • Mr Atkins, come back to my questions. I am going to deal briefly first with the paparazzi. We've seen the excerpts from the film dealing with that. I don't want to dwell on it for too long but if you look at paragraph 10 of your statement, you explain you approached Mr Beanie of WENN and he allowed you to accompany some of his photographing when they were following Britney Spears?

  • This was a time of great turmoil for Ms Spears, as we know, and you say you saw repeated incidents of paparazzi breaking the law, including life-threatening dangerous driving, trespass, breaking and entering and violence. Can I just assume for the moment that this all took place in the United States?

  • We know that you followed Kevin Rush, the paparazzo, in the UK, but did you ever witness any of that type of behaviour in the UK?

  • I need to be careful what I say. Not as bad, but certainly dangerous driving is an absolute given for paparazzi. Violence, yes. It's a very tough world, especially now that everyone has a mobile phone and can take pictures. You see lots of people who aren't really trained photographers kind of converging around celebrities and celebrities themselves -- sorry, paparazzi get very angry that members of the public are stealing their income. But you also see it the other way around. You see members of the public getting angry at paparazzis for trailing the celebrities, so we did see quite a bit of violence, but not anything as bad as the Britney Spears situation.

  • Before I turn away from the paparazzi part of your witness statement, is there anything that you'd like to say?

  • No, I think it's all covered in this.

  • The second thing I want to ask you about is the fake stories or the accuracy of tabloid journalism. This part of your witness statement starts at paragraph 17. We saw, when we saw the extract of the film, what you were trying to do. A researcher from your team would ring up one of the tabloids and give an entirely false or partly false story and then you would wait to see whether it would be picked up and then printed in that particular tabloid the next day. Have I summarised that accurately?

  • Yes, yeah, that's about right. The entirely false -- what we did is we researched the celebrity's location, so -- and that actually we did quite often from the tabloid newspaper's website itself. So where they were was correct and everything else was fictitious.

  • So that the story would have a ring of truth?

  • Yeah, it would also be able to be sort of checked within the realms of the information that was already in the public domain. Although something that did happen while we were doing it -- we didn't even run this story, but I think the Metro managed to have Bono on both sides of the Atlantic at the same time, so even outside of what we were doing, we could see that that didn't always stack up for the news desk. But yeah, we decided to stick with location, and everything else above that was fantastical.

  • There are actually two paragraph 21s of your statement, I have noticed.

  • The second of the two, top of the second page there, you say that you created six celebrity stories and you fed them to the newspapers over a two-week period.

  • Were there any more or is that it?

  • Yeah, if you look at paragraph 23, I tried -- I think it was actually a little later. I was actually annoyed that my researcher had kind of had all the fun, so I thought I'd try one and we tried a story about Alan Sugar which wasn't run, but we subsequently discovered that he was very litigious, so they -- basically, tabloids don't like running stories about him that isn't PR for The Apprentice, but yeah, of the six that Jenn created and fed through through that two-week period, they were all run by at least one tabloid.

  • You tell us at the second of the paragraph 22s that your biggest story was in the Sun, revealing that Sarah Harding from Girls Aloud was secretly a fan of quantum physics. We saw that obviously in the film as well. You say it ran as a lead story in Gordon Smart's Bizarre column and there was a fabricated quote:

    "There's a lot more going on under that blonde barnet than Sarah's given credit for. She's a smart cookie and does read an awful lot."

    You say that this quote didn't come from Jenn, your researcher?

  • Showing that the Sun will add fictitious quotes into their articles as well as not running basic checks. Now, I've been asked to put to you that the Sun did in fact check the story with her PR and it was the PR who gave them that quote. Do you have anything to say?

  • I find it a staggering coincidence and remarkably convenient, shall we say, for the Sun newspaper to come up with that, and it's the first I've heard about it and they've had two years to sort of make a mention of this. And certainly at the time, when the Guardian put this story to them, they didn't say that. In fact, they actually said, "Look, look, it's true, it's in our newspaper, and look, it's all over the Internet", without realising that actually it was us and them that had put it there, so yes, I find that a remarkable coincidence that they've managed to come up with this.

  • I hear some whispering. Just give me a moment. I don't think I need to ask you anything else about that.

    I'll ask you now about the Guy Ritchie story we saw on the film, the juggling cutlery in Scott's restaurant.

  • Again, I have been asked to put to you that most of that story was in fact true. It was true that he'd been at Scott's; is that right to the best of your recollection?

  • I mean, as to whether it's true or not, we read in the Sun that he was at Scott's so -- we don't know whether he was there or not, but yes, in our story we said that Guy Ritchie had been seen at Scott's by Jenn, who was pretending to be a waitress, yes. So that element we believed was true.

  • And it was true that he'd been drinking that evening?

  • People do drink in restaurants, yes, I'm sure.

  • And it was also true that he had a black eye?

  • He didn't actually have a black eye. He had a very slight mark on his cheek which I noticed in a photo, so we thought how -- we wanted to riff on that and thought: "Okay, where did he get it from?" Tabloid journalism is always about continuing the narrative, so I think the Sun had already reported that Guy Ritchie had been in the restaurant, so they were obviously looking for something to spin it along further. So we came up with the story that he had been juggling cutlery, which of course he hadn't. I don't know how you juggle cutlery. It's a ridiculous thing to do. That bit we invented, but I don't think he actually had a black eye; he just had a very small mark on his cheek in the photograph.

  • I have been asked to put to you that they did check the story with a source and the source confirmed that he'd been at Scott's, that he had been drinking and that he did have a black eye and therefore did do just what you would suggest they did, they did check their facts.

  • I think they checked their own website, which is exactly the same thing we did, but the crucial -- people go out every day, people drink every day, people go to restaurants every day. People do not juggle cutlery and stab themselves every day. So they didn't check what I would say is the ridiculous, fantastical bit of the story; they just checked where he was, and he had been in a restaurant and he might have had a glass of wine. All that was known from their own website. But the absurd part of the story, they just wrote down and put in their paper without checking.

  • If we look at paragraph 24 of your statement, you tell us what we can conclude from this evidence. You say:

    "We concluded from this evidence that chequebook journalism is structurally designed to produced exaggerations and distortions. Celebrities are usually fairly dull people, particularly footballers and actors, who rarely do anything particularly newsworthy. Conversely, the more unusual or funny the story, the more valuable it becomes. Those selling celebrity stories are obviously motivated by profit rather than accuracy, and will be naturally inclined to exaggerate and distort the truth in order to make more money from the newspaper paying them."

    Can I ask you this: these stories were all published, by and large, in the gossip sections of newspapers. Is there any problem, Mr Atkins, with the reporting of stories as gossip if stories aren't defamatory or malicious?

  • They were run in the celebrity pages. I don't know if they're necessarily called the gossip pages. To my mind, from what I remember of those stories, they were presented to their readers as fact. There wasn't a "we hear that". They were presented as an absolute sort of direct piece of actuality. I suppose the question is would you -- if Gordon Smart put under his byline or his rather large photo in the Bizarre column "probably not true", then we probably wouldn't be so concerned about hypocrisy, but whenever these journalists go on record and talk about their craft, they talk about it as though it has like the same rigours of all the rest of their journalism.

