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

  • You have to be a bit careful about the use of the word "unlawful" given the statutory defence, haven't you, Mr Sherborne, which we've not investigated.

  • We haven't investigated it and that's one of my points. But what, in my submission, we have heard is clear evidence of the types of information that were being sought by these newspapers which included criminal record checks, friends and family numbers, DVLA checks and requests for the private numbers of people who deliberately sought them to be ex-directory.

    Listening, as we did, through Mr Gilmour's evidence, to the answers that those few journalists who were in fact questioned, questioned either in the presence or with the knowledge of the legal departments of the newspapers for which they worked, listening to their answers given in synchronised chorus that they didn't know that this material had been obtained unlawfully in my submission was hardly credible. As I say, the sheer number of those types of checks, of criminal records, friends and family numbers and so on, is a testament to this.

  • Again one has to be careful because the officer spoke about seven journalists and that was the entire number that -- considering, of course, they weren't considering Motorman --

  • No, they were not considering Motorman. We've heard from Mr Owens, we're heard from others and we've all seen the material ourselves, so we know the volume and we know the nature of the checks that were being carried out at the request of a number of newspapers. That's why I say it is reflective of the culture, practices and ethics of the press one doesn't need to single out precisely which newspapers were involved or who did what to whom and when.

    And we say again it is equally not good enough to say, as Mr Dacre did, for example, and he is but one example, that this was just a quick way of getting information which could otherwise have been obtained lawfully, if journalists had just a little bit more time to do so. A lazy journalistic tool, apparently.

    Again we say the scale and the nature of the checks and requests that were carried out at the request of these newspapers is a complete answer to this. Put simply, these are details which could not have been obtained by wholly lawful means.

    And whether, for example, as Mr Thomas said, this illegal trade in personal information, the victims of which number as many as they are in relation to Mr Mulcaire's activities on behalf of the News of the World, whether, as Mr Thomas said, this is more or less serious than hacking is irrelevant, because both were the unlawful tricks of a very tawdry trade in people's private information. And whilst to greater and lesser extent some of newspapers have put their hands up and admitted to the use of Mr Whittamore, of course they had to because we have seen it in the books that the core participants have been privy to, the answer which has come back from the core participant media organisations is that this is all historic. One core participant, I recall, described it rather optimistically as "very historical".

    Let me explain very briefly why that is not the case and why we say there are questions, important questions, about this which still need to be answered.

    It's not historic for a number of reasons. To start with, it's not historic in terms of the dates alone when these activities took place.

    Just to give you two examples: after all, Milly Dowler's phone was hacked into by the News of the World before Mr Whittamore's offices were raided and whilst he was still plying his very lucrative trade. And when "What price privacy now?" came out, it was in the same year as Mr Mulcaire was convicted. Simply because the full scale of what took place at the News of the World only came to light, despite the company's best endeavours, much later doesn't make what was revealed by Operation Motorman in 2006 historic.

    It is also not historic because as also appeared clear from the evidence of some of the core participant media organisations, these newspapers continued to use Mr Whittamore after his offices were raided, after he was arrested, after their journalists were interviewed, after Mr Whittamore was convicted and even, even after "What price privacy now?" was published.

    But equally important and what makes this far from historic, we say, is the true consequence of this systematic purchasing of people's private information without their knowledge and in flagrant disregard of their rights, not to mention, we say, also the law, over a number of years, and that is, for example, what has happened to the journalists who routinely used Mr Whittamore's services, of which there are many, as the Operation Motorman books reveal? What has happened to the information which they obtained as a result? Has it mysteriously disappeared?

    I wish I could answer those questions, despite having sat in this Inquiry since November of last year, but I can't. Those who can answer it, namely the core participant media organisations, we say have never properly done so. And this failure has real significance for the Inquiry because, and I take this as one example only, Mr Caplan, in his opening submissions, like other core participant media organisations have done and no doubt will do as well, placed great store upon the fact that no penalties were awarded against any newspaper for this and no journalist was ever charged.

    We've heard about this this morning from Mr Gilmour, as I said, and whilst the police have explained what they did in relation to this investigation, and the problems that they found, we have had no proper answer from the newspapers.

    We now know as a result of Mr Gilmour's evidence that not only were the journalists questioned, but they were done so with the full knowledge and support of the newspapers' legal departments and also external solicitors.

    There are, we say, questions which need to be answered. Did the newspapers in the face of this mount an aggressive defence, like News of the World did, in relation to hacking, or did they take it seriously and clean out the Augean stables?

    That brings me to the application.

    What I'm not asking you to do, sir, as you invited me, is to seek the names of individual journalists, something to which they clearly object, despite the fact that they are so keen on other occasions to name names, and we're not asking for the unredacted files of Operation Motorman to be published so the public can see them, despite the clear public interest there might be in it.

    What we are asking the Inquiry to do is to require these core participant media organisations to answer what we say are relatively straightforward questions which they have not done so far.

