Thank you.

First of all, I don't say that there's a public interest defence. I'm merely trying to put myself back in how we reacted to certain legal decisions in 2002, 2003. And, well, there are those who think that the legislation was constructed to achieve just what you ...

There might well have been, but I didn't take it. I'm sorry, you will have to ask the former Commissioner, Richard Thomas.

Um ... I wonder whether -- well, let me accept that the paper trail is sufficient and complete. In that case, you would be right, and then it's a question of: is there a public interest defence?

Now, I think I heard some remarks from you, sir, earlier that -- how could ...

Well, the investigations might have been thwarted but I think the tenor of your questions is: shouldn't you at least try? I think I agree with that.

Which is: why should a journalist respond to our request for interview? The Commissioner has no power of arrest, has no power to compel people to speak to him. These -- we would be seeking to interview journalists presumably as prospective defendants to a criminal action. They would have to be ...

I think that takes me to the third point.

No, absolutely not.

Not in so -- no, because the time -- my discussions predate that. I'm thinking back to my discussions in 1996 on how one might implement article 9 of the directive, and certainly concerns were expressed to me then about -- I have a particular meeting in mind and certainly concerns were ...

Yes. But local newspapers have been concerned about the way that, for example, defamation has been used to put them in some financial difficulty, and I wouldn't want -- I wouldn't want a data protection legislation to simply be another rod to beat their backs with.

Um ...

Certainly about being very careful. I -- yes, this is a rather short statement and rather compressed. I don't wish -- I don't wish to speak up for or be seen to be speaking up for the practices that have already been exposed to the Inquiry, but I suppose I ...

Yes.

Yes.

I -- so far as I can tell, it is an approach I would have taken at the time, it's the approach I've taken for a long time, but memory plays tricks, so you will forgive me if I'm being cautious. But it is certainly -- perhaps because of ...

I certainly had views, anyway, yes.

And I was on leave that week. My diary shows it. I -- well, yes, I'm sure in retrospect it would have been -- one could well say: wasn't this big enough for the whole of the management team to be involved?

Am I surprised? I'm disappointed. Not necessarily surprised. I know that there was, because it's in my diary, a -- what must have been a fairly substantial briefing session in August 2003.

Yes.

Myself and another deputy. One, two, three, can't remember, four assistant commissioners. Several -- then the -- what are we talking about? A management team of -- I'm trying to think. It would have been the -- possibly 10 or a dozen very senior people.

Well, the total staff now, of course, is about 300.

Well, there are, of course, two deputies.

Yes.

I think that's why I said to Mr Jay that had I been asked at the time, my view would have been we should at least have pursued investigation of journalists.

Oh yes. Sorry, not in 1996, no. That was Elizabeth France. Elizabeth France retired in 2002. Richard Thomas became the Commissioner in late 2002.

Let me see. I -- there are two elements to the legislation. There's the enforcement powers of the Commissioner and they are hedged around with lots of complex procedure to make it very -- well, actually to make it rather difficult for the Commissioner to take enforcement action against the media ...

Yes.

Yes.

Yes. In -- the framework directive '95/46/EC was adopted in October 1995, and it contains in article 9 a provision permitting member states to adopt exemptions necessary to protect journalism and similar freedom of expression. We, the Commissioner and I, set about talking to media representatives to see if ...

I have -- not only do I have no recollection of saying that; it is simply the sort of thing I would say and, as I say, it does not reflect my views of -- or indeed my previous practice of dealing with the media.

It certainly wasn't my thinking, and indeed, I would have -- no, if I'd been asked, I would have said we ought to look further. I'm sorry, you will have to ask the Commissioner -- or the former Commissioner for his views.

I have no recollection of being asked did I think we should bring proceedings against journalists, and if I had been asked, I suppose I would have taken it in two steps. First of all, I would want to know that we had investigated sufficiently thoroughly to justify that, and ...

You mean over the whole range of activities of the office? It would depend. Activities were divided. I think I said I spent most of my time by that stage on policy matters, particularly European ones, and I had quite a considerable degree of independence within that area. I think ...

Well, I think they would only have been casual ones. Certainly, I have no recollection of -- I have no recollection of, for example, full briefing material on the basis of which one could take decisions. I simply was not involved to that depth. It might well be that Richard Thomas ...

Oh dear. I'm afraid I cannot recall.

Yes, but I say -- I don't recall the discussions but it might well be that Richard and I had talked about it. There was certainly discussion about the Blackfriars verdict, how disappointing it was, what way should we go, but I'm afraid I can't add to that.

Well, there was certainly some discussion, the detail of which frankly I can't recall, but you rightly express the view held in the office, and that would have been the subject of discussion. But as I say, the detail of it I'm afraid I don't recall.

Yes.

I think that's right.

Yes.

Do I have that?

The first time I've seen it was this morning.

Had I applied to my mind to the costs of a Motorman prosecution? No, I was never asked to. But the question about "the press are too big to take on", simply not my view. Certainly not the sort of language I would have used, and I think I would ...

I'm sorry, I was responding to the question about expense.

"... or now."

No.

In connection with this case?

I can't remember when responsibility transferred from the Home Office to Lord Chancellor's Department, but whichever sponsoring department it was.

I think we are.

No, and if I might comment on the expense of prosecution, the practice of the office would be -- if faced with a very expensive investigation or prosecution, would be to approach the sponsoring department, the Home Office, then LCD, Ministry of Justice, and say, "Look, we might be at risk ...