    In fact, there was a quote from Dominic Mohan, who is the editor of the Sun to this Inquiry -- he stood up and made is speech and said:

    "The way showbiz journalists operate is like a political journalist in the lobby."

    So he seems to be making a direct comparison, to my mind, between the rigours of political reporting as he is with his celebrity reporting. So they're presenting these stories as fact. And also, celebrity stories dominate these newspapers. I think it's no longer the case that you have the gossip pages anymore. You buy a copy of the Sun or the Star -- celebrity is throughout, and this is what we were sort of looking at in the film, is how it has kind of spread to all different parts of the news media, taking these sort of lax standards of fact-checking with them.

  • I think I understand the point. Is your view then that newspapers should be prevented completely from printing gossip or rumour which they cannot check factually?

  • Gossip is -- I have several pages of notes on gossip. Gossip and rumour can be very damaging, and it can ruin lives, especially if it's not true, and I think we rely on journalists to sift through gossip and rumour and tell us what they think is true. If you're spending 50 pence or whatever on a newspaper, you're hoping that many so of that money has gone towards someone doing some basic checks. If you want wild, unsubstantiated rumour, we have Twitter, and I think journalism is all about verification. It's an absolute bedrock of what I think most people in the country think journalists do is to check and verify and see if things stand up. And if you put a rumour in a newspaper, you're giving it credibility just by printing it.

  • But isn't the great British public able to decide for itself what they think might be rumour and what is real news?

  • But if we said, "Chris Atkins denied rumours that he's having an affair", straight away you've put the concept of me having an affair into the public, and a proportion, maybe lots of the public, will now think that I'm having an affair just because a newspaper has printed that. And it's a very kind of underhand way, I think, often of slipping stories out into the public that they can't stand up, and they can't stand up because they might not be true. So let's just call it at that rumour, some are saying. Well, how do you define rumour? Is it four people in the newsroom reckon it might be true? "Let's call a rumour, let's whack it in." That's someone's life ruined.

    And I find that sometimes rumour is used as a cover for getting, as I say, stories out there that don't have any factual backing. I think some of the reporting in the Chris Jefferies case, a lot of that was rumour and insinuation. That demolished a man's life. It's a smear campaign. So I think rumour, one has to be extraordinarily careful with it and I think newspapers should be very careful with using rumour, but often they're not.

  • One of the solutions that you suggest in your witness statement is that what they should have done in each case is to check with the respective celebrities PR at the very least, but then you go on complain later on in the film that PRs are guilty of essentially mass deception. So how do you match the two?

  • I don't necessarily -- it doesn't necessarily have to be with the PR. It could be with an agent, and even though, yes, PRs are inherently unreliable, at least that's a check. At least a phone call has gone through and you would hope that the people that they're checking it with are acting in the best interests of the celebrities, maybe even call their lawyer, maybe even call them. But the fact that no checks were made, even, as I say, to a PR, it shows that these newsrooms are just -- as I said, we called them up, we gave them fantastical lies, and they wrote them down and put them in their newspaper the next day, without anyone calling up and asking anyone whether or not it might be true.

    So yes, I'd be the first person to say that PRs are sometimes unreliable as a source of truth, but in that instance they're probably better than nothing. What we got were nothing.

  • Some might say that the stories that you planted were harmless, didn't hurt anybody's feelings, just a bit of gossip, the public are able to tell the difference between a bit of gossip and some real news. No? Any thoughts on that?

  • I think one of the problems that we have is how these news standards spread throughout the newspapers and I think they spread with the journalists who practice them. So you have -- when journalists start on tabloid newspapers -- and again Richard Peppiatt has helped confirm this. They often start to the celebrity desks. It's often one of the first jobs they have. If they thrive there, and if they thrive there by not checking facts, and in some cases even fabricated details -- the Daily Star added to our Amy Winehouse story that a friend of Amy's ran in and punched her in the head to put out the blaze, and that was just -- that didn't come from us and I don't think that was given by a PR. So they'll fabricate quotes, they won't check facts, they'll add their own details to it, and if they're successful on the celebrity desks in this regard, their behaviour isn't punished; it's rewarded. And quite often they get promoted to other parts of the newspaper where they have far more control and impact, and in the film we gave three examples: you know, Piers Morgan, very successful celebrity journalist, went on to run the Mirror and then had to leave his job rather abruptly because they didn't properly check their facts over some photos of British soldiers apparently abusing Iraqi prisoners, which of course was nonsense.

    Then you look at Andy Coulson. Well, he was a very successful gossip -- celebrity journalist and I don't need to tell anyone in this Inquiry where he ended up. And same with Dominic Mohan who is now running the Sun. So I think that people learn their journalistic craft on the celebrity desk and then, if they're successful, very quickly move on to other areas. Richard Peppiatt was telling me that someone would be writing -- at the Daily Star, one day they would be writing a sorry about Bubbles giving evidence at the Michael Jackson trial, and the next day they would be writing a story about global warming. And it's the same journalists with the same ethical values covering both.

  • Why do so many tabloid editors come from the showbiz desks?

  • Celebrity stories are massively commercially successful. They are the single most successful stories in newspapers. They boost circulation, they increase clicks on websites. So if you are adept at handling showbiz stories, you will rise up the career ladder at a tabloid newspaper. Gordon Smart has just been apparently voted -- recently, about a year ago, after Starsuckers, was voted the number one celebrity journalist of the year, and second was Clemmie Moodie at the Mirror, and both of them ran our stories. So you can see that if they just stuck to printing what was rigorously factually true, it would be really dull news articles, so they want to add the spice and the sparkle and the extra fluff around the edges to make the stories more appealing. Those who stick to the facts aren't going to succeed.

  • Let me move on to churnalism. Again, I'll do this briefly because it's extensively covered in the clips that we've seen. We saw the extract about the chastity garter and you explained in the film, I think, that it was published on the Mail Online and in the Daily Star, that story. That's right, isn't it?

  • The Daily Mail wanted me to point out -- and I think this was confirmed by your clip, wasn't it -- that the story was pitched originally to the Daily Mail news desk, it was rejected, but then once you had fed it through to the news agency, they then picked it up and it was then that it was published online; is that right?

  • Absolutely true. I make that point to show how important news agencies are in this whole machine. It's the same with PR. I don't think you can just say, "Oh, it's a newspaper, let's look at the newspaper." They have these other things sitting behind them and one much them is news agencies. There's quite a lot of local news agencies in Britain that basically feed stories into the national press, and that's what we found, this agency called Caters News Agency, which, as far as I can understand, is just a couple of people sitting in an office in Birmingham.

    After the Mail said no to this story, for whatever reason, we sent exactly the same story to Caters News Agency, and within minutes they'd put it on a newswire and sent it back down to the Mail, who then -- word for word, identical story -- then said, "Oh, it's on a news wire, it must be true", and then copied and pasted it onto their news site. This all happened extremely quickly, within hours.