    The first of those is: what steps, if any, were taken in relation to those journalists who used the services of Mr Whittamore? Were they in fact fired? Were they disciplined? Were they admonished in any way? Or are they in fact still working for the newspaper, as we believe, and have even been promoted to senior positions, as we understand it?

    The second of the questions is: what steps, if any, were taken to identify whether any of this information, any of the information obtained through the use of Mr Whittamore, was and is still being retained or used by the newspaper? And if no such steps were taken, why not? And it needs now to take place.

    We say these are questions which are relatively easy to answer, because the core participant media organisations have all the information they need. They have both the internal information as regards what was done at the time and they have all of the Motorman information which was provided to them by the Inquiry.

    Presumably that was one of the reasons why this material was given to them back in December, and it is answers that they can give in writing.

    We say however the logistics are dealt with, these are questions which need to be answered and need to be answered before the end of this Inquiry.

    Sir, that is my application.

  • To some extent, the factual framework which forms the basis of your specific inquiry, and which is postulated by reference to the evidence, also and already speaks to culture, practice and ethics. It's there. And the investigation of culture, practice and ethics is necessary in order to review the extent, if at all, to which the regulatory regime has failed.

    At the end of the day, would you agree with this proposition: the purpose of this Inquiry cannot be to answer all the factual issues not just because of the present police investigation, not just because of what I say for shorthand is the self-denying ordinance, but also because it would be quite impossible to look at ten years of journalistic endeavour across a wide range of titles, to do balanced and fair justice to individual incidents?

    What it's driving towards as I have seen, but help me if you think I'm wrong, is to create what I have called a narrative to justify the conclusions I reach as to the regulatory regime, and the question is: to what extent will I be helped by investigating further specific facts in an attempt to devise the answer to the questions that I have to answer?

    Now, I can quite understand the two specific questions that you have asked. The second is perhaps of greater significance than the first, and I'll tell you why I think that, and I'll let other people comment if they want to in due course. And if not today, then tomorrow, because this is obviously an important matter. I don't want people to feel that they have to respond on the hoof.

    There is a value to the question: what steps have been taken to identify whether this information is still being used? Because that affects the here and now. And I can see an argument that, although I'm not descending into detail, the here and now is important.

    What steps were taken against journalists who used Whittamore, and what is their present position now, is a slightly different question because that really goes to what I make of the answers which I've already received, namely: well, we think this was legitimate. Because I would then have to analyse: well, was it legitimate or what do I make of this answer that all these cases where there is -- if I use the formulation of principle that I discussed some weeks ago -- strong prima facie evidence of breach of the law can be answered by saying, "We accept that, but actually we looked at it" or "we didn't look at it", whatever.

    The fact is that if I consider that to be the case, strong prima facie evidence, then it's important that I introduce, it seems to me, a regulatory regime which copes with that problem, whether or not it was dealt with properly then because of all the other events. It's not just Motorman that I'm talking about, it's not just Caryatid that I am talking about, it's not just the McCanns or the Watsons or the Jefferies. I could carry on with the different stories that we heard last November. Because they all may provide material which allows me to reach conclusions all directed to the recommendations that I have to make.

    And in that regard I bear in mind what Mr Clarke has said, because he wasn't, I think, the first to speak about the problem of the Internet. I think I made the point about it being the elephant in the room very, very early on in the Inquiry, so I'm alert to the problem, and so there's a, if you like, rock and a hard place through which I have to manoeuvre myself.

    But the question I'm really asking, Mr Sherborne, is: I understand the reason for the request and I understand that any one of your clients are entitled and doubtless have gone to the Information Commissioner to find out personal details about them, but I want to know to what extent, for example, your first question helps me solve what I have to do.

  • Sir, I understand that. Can I start by answering that question, or a number of the matters that were raised in the course of that question? This isn't personal to any particular core participant victim, because we fully understand that the task which confronts you, the task which confronts the Inquiry, is to look at the culture, practices and ethics of the press and, in the light of what you conclude about that, to make recommendations as to the future.

    That raises three elements, to my mind. The first is, certainly in relation to Operation Motorman and what we know: what are the facts, what is the evidence about the practices which were revealed by Operation Motorman? I don't need to rehearse those. And the questions I ask are not directed at that.

    But as important, I say, in terms of shining a light on what the practices, culture and ethics -- and I apologise for repeating that phrase so often -- but as important in shining a light on that as the actual facts of what Operation Motorman revealed is the way in which the newspapers themselves dealt with what was revealed, whether they accepted or admitted that it was a breach of the criminal law or not.

  • To some extent we know. If we take Mr Dacre as an example, he said in terms: from this moment on -- I think I have it right -- nobody will use a private inquiry agent.

  • Now, actually, because I am not going to be focusing in on the Daily Mail generally in relation to the wider question of culture, practices and ethics, I could equally take the example of another newspaper, which I believe carried on using Mr Whittamore for some years.

  • And I ask you: is that not enough to say for the purposes of the Inquiry, well, this is a risk against which I ought to be ensuring I am covered, not necessarily to make the system more strenuous upon those who wish to abide by ethical standards, but to raise the bar of enforcement?