  • That begs the question: did the news agency take any time to check its facts?

  • Absolutely not, no. They said, "Great, let's run it", I think. I might even have the emails.

  • I've been asked to ask you whether you're aware that the agency spoke to the alleged husband and wife team who had come up with this invention of the chastity garter. Is that right?

  • Absolutely not, no. It was a handful of words email. I can dig up the correspondence if you want, but it was like: "Great, we'll whack it on the wires." It was something like that. I think after the event, after they saw how successful the story was -- because it was the most-read article on the Daily Mail's website for quite some time -- I think the news agency, sniffing some money, came back to us and said, "Could we do an interview? Could we speak to the husband and wife as a follow-up article, maybe sell it for the women's magazines?" And we looked at this and thought while it might be quite good fun, it wasn't actually in the interests of what we were trying to prove with the hoax, so we said no. I think they're probably getting confused with that. But no, at the time we sent it to Caters, they copy and pasted it into the wire and sent it to London, all in a matter of hours, with no checks.

  • Are you saying, Mr Atkins, that newspapers should never use copy provided by PR? Isn't that unnecessarily pedantic in your view?

  • I think if a news article is based, more than half the news article, on a press release, I think the public has a right to know that. Again, the public is trusting journalists to give them an objective look at what is true and what's not, and if they're just copying and pasting huge chunks from a press release in five minutes, that's -- they're failing in their job.

    You have advertorials in newspapers and you have a full page that is sort of promoting Coke or whatever, and because it's sort of advertising looking a bit like a news article, you have to put "advertorial" on the top. My understanding is that regulation is quite old, and I think the same thing should apply to PR. PR, press release, is just a very good way of circumventing that rule. So what you'll do is you'll get a newspaper article, you'll read it, and think, "This journalist really thinks that Tesco is an amazing supermarket", or whatever it is, but the public won't know that all of that story, all that copy, all those photos, have actually been provided by the supermarket.

    So I think 50 per cent is a good arbitrary tipping point. When it goes over there, it's the public's right to know. It doesn't say you can't run the article. It just means you just have to be honest about its source.

  • Is it a question of labelling? In other words, for this stuff, you know: "The material provided by the manufacturer tells us that..."

  • For the celebrity stuff, it is: "We've received an anonymous tip-off that ..." I'm not suggesting the words, but is it more than labelling?

  • No, I think, as you said, the public are smart. I don't want to denigrate the public too much, but I read newspaper articles that I know are sourced from PR because I can see it, I spent so long looking at it. I still read the article because I'm actually interested in this product or this film or this service or this government press release or whatever. I'm still interested. It's just I can make a more accurate assessment of how much I take it on board, knowing its source, so I think absolutely with press releases, just say advertorial or churn or from Bell Pottinger or whatever it is, and then the public can make their own mind up.

  • All right. I'm going to turn on to the medical records sting, if I can. Let's start with the basis for it. It's paragraph 30 onwards of your statement in case you want to find where we are.

  • You say at paragraph 31 that what you wanted to do was to test the Sunday tabloids to see if their journalists were willing to break the law and the PCC code to obtain private information about celebrities that was not in the public interest.

  • Just to make it clear, you did not have any real confidential information to sell, did you?

  • None whatsoever, no. It was all fictitious.

  • You explain that you would pose as an intermediary who was selling the details of celebrities' plastic surgery operations but was ignorant of the rules of modern tabloid reporting. You would claim that you were the ex-boyfriend of a nurse who worked in a plastic surgery clinic who had evidence of high profile celebrities having operations. You say:

    "Given the intrusive nature of the stories, the newspapers would be likely to need to obtain proof that the stories were true in order to print them. Any such proof would inherently involve a breach of the Data Protection Act, which prohibits the sale of medical records. Even harvesting information to research the stories would ostensibly involve a breach of the DPA."

    Did you take legal advice to that effect before you carried out --

  • You go on to say:

    "The DPA does have a general opt out for journalists when the information is in the public interest ... so we deliberately created stories that, while of interest to tabloid readership, could never be classed as being in the public interest. The PCC code also makes it clear that health issues are extremely sensitive."

    And then you set out the relevant parts of the PCC code. Again, did you get advice on whether or not this sting or purchasing information that you were going to offer would be in breach of the PCC code?

  • Yes. There was actually quotes and I came back to this before, but Paul Dacre, in his capacity of, at the time, the chair of the Editors' Code of Ethics on the PCC, went before Parliament and discussed --

  • Yes, 34, 35 -- in which this was discussed and he said -- Alan Keen, who I think was an MP:

    "Do you think the public is entitled to any privacy. You have explained one or two examples. Medical records."

    Mr Dacre:

    "Absolute privacy guaranteed. It's part of the PCC code. No question."

    Alan Keen:

    "Medical records?"

    Mr Dacre:

    "Absolutely."

  • Lets turn to what you did. At paragraph 36 you explain this succinctly. To initiate the investigation, 20 March 2009, you called the news desks of The Sunday Express, The News of the World, The Sunday Mirror and The People. We've obviously seen extracts of the telephone calls and of the meetings with various journalists in the film, so we can probably take this quite briefly. I just need to ask you a few questions and I have been asked to slow down again, now twice.

    Let's start with the Sunday Express if we can. This is important that we do so. In a nutshell, what did the Sunday Express say when you indicated that you might have confidential medical records for sale?

  • They categorically said that this was not something they could in any way be involved in, and they didn't even want to hear what the details were, which I thought was quite comforting, actually, to have the Sunday Express say this. But I will just read a quick line from the phone call, because it sums it all up:

    "From our point of view, there would be three really difficult areas: a privacy side of it -- and there's the privacy side with the fact that it's a health issue, which makes it even more private from her point of view. They would also be regarded as a sort of breach of confidentiality as well, a legal minefield."

    And pretty much put the phone down.

  • Good. Let's turn to The People then, if we can. You spoke to a journalist called Sarah Jellema at The People; is that right?

  • First of all we spoke to a news editor, Tom Carling, who I understand is still news editor of The People, and he listened to our story first. This is actually in an annex which I supplied to the Inquiry. We explained to him -- I explained to him first what the situation was, and he weighed this up and then put us through to Sarah.

  • Do you want to look at that extract, that transcript of the telephone call?

  • Not particularly. I mean, it's just we told him what we were about and he said, "Great", and put us through to the journalist.

  • You then spoke with Ms Jellema. Can I ask you to turn, please, to tab 2 in the bundle. For the technician, it's 49038. If we look at the top half of the page first, you'll see the conversation that you had with Mr Carling.

  • And you see then, about three-quarters of the way down the page, a section that starts:

    "Well, we're definitely interested in these sort of stories. Obviously, we've got to be very careful with -- you know, there's a new wave of privacy laws, but you know, lots of people in the public eye are quite open about the work that they've done, you know, stuff we can elaborate on, and it does entirely depend on who the individuals are."

    Anything wrong with that?

  • I think what he's opening the door to, as I was going to come to in a second, is this concept of harvesting. So what he's saying, I think, is to sort of give himself some kind of cover, to say, "Look, there are a new wave of privacy laws" -- well, we all know that -- "and we do need to be careful." Absolutely fine. But he then passes me on to a colleague, who is then instructed to come and meet me and to harvest as much private medical information as they possibly can, so I do -- it's a nice little touch to say, "Oh, got to be careful", but then proceed to action an investigation by his newspaper that, as far as we're concerned, is definitely breaking the rules.

  • You were then passed on to Sarah Jellema on the telephone. I'm going to skip to the fourth page of that exhibit, halfway down the page, where she says:

    "Yeah, definitely. It sounds like it would be right up our street, to be honest with you, so whereabouts do you live?"

    And then you arrange to meet her.

  • Out of fairness to Ms Jellema, is there anything else in that extract from the telephone conversation that you'd like to draw the Inquiry's attention to?

  • Not particularly. I think the telephone is call is in its entirety, so it's all there. She's working under the supervision of her news desk, it seems to me, so I think that in fairness to her, she was not a rogue reporter in this instance.

  • You then arrange to meet up with her and you do on 26 March 2009. The transcript is at tab 4 in its entirety, but it's summarised at paragraph 71 onwards of your statement.

  • It's probably easier if we go through the summary.

  • I'm sure if anyone wants me to add anything, we can come back to it. Could I ask you to draw out for the Inquiry the particular passages that you think are relevant to this issue?

  • Sure. Well, her opening remarks:

    "Obviously, it's very legally dodgy."

    Which I think is what the Guardian used in its headline when it broke the story.

    "I was batting around with my news editor who you spoke to before, Tom ..."

    Which indicates he's sort of across this story.

    "... sort of ideas of how you might do it, ideas of maybe a spread of silhouettes or people hinting who might have done it."

    So that, to me, would indicate that they would take the information and do a kind of "have they, haven't they?" silhouetted story to shield where the information had come from. So even though they would be in possession of sort of illicit data-protected material, they wouldn't be letting the readership know that's what the source was.

    And then quite early on:

    "Obviously as well, the first thing we want to know is what back-up we have. There will be something written or whatever, just something for the file. I'm sure they'll want something, I'm not sure what. Some kind of documentary proof, yes."

    Paragraph 75 I found interesting. It's not specifically relevant to the breach of the DPA and so forth, but I thought it was quite interesting about how they operate. After I gave them the -- I said a member of Girls Aloud had had a boob job, but I wouldn't tell her which one, so she was obviously desperate to know which one. She said:

    "Even if it wasn't Cheryl [Cheryl being the most famous one] you could do a teaser on the front and people wouldn't know until they got inside. So you wouldn't even put a name on the front. You'd go 'Girls Aloud'. But if it wasn't, they'd do a teaser and everyone would be like: 'Oh, is it Cheryl?'"

    Which, to me, I think, indicated that they were essentially looking at tricking the readership, so even if it turned out --

  • By hinting that it's Cheryl, by knowing the readership will think that it's Cheryl and they buy the paper from the front page. They buy the paper and they get home and it's not Cheryl, by which time they've already spent their money.

    So just a little bit further on, paragraph 77:

    "I spoke to them [presumably the news desk] before I came down. They wanted names."

    This, I think, comes to the heart of this, and also what we were talking about when we come to the News of the World journalists. This idea of collating the information. So even without them printing it, by taking the information wholesale from us and taking it back to their news desk where, presumably, they store it and keep it on file, they are breaching the Data Protection Act, just by me verbally imparting the information, and those breaches do not have any public interest and from the data protection point of view, they're trying to become the data controller. They're trying to essentially have a pipeline from our clinic to their news desk, so anyone coming into that clinic with any kind of surgery, they want that information, and they later decide whether or not -- which completely goes against the point of the Data Protection Act.

  • And the comments on the PCC?

  • I think her comments on the PCC speak for themselves, really. That's why we intercut them in the way we did within the film. I think we've just got honesty, really, about how journalists view the Press Complaints Commission. Actually, right down at the bottom here, this idea that:

    "They will tend to take more risks if they think a PCC will be involved."

    So obviously they have these two types of potential restrictions, and one of them is a libel case or privacy in the courts, and another one is the PCC. If they think it's just the PCC, they'll push it further. So yes, I think her comments on the PCC speak for themselves.

  • Have you seen Ms Jellema's statement to the Inquiry?

  • Very briefly. You gave it to me just before I came in, so I haven't actually --

  • She says any views expressed about the PCC were solely her own views and not those of the newspaper for which she was working at the time and may not be representative of every journalist's views. What do you say to that?

  • It sounds like what journalists put in their Twitter bios, doesn't it? "All views are mine and not that of my newspaper". As I say, it's just a rare glimpse of honesty, of how journalists view their regulator. I'm not saying every single journalist believes that, but as I say, where we were unable to get anyone to go on record, then these comments, I think, are still quite valuable.

  • You say at paragraph 79 that the following week Ms Jellema called you, left a voicemail?

  • "The message said that they were very keen to do the stories, she had consulted with her news desk and legal team and they had asked her to ask us to provide a copy of the appointments book of the surgery or similar to prove that celebrities had been in and what they were for."

    Again, you say you'd seen Ms Jellema's statement to the Inquiry.

  • Yeah -- you'll -- I don't --

  • She says she returned to the office, reported back to the news desk and was told that The People would not pursue this any further. She then called you and left a voicemail message to that effect. What's your recollection of what happened?

  • As is in my witness statement, she called more than once and she was very keen to run the story. I actually felt a bit sorry for her because obviously I'd just basically ceased contact and she was obviously under pressure to -- it seemed, to be under pressure to make all this happen. And, yes, as I say, we made a specific note at the time, and it was discussed with my producers, that one of the messages said:

    "Can you get us a copy of the appointments book or similar?"

    And I think, therefore, that takes this beyond the excuse that some people have maybe presented to this investigation, which is: you never knew that they were going to run the stories so they could have just been mouthing off. I think this indicates they were very keen. Again, it's not Sarah acting as a rogue agent. It's with the authorisation of her news desk and legal team.

  • Have you kept a copy of any of these voicemail messages?

  • No, because it was a voicemail phone. It was a 'pay as you go', so we didn't.

  • Can we turn very briefly to the Sunday Mirror and the meeting with Nick Owens. Again, this is summarised in your witness statement, paragraph 45 onwards, and the reason why I ask you about this is you say later on that you believe Nick Owens' behaviour to be in the most blatantly in breach of the rules. So as we're going through, perhaps you could tell us why you take that view.

  • Certainly. I think this -- they all sort of cross the line to different degrees, and I'd be -- I think it's important to make that point, and I think with Owens, as he says right at the start, he has the eye and the ear of the news editor and the editor as well. I think he seemed to be a much more senior journalist in the organisation than maybe Sarah was in hers.