  • Yes, and that's of course the third element as to what you do in the light of what you conclude about the practices, culture and ethics, but we're missing out, with respect, the second element, and I'm not directing this at any particular newspaper, and, sir, you give an example of a newspaper that came out with a very clear statement. But there are other newspapers which didn't come out with clear statements.

  • That's what I mean by the second element and that's why we asked the first question, and indeed the second question that we ask.

    Can I put it this way, and I apologise for being colloquial, but the question for you is this: was it cover-up or clean-up once Operation Motorman had revealed what it revealed?

    One only has to look at what happened in the analogous situation of the News of the World and hacking to see why that does throw light, why it's significant, we say, on what you have to consider for the purposes of your report.

  • Let me enter into a debate on that question with you. In fact, for regulatory purposes, I asked the question without reaching a conclusion because I've not thought it through. Does it matter, in this sense: if any solution that I propose for the regulatory regime is going to require or permit a regulator to become rather more engaged in the allegation of wrong and to provide perhaps a swifter remedy, perhaps a cheaper remedy, all the things we've talked about for the future, does it become necessary to answer your question -- and I ask it rhetorically -- and is it possible to answer your question without going into the facts in very much more detail than is possible within the context of all the elements of the terms of reference that I have to address? Do you see the point I'm seeking to make?

  • I understand it, sir, but in one sense, in order to be fair, to use a phrase, to the media core participants. Take two possible scenarios. Take a possible scenario where every single newspaper, when it discovered its use of Mr Whittamore, what had been done, had come out with an unambiguous statement, there was never to be any more use of private investigators, we have looked at everything that we've done in relation to Mr Whittamore and we have made sure that none of the material we've obtained is to be used, all of our journalists have been told that whether it was in breach of the criminal law or not this was something we didn't want to do, if all of the newspapers had done that and that reflected the culture, practices and ethics of the media, then there would be no need for the kind of regulation that you might contemplate.

    Take the other end of the extreme, that none of the newspapers said that, and they all thought that this was in effect something they didn't need to take seriously because, to put it bluntly, nobody in the prosecuting authorities took this particularly seriously, and therefore there --

  • Well, some of them did and some judges didn't.

  • I wasn't going to apportion blame.

  • No, well I'm not -- well.

  • But you see my point, sir. There are two possible ends of the spectrum, and we don't know, because there's been no investigation, where on that spectrum the true state of the culture, practice and the ethics of the press lies.

  • But the truth is that it isn't a binary answer. The fact is that across the spectrum different media interests approached the problem in different ways. But once you have a situation where there are some who are not ascribing to it the significance that I might think it should have, or that a regulator properly informed is likely to think it should have, which is perhaps a better formulation, then I have to create a system that deals with that.

  • Of course, and if you've reached -- and I'm sure you haven't, sir -- if you've reached a conclusion that there were some or say you reach a point somewhere over the summer or whenever it is that there are some media organisations that didn't take it seriously enough, then of course you would come up with that at stage 3 with some regulation which would deal with that, which would impose checks where internal checks had failed. But, in my submission, in order to get to that point, in order to get from A to C, you need to go through B first.

  • Well, yes. The question is --

  • And that is why question one is framed in the way it is and question two, I hope, needs no further elaboration.

  • I understand about question two.

    All right. We have certainly identified your concerns. I think it's probably sensible that they are addressed by the media core participants, and I'm happy to listen now or I apprehend that over the next day or so we do not anticipate that the evidence which we've organised will take all day, and therefore if people would like to just reflect upon the issues that you've raised -- and I notice that you're suggesting written responses, which is something to be taken into account -- then it may be that's the most sensible thing to do.

    Let me just ask Mr White and Mr Caplan, because they're the ones who are here, whether they want to respond or whether they want to think or what the position is.

  • My Lord, we'd like to reflect.

  • Likewise, please. I think it's convenient, maybe we could deal with it tomorrow or in writing, whichever suits you, sir.

  • Yes. I'm trying desperately not to generate yet more written rulings, not least because I think I've issued three in the last eight days, and I'm happy to avoid having to do yet more and more, simply because it all creates more and more work, whereas I think this is very much a -- and creates work for you as well.

  • Yes. We certainly wish to respond, if I may say so, forcibly.

  • But maybe it could be tomorrow.

  • Yes. Let's see if we can find the time to do it.

    I can understand why the second question could legitimately call for an answer for all sorts of reasons, which would not trespass on the overall impact of the work of the Inquiry, but might come under the description "fair enough". You've heard what I've said about the first. I'm not ruling upon it. I see the point that Mr Sherborne makes, because it just provides another couple of dots for me to join up in the analysis, but on the other hand I'm sure you've understood that I am focusing very much on the recommendations that I have to make and that must be in the context not merely of Motorman, but also Caryatid and all that has flown since, including the many stories that we've had of less than satisfactory journalism to put alongside, I say immediately, the very fine journalism about which others have spoken.

    All right. I think we'll call it a day there. 10 o'clock tomorrow. Thank you very much indeed.

  • (The hearing adjourned until 10 o'clock the following day)