    Paragraph 47, I found this very interesting. When we were talking about the confidentiality issue and the source potentially losing her job for giving me information, Nick Owens said:

    "I understand that. I cover a lot of health stories, and I work with a lot of health professionals ... I work with people in that area as well."

    Now, we come to paragraph 48, and this is where -- we'll come to the public interest in a minute, but this, I think, sets that up in terms of how tabloid journalists view the subject of public interest, because they're talking about potentially reporting a story that's in the public interest and saying:

    "There isn't a public interest in reporting that somebody has had a gastric band operation unless they are a massively big name, then you might make a decision."

    You know, he comes on to say:

    "It's always up to the editor. Put it in front of the editor and she will make the decision."

    He steers the conversation onto documentation, paragraph 50:

    "Is there a document somewhere, piece of paper? Is there an email that would prove that she had it?"

    Then paragraph -- I didn't notice -- sorry, actually paragraph 51, there is quite a curious phrase. I'd like to note what he has to say about this. He says:

    "It's not like the NHS, obviously, where you phone up and they tell you about an operation that has happened on such a such a date."

    I don't know whether this is something they would do at the NHS, but I noted that earlier.

    So we're discussing about the process, about how he might have to go to his news desk and they might then come back and ask for documentation and he suggests a way around this, so:

    "Have you got anything available now? Do it in one."

    So he's essentially asking us to go away and start collating information right now and get as much as possible.

    Coming on to paragraph 56, we're talking about Rhys Ifans, who -- we had, again, fabricated a story that he had had a tummy tuck:

    "I think Rhys Ifans is funny because -- you know, Rhys Ifans wanting a tummy tick is a very funny story but then again, is it justified in the public interest? That's the problem. We could get away with Gemma [ie Gemma Arterton]. That's massive, good story."

    But then he revisits Rhys Ifans, after thinking about it:

    "Having a tummy tuck to get rid of Rhys Ifans' beer belly, isn't it -- it's a fucking good story. Of all of them, you could do Rhys. You could probably do Rhys Sunday. Rhys you could probably get away with because it's so funny."

    Then just the last bit of paragraph 59:

    "The thing to say to your friend is what can you get, because the more the better, really."

    This is in the context of medical documentation.

    "If she can, get a document on everything."

    That's why I think his behaviour was the worst.

  • You then go on to say that he went on to write an article about Chris Jefferies which was defamatory. You don't enclose that article. What I've done is I have printed out one of the exhibits to Mr Jefferies' witness statement. It doesn't need to -- in fact, it probably shouldn't be shown on the screen, but for the other core participants in the room, it's document 31991, and I've caused it to be handed out this afternoon. Is that the article you were referring to?

  • Yeah. I mean, I think -- I don't know what we expected, actually, when we went to this film, when the news of this investigation was made public, but there was no comment from the Mirror Group about the behaviour of the journalists at The People or the Sunday Mirror, and the PCC did nothing apart from occasionally write things about the film, and the journalist, Nick Owens, stayed in his job and he's there, he still works for them, as I speak. And I just thought because I was making a film about Chris Jefferies and I was researching articles on that and it struck me that Nick Owens wrote an article about Chris Jefferies, about him being obsessed by poetry and how this basically indicated that he might be a murderer, and it just struck me that maybe if the Sunday Mirror had done their job and disciplined him or if the PCC had investigated and he had lost his job, basically, for trying to buy medical records, then maybe this article wouldn't have been written, and this article was subsequently found to be very libellous and defamatory and the Sunday Mirror had to pay damages. So I think it was just a general point that if they'd disciplined him and moved him on, then maybe this article wouldn't have been written. But as I say, no one really did anything as a result of the film.

  • Can I touch on the meeting that you had with News of the World?

  • I think we can agree that Ms Numar(?) was much more cautious than the others?

  • Can we park her on that basis.

  • Please do. Sorry, to return to the point I made about still breaking the rules because she was trying to set News of the World up as a data controller. So she was still asking me to impart verbal information to her that had no public interest so they could store it, and this is obviously in breach of the Data Protection Act. But I completely agree; she was much more cautious than the other two.

  • Can we agree, though, a number of things about this medical records sting. All of the newspapers you spoke to did recognise that there were difficult confidentiality issues involved?

  • Yeah. The confidentiality -- actually, I had a look for that word. Nick Owens talked about confidentiality issues, but mainly as something to be overcome, to be sidestepped and basically something that needed to be overcome, and he didn't think there would be a problem overcoming them, and actually confidentiality issues were mainly talked about -- in fact, I think wholly talked about in the context of protecting source, which to be completely fair to them, they did all say that we would go to extreme lengths to protect the source. However, I also find that quite self-serving, because they'd also want to protect the fact that it came from a breach of the DPA, which is why they were talking about hinting that the story had come from somewhere else.

  • Can we also agree that none of the newspapers committed to publishing any of the information based on medical records?

  • No, we didn't want to go anywhere sort of near there. We couldn't jeopardise them actually printing something, because this isn't about Sarah Harding being secretly into quantum physics. This is obviously a story about plastic surgery. So we went, I think, as far as ethically we could and should have done to prove that had the stories been true and had we had documentation, they would have printed them, and I think that's fair to say in the case of The People and the Sunday Mirror. But no, of course they didn't actually do that and that would have been grossly irresponsible for us to have even risked that.

  • I'm going to come on to the public interest in just a moment, but let me touch on one thing. A number of journalists seem to think it might be okay to publish the story if the story was funny.

  • Does that make it better, in your view?

  • No. Whether a story is funny or not is -- I don't think should have any bearing -- I'm not a lawyer, but I don't think it has any bearing in law of whether it's a defence --

  • I don't think it's defence. That wasn't Ms Patry Hoskins' --

  • I don't think it's a question of a defence. It's a question of whether you think it makes it different.

  • No, certainly not in terms of something about someone's private life.

  • So public interest. In the sting, the journalists you spoke to did state that records could be used to publish a story if it was in the public interest. A number of them do actually say that in terms. But in your view, would any of the stories that you were describing -- so Gemma Arterton's gastric band, one of Girls Aloud having a boob job -- would any of those be in the public interest?

  • No. No. We sort of crafted them as -- I say "crafted" -- we created them as such, so we wanted to pick things that definitely could not qualify in the public interest. I find it hard to see how any story of a similar nature could be classed as in the public interest.

  • A number of them refer to the Fern Britton example, if I can call it that. They said she'd had gastric band surgery, but then when she was asked, "How did you lose the weight?", she seemed to suggest that she'd been eating healthily and exercising and the argument was then: "Well, we're entitled to publish this story because she has lied to the public about how she lost the weight."

    Do you consider the publication of the fact of her surgery was in the public interest?

  • I don't know what the source of the Fern Britton story was. In fact, no one knows --

  • But I think the source is actually important because if, for example, it was her friend or her PA who tipped off the News of the World, and they ran it based on that, that wouldn't involve a breach of the Data Protection Act. That's just someone giving some evidence about something that happens to be true. I think maybe in that circumstance, you could say that has more merit than other stories about being in the public interest, so it has a weight to it. I'm not -- you know, it never went to court, it never went to the PCC, so we'll never know. But in that instance, you could say yes, it had more weight. But crucially that doesn't imply that that covers a breach of the DPA.

    What you're talking about here is a doctor or a nurse selling to a newspaper what happens within the confines of a medical room, and that should be sacred. As I say, I fail to see what public interest there can be for anything -- even if they have made some comments about eating Ryvita, I can't see how encouraging a medical professional to break that could be seen in the public interest in this context.

  • I'm going to ask you some brief final questions. I have two more topics to cover with you. First of all is the release of the film. You tell us at paragraph 96 onwards about the release of Starsuckers and the problems you had?

  • Do you want to summarise for us very briefly, please, the problems that you had distributing the film and having it seen, et cetera?

  • Well, no one wanted to help us, I think, but that's probably because the very people we need to help -- you need to help you when you release a film were all criticised within the film. So people weren't -- all media organisations weren't going to help a movie that specifically criticised them, and I did like to be fair by criticising everyone, so we didn't have very many friends.

    The Film Council was supposed to be giving us a grant -- it's only £5,000, but to help with the releasing costs and just before the film was released, because we were experiencing legal difficulties, they actually pulled out of that, just to give an example of how everyone did run for cover. But on the other hand, some people stepped up and really tried to help us. So the London Film Festival put it out in their festival. Independent cinemas said, "Look, we don't even care if the film is going to be sued. We're going to put it in the cinema because it's really important." And the Guardian obviously gave us a big push and then Channel 4 came in and eventually bought the TV rights. So it wasn't like everyone ran for cover but the majority of the people within the media and the film business just didn't want to have anything to do with us at all, because -- I think they emotionally didn't like the idea that we were sort of criticising our own industry, and also there were these sort of legal threats that sort of exploded in a very sort of short period of time.

  • I'll come back to the legal threats, but let me just take you to paragraph 100. You say that on 15 October 2009, the Guardian ran an article on their front page that you'd been selling fake celebrity stories to the tabloids and then the following day they ran the results of your medical records investigation. You say that the BBC covered this extensively. Did any other newspaper mention the fake stories or the medical records sting?

  • No, no. There was absolutely no pick-up by the British press whatsoever.

  • Come on then to tell us, please, about the legal problems. At 104 onwards you tell us that you had a bit of a battle with the News of the World. Tell us about that as briefly as you can.

  • The News of the World obviously got quite upset that we'd invaded their privacy and they contacted our lawyers. The in-house legal team of the News of the World contacted our lawyers.

  • It wasn't Mr Crone, actually. It was -- I can find out who it was. It was someone who worked just beneath him. It was their in-house legal team, certainly someone working under Mr Crone, basically saying that they felt that their journalists had been libelled and they wanted to basically prevent us releasing that section of the film, even though Tom Crone has said publicly before he wouldn't use libel laws against other journalists.

  • What was the upshot of this? Did they take you to court?

  • No, sorry. The upshot was -- there was three legal teams in one week who all tried unsuccessfully to order us to edit the journalists and the News of the World out of the film, and we basically said, "We'll see you in court", and they went away.

  • You then tell us that the film was released, paragraph 124, and a number of newspapers printed reviews. Did any of the tabloids print reviews of the film?

  • The Express gave us four STARS, which I thought was very nice of them. A nice bit of -- I actually got a nice letter from them as well, thanking us for the first decent bit of publicity they'd had in a long time. But no. I missed The Sun off here. The Sun didn't print a review. So all -- I know all these critics came to see the film because you have a press release that says who came to see it. So they all came to see the film, but none of them wrote reviews. So none of the papers that were criticised printed reviews, no.

  • You say at paragraph 127 that the reaction of the PCC was mixed. What does that mean?

  • It's film parlance. When you say reviews are mixed, it generally means "not good". Yes. Alison Hastings spoke to some journalism students at City University and was apparently very disparaging about the film. Stephen Abell from the PCC wrote a letter to the -- Dublin Times, was it? Belfast Telegraph, basically disagreeing with what I was saying and disagreeing with the general thrust of our arguments.

  • Did you ever ask the PCC to investigate any of the fake stories or the medical records sting?

  • Did I personally ask them to investigate? No, we kind of thought it was something they might have the initiative to do themselves.

  • Did they investigate it?

  • No, not to the best of my knowledge or the knowledge of anyone I've spoken to. We just generally assumed that they would start looking, but they didn't.

  • You then go on at paragraph 132 to tell us that the True Stories strand on More4 acquired the British TV rights for the film and the film had to go through an Ofcom compliance check?

  • Which took several months. You say the film was passed uncut, bar a handful of minor alterations, and they were not relevant to the parts --

  • Elsewhere in the film, yes.

  • Absolutely. Can I ask you this: you said right at the outset that you'd always intended for the film to be shown on television so you'd always had the Ofcom regulations in mind. But you go on to say at paragraph 146 of the statement that although the PCC system is, in your view, is ineffective, the Inquiry shouldn't use Ofcom as a regulator either. Can you tell us perhaps a little about which specific aspects of Ofcom you believe should be avoided?

  • Ofcom's a very sort of tough regulator for television, and I think in some circumstances that's probably quite necessary, but I think when it comes to journalism and current affairs, it's far too onerous. This isn't just my opinion; this is widely held opinion.

    The penalties exacted on broadcasters are such that I think some broadcasters -- and I think sadly in particular the BBC -- almost in fear of an Ofcom complaint will sort of water down their journalism and stories. And we're not talking about celebrity tittle-tattle; we're talking about really important things in the public interest that they will water down, and in some cases not even run cases in fear of what happens when there's an Ofcom complaint. Rather than accepting that every year, someone's going to get something wrong and that's just part of life if you're making this huge output, it's generally felt that Ofcom penalties are so harsh that they have to be avoided at all costs, which means you cannot possibly risk having an Ofcom complaint. And I think that is having a chilling effect on television journalism.

    What is happening now is that technology is completely overtaking this regulatory framework. So you have Ofcom, which looks after television, and you have the PCC which does or doesn't look after newspapers, but newspapers are doing internet TV journalism. There was a story that broke this morning about Bell Pottinger being secretly filmed, which is on the Independent, and they have clips on their news site of some of the undercover meetings. I've done short films for the Guardian which sit outside of Ofcom, but if people are sitting at home and they have the internet wired up on their television, then they can watch the two side by side. So it means that newspapers are able to do TV-esque current affairs programme completely bypassing Ofcom and what you're having is stories that aren't being shown on TV going to newspapers because there's a sort of a less harsh framework.

    Then you also have the Internet, which is completely unregulated.

  • So you have the three regimes: Ofcom, the PCC and nothing.

  • Exactly, and for the viewer at home, they're not aware of this. They're just watching stuff and they're completely unaware of what is regulated by who. And what you, in my view, need to do is just level it and have parity, either of two regulators or just have one regulator. But as more and more newspapers are doing video, this problem isn't going to go away, and you see lots of documentary makers in some cases abandoning television and going and taking their stories to the Internet and to newspapers because they can tell a better story. And I think, you know, the example of today's story in the Independent totally stacks that up. It's a fantastic story and it's video and it's online.

  • Is there anything else that you'd like to say about perhaps reform of the PCC or anything that you'd like to add to what you've just said?

  • I think it's perfectly simple to me and lots of people how the PCC needs to be reformed.

  • To my mind, the newspapers understand one thing, which is money, and I think the undercover meetings that we've shown show that the PCC adjudications are as good as meaningless, really, in terms of correcting behaviour. So if you had a body that could exact penalties and fines, then it would be viewed in the same way that libel fines are, and it's interesting if you look at some of the things that we tried to put out, like Alan Sugar. They said -- we found out they couldn't print anything nasty about Alan Sugar because he's litigious, so therefore the newspapers thought: "Well, we won't touch him." But what would happen if everyone was litigious, or what would happen if this new body could fine newspapers in the way that a litigious celebrity can hire Schillings or whoever to sue? Then the newspapers would self-correct. They would say, "I'm not going to run this story about this person because if it turns out not to be true, I might get fined by the PCC, and if I get fined by the PCC, I might lose my job."

    I think the other thing crucially is the lack of credibility that the PCC has because of the number of editors on the PCC itself, and I think that ruins its credibility if people are complaining to the very people who have wronged them. There's an argument I remember approximate being put forward that basically says that members of the public can't possibly understand how newspapers work. I think that's nonsense. I think it's very easy to understand how newspapers work. I think that's as self-serving argument that's put forward to keep newspaper editors in control of the PCC. So I think you need to sever that link, be independent of the press and definitely independent of government and be able to exact fines.

    The code is good. I wouldn't alter the code. It's just who sort of -- who's responsible for enforcing it that needs to change.

  • Mr Atkins, is there anything you'd like to add?

  • Just one thing on the public interest, sorry.

  • I think the public interest -- it's just the question you asked about how you define the public interest. In my view, it isn't difficult. If you look at when public interest justifies invasions of privacy or breach of the Data Protection Act -- if you look at the MP's expenses, that was a human breach of the Data Protection Act but there was no question of the authorities prosecuting because it was so overwhelmingly in the public interest.

    If you look at some of the undercover filming done by Dispatches on lobbying a year ago or the one today, no one is questioning whether or not this is in the public interest. I think that as a term the public interest has been sadly taken away from where it should be, which is that sphere, and then it's used by tabloid newspapers sort of after the fact as a kind of stick-on to try to justify something that's just invading someone's private life, and I think as a term, it's been just taken out of its correct context, and as even you saw with Max Mosley, they invented details to turn it into the public interest and I think -- I think we almost need a new term for it, like the prurient interest or something. That's the tabloids' legal trick, and this is the public interest over here that justifies proper investigative journalism going on.

  • Thank you very much. Unless you have anything else to say, thank you very much for answering my questions.

  • Thank you very much. Thank you for the work that you've obviously put into the submission you've put in.

  • Can I just say that on behalf of a third party, Caters News Wire -- the news agency, in fact, which put out this story regarding the chastity garter that ended up eventually, having being refused by the Daily Mail and the Mail Online -- I think it's just fair to say in relation to that third party that we do understand that they spoke to Mr Atkins -- or Mr Atkins spoke to them, pretending, of course, to be a PR company. Caters News Wire then spoke to the couple concerned, who Mr Atkins had put them in touch with. They did make checks with the couple before publishing it and they did look at the website, of course, which has been fabricated, and without that deception of the couple and the website, the news wire would not have published the story. I think it's fair to say that.

  • Sir, I think I put that question to Mr Atkins and he said that conversation never took place.

  • Yes, Mr Patry Hoskins did ask about it. Thank you.

  • Sir, that concludes the evidence for this afternoon and I understand that we -- I'm losing track of days.

  • No, no, we have something else to do. Yes, Mr Brown?

  • I indicated to Ms Patry Hoskins that I would be asking you to order that Mr Atkins provides the entirety of the tapes and the covered film footage.

  • Because it's necessary to see the whole of the conversations in context.

  • In order to see in what circumstances a story might have been published and, if published, could have been justified.

  • Can I develop the submission?

  • First of all, let me indicate the material that we are interested in.

  • Have proceedings been commenced for libel?

  • With respect, I'm not sure that that has anything to do with it.

  • But that's the way that you would get discovery of the entirety of the material, isn't it?

  • We suggest, with respect, that it's fairness to the paper and to its journalists, who have been criticised in trenchant terms by Mr Atkins for breaching not merely the PCC code but also the Data Protection Act, that one looks to see from the material in the tapes and the entirety of the material whether there was a basis for the newspaper investigating the matter in order to see whether the material could be justified, either because it was in the public domain -- it had been put there in part by the celebrity; a point that Mr Carling raises -- or in the public interest in the sense that it was necessary in order to correct a public figure who was misleading the public, and the example obviously has been given of Britton, and one sees how that reasoning can be traced back to the House of Lords' decision in the Naomi Campbell case.

    What we know is first of all that there are audio tapes of the conversations on 20 March. They are said to have been transcribed in toto, but we've not had the opportunity to check the accuracy of the transcripts.

    More significantly, there is the video footage of the meetings on 26 March between Mr Atkins and first Mr Owens and then Ms Jellema. We learnt this afternoon that, so far as that is concerned, only half -- only half of the material had been transcribed.

    And finally, there is the issue of any notes of voicemails that were left by any journalist, and in particular by Ms Jellema for Mr Atkins, because it was clear from Ms Patry Hoskins' questioning and the answers to those questions that there is a dispute, an important dispute, as to whether, as Ms Jellema says, the news desk told her that they were going to drop it and she left a note on the voicemail of Mr Atkins, or whether, as he said, the messages on his voicemails were enthusiastic and wanting to pursue this story. So there's an important dispute there --

  • But I don't intend to resolve it, Mr Brown.

  • Well, I understand that the Inquiry's position is that there will be no specific findings in this section of the Inquiry, but on the other hand, an afternoon has been devoted to considering all of Mr Atkins' many complaints against the press in relation to my clients, what he says are blatant illegalities, and the issue -- it's not so much whether or not the Inquiry is going to make a finding, but what in those circumstances is fair, and that's what I don't need to remind you --

  • I am very conscious of wanting to be fair, Mr Brown, and if your clients and the journalists want to submit evidence, then of course, to be fair, it shall be deployed, but I'm not getting into a discovery exercise.

  • Can I just see what I have to say about discovery? The problem is that these conversations took place now over two and a half years ago, back in March of 2009, so the difficulty that we have -- and Ms Jellema is no longer in our employ, Mr Owens is, but the difficulty is the best effort as to what they said would be the full tapes. It's not surprising that they can't recall precisely what was said, and it would be of benefit, you may think, to this Inquiry, to know from the available material all they said in order to gauge what precisely was the position in relation to possible defences, and both Section 55 and Section 32 of the DBA, in slightly different wording, provide for public interest defences, and there is no, as Mr Atkins is suggesting -- and there is no absolute sanctity attaching to medical treatment or hospital treatment. One sees that from the Naomi Campbell case itself, where she was seeking clinical treatment to cure her addiction.

    If I can just list why I say that fairness necessitates the full examination of any record that he may have of anything said and left on his voicemail, but also, and just as importantly, the entirety of the covered film footage, firstly it's the context, as I've said, which may well indicate that the approach that was being adopted was consistent with the PCC code rather than flouting it --

  • I find it quite difficult to see how that might be, out of what we've seen.

  • That is the point. What have we seen?

  • We've seen a distinct chunk. Mr Brown, if I go down this route, if I go down this route, then in relation to each fact -- and we over the last few weeks have heard many, many facts, many allegations, great issues raised by a number of the journals, media representatives who are here -- if I was to do that, then it would be quite impossible for me not to do it in every single case, and I would be here for a decade.

  • Well, I'm not suggesting that it would be necessary, still less desirable, an exercise of discretion in every single case, but what I am suggesting is that it wouldn't be right and would offend basic fairness if you were to take the position that it would never be done.

    And here, where allegations of illegality have been made against my clients and where, if the full covered film footage is examined, there could well be a basis, as I submit there is, for submitting that there was no breach of the code, not likely to be a breach of the code, and no illegality, my contention is that it ought to be possible to look at this material and it will speed the evidence that will ultimately be given by the journalist and their editors.

  • I'm not so sure about that because whereas I'm perfectly happy to receive the evidence, and of course the right of response, if it's necessary, will be considered, I am focused very much on a much, much wider question.

    The fact is that, as I understand it, this film was screened in --

  • -- October 2009, thank you, in other words, within months of the events. I have absolutely no doubt that your clients were on top of the allegations. Doubtless they have responded, and I'd look at a response, but the problem about remembering now is not a new problem. This is something that they've been actually on top of for some time.

  • Can I just direct your attention out of the question of relevance? It would be very different if one of the Inquiry team had looked at the other half of the covered film footage and -- Mr Jay or Ms Patry Hoskins were to say there is nothing relevant there to the issue of a possible defence. But as I understand it, the arbiter of relevance is Mr Atkins himself and it might be said that in that respect, given the strength of his feelings towards the tabloid press, he's somewhat parti pris.

    The other point that I would make is this: he appears to believe that there is some form of journalistic privilege in law which attaches to unedited material. He says as much in paragraph 108 of his witness statement. He's repeated it again today. If material is being held back on that basis, there is, in my submission, no footing in law on which that can properly be done.

  • I understand, but that's not the reason that I would say no.

    What you raise is the interesting question. First of all, I am absolutely opposed to a satellite investigation. I will consider, and I am prepared to consider, whether to ask Mr Atkins to allow a member of the Inquiry team to see or to read whatever else is there. I'd have to discuss that and think about it, but I am prepared to think about that, simply in the spirit of seeking to deal with your concern. But I'm not going to go down the route of disclosure between witnesses and core participants. I'm just not going to do it.

  • Well, you've made that very clear. So far as any safeguard is concerned, that is some consolation if one of the counsel on the Inquiry team looks at it, and in the light of what I've said about relevance to any possible defences --

  • I understand. I understand. I will give that immediate thought.

  • Sir, may I clarify one matter?

  • I just want to make it absolutely clear, on 1 November this we're we wrote to the Mirror Group enclosing a draft version of Mr Atkins' witness statement, making it clear that they were being given a full opportunity to respond to the allegations that were made. We made it clear when serving the notices concerned that you would not be deciding any specific issues. It wasn't an issue of Mr Atkins is right or the journalist is right. The notices contained the most general questions along the lines of, well, "If what is said by the journalist is accurate, what would be the view of your newspaper group?" et cetera, et cetera. There's simply no need, in my submission, for Mr Brown or his client to see the underlying material in those circumstances.

  • But I'm happy to go to Mr Atkins' studio and watch hours of footage, if that would assist. I don't think it's necessary in order to comply with the notices.

  • I'll contemplate that. I don't anticipate it would be hours, because it's a specific video, but I would need to think about it and I would need to take Mr Atkins' views, which I don't intend to do in public at this moment. Thank you.

  • Could I just add that we only got his witness statement last week on 28 November.

  • I'm sorry about that, Mr Brown. You'll appreciate that -- well, I will investigate as to when you got it. I'll look at that question.

  • You'll see that's --

  • I think you've had access to the Lextranet website.

  • Yes, but I -- there wasn't. Herbert Smith tell me it wasn't there until 28 November.

  • We didn't have the full transcripts which are annexed to the statement. The statement itself is dated by Mr Atkins when he signed it, 28 November, so it wouldn't have been possible to serve it on us before then.

  • There was a draft version, Ms Patry Hoskins said.

  • She did say that. As far as I know, we never saw it.

  • I'll look just for the sake of clarity.

  • That's very kind. Thank you.

  • Thank you very much.

    Could I just raise a very different question for reasons which don't need to be elucidated? I am quite keen to understand whether I've correctly understood the position of the core participants who do represent newspapers today. Mr Caplan, can I start with you? It's not a difficult question, I think, but I've always understood that you came for Associated Newspapers representing the editor and the editorial team, such journalists as you felt required representation and also the proprietor, whatever form that was. Is that right?

  • Yes. I think the interests of those people and of Associated Newspapers Limited.

  • Yes. I'm going to ask others that, because it's recently been suggested that proprietors haven't had the opportunity to take part, and I'd rather thought that each of the newspaper organisations who are represented are representing all the strata of the organisations from which they emanate. I just wanted to check that position.

    Mr Brown, is that so for --

  • Yes. It's not any different for us. I mean, obviously if there were to be a conflict between the managers of the paper and a journalist, something different might arise.

  • What I said, I think, at one of the earliest hearings was that this is not the normal contentious litigation, and that I would hope that those who were acting for titles could manage the differences of view perfectly satisfactorily without feeling themselves conflicted from so doing. I'm not going to start saying, "Well, you can't say this because somebody in your team says that". I'm keen to get everybody's help to such extent as they can give it, and --

  • Yes, I understand that, and I've taken a rather less restrictive view than one might have done in ordinary litigation.

    To take the example with Ms Jellema, she talks about the PCC being a slap on the wrist; the editor would say something very, very different.

  • Yes, I understand. Thank you.

    Can I ask the same about News International?

  • This team acts for News International and its subsidiaries and three titles. It's never been relevant as to whether we act for the proprietors of News International. If you'd like me to take instructions on that, I can.

  • I hope you are, and you might obviously like to consider it. It's only because it was suggested that I wasn't listening to proprietors that I felt it right to ask the question.

  • We'll take instructions.

  • I don't think so, unless anyone has anything they would like to raise.

  • Thank you very much. It's Thursday.

  • (The hearing adjourned until 10 o'clock on Thursday, 8 December 2